Court File and Parties

COURT FILE NO.: 623/13 DATE: August 11, 2016 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Gabriella Cristante, plaintiff AND: Jeremy Philip Grubb and Tiffany Marie Grubb, defendants AND: Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario, third party AND: Cristante Tile Inc., fourth party

BEFORE: MITROW J.

COUNSEL: No one appearing for the plaintiff Allison M. Webster for the defendants Harold W. Sterling for Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario No one appearing for Cristante Tile Inc.

HEARD: March 9, 2016 and May 2, 2016

Endorsement

Introduction

[1] This is a motion by the defendants for an order compelling the third party to provide all information and documentation necessary to satisfy outstanding undertakings and refusals, an order compelling the third party to produce a complete copy of the annual maintenance contract and for an order compelling a representative of the third party to re-attend to complete the examination for discovery.

[2] For reasons that follow, the motion is dismissed with the exception of an order requiring the third party to comply with a best efforts undertaking.

Background

[3] The plaintiff commenced this action as a result of a motor vehicle accident (“the accident”) that occurred on April 3, 2011 on highway 401 east of the Highbury Avenue exit near London, Ontario.

[4] The accident involved vehicles operated by the plaintiff and the defendant, Jeremy Philip Grubb.

[5] In her statement of claim issued April 2, 2013, the plaintiff alleged that she sustained serious and permanent injuries and psychological impairments as a result of the accident.

[6] The defendants issued a third party claim naming as defendant Her Majesty the Queen in Right of Ontario, represented by the Minster of Transportation for the Province of Ontario (“the Crown”). The defendants allege that the accident and resulting injuries were caused by or contributed by the negligent acts or omissions of the Crown, including failure to monitor the weather conditions; allowing snow and ice to accumulate on the highway; failing to apply sand, salt and other substances to melt the ice and snow on the highway in order to provide traction for vehicles using the highway. Other allegations in the third party claim related to the failure to have a proper system for snow and ice removal on the highway, employing incompetent persons, servants or agents to remove or clear snow and ice on the highway and failing to instruct and properly supervise the Crown’s employees, servants and agents in clearing snow and ice from the highway.

[7] The Crown produced Mr. Gordon Start as its representative on discoveries. Mr. Start is employed by the Ministry of Transportation and he is the maintenance superintendent for the London area. He was examined on February 27, 2015.

[8] During Mr. Start’s examination, some requests for information and documentation were either taken under advisement or refused. The motion brought by the defendants relates to some of the refusals and matters that were taken under advisement.

[9] In addition, the motion included what the defendants described as a best efforts undertaking that the defendants allege was not complied with.

[10] Further, the examination was adjourned so that the Crown could provide further information. The defendants seek an order requiring the representative of the Crown to attend for further re-examination.

In the present case, is there a right of pretrial discovery against the Crown?

[11] At common law, there was no right of pretrial discovery against the Crown. The Crown’s immunity from the discovery process, sometimes described as a royal prerogative, exists unless it is taken away by clear and precise language of a statute: Wren v. Superintendent of Insurance, 12 O.R. (2d) 190 (High Court of Justice); Longo v. The Queen, [1959] O.W.N. 19 (Ont. C.A.); Abou-Elmaati v. Canada (Attorney General), 2011 ONCA 95 (Ont. C.A.) at para. 18; and s. 71 of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F..

[12] The defendants’ motion was prepared on the basis that the Crown’s participation in the discovery was compellable and the motion material referred to various rules in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 relating to discoveries.

[13] The Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (“PACA”) specifically provides for a right of discovery against the Crown where an action has been commenced pursuant to PACA. It was the Crown’s submission that the third party action was not commenced pursuant to PACA but, rather, pursuant to the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50 (“PTHIA”). Neither PACA nor PTHIA were specifically referred to or pleaded by the defendants in the third party claim. The submissions of the Crown can be summarized as follows:

a) In the case of default by the Ministry to keep “the King’s Highway in repair,” the Crown is liable for damages caused by reason of the default: s. 33(2) PTHIA;

b) Section 33(7) of PTHIA specifically authorizes an action to be commenced against the Crown under s. 33, and dispenses with the necessity of proceeding by petition of right, or procuring the fiat of the Lieutenant Governor or consent of the Attorney General prior to commencing the action; further, when proceeding under s. 33, the defendant is required to be described (in English) as “Her Majesty the Queen in Right of the Province of Ontario, as represented by the Minister of Transportation for the Province of Ontario”;

c) In the style of cause in the third party claim, the Crown was named as a defendant in the manner required by s. 33(7) of PTHIA;

d) In a proceeding under PACA, the Crown is required to be designated (in English) as “Her Majesty the Queen in Right of Ontario”;

e) PTHIA provides no right of discovery against the Crown in actions commenced under that act;

f) PACA does not affect and is subject to, inter alia, PTHIA: s. 2(1) PACA;

g) The legislative scheme provides that actions against the Crown in relation to maintenance of a highway were intended to be dealt with under PTHIA; in its argument, the Crown referred to the fact that the Occupiers Liability Act, R.S.O. 1990, c. O.2 does not apply to the Crown where the Crown is an occupier of a road or highway: s. 10 (b) Occupiers Liability Act.

[14] In the event that PACA was applicable, submissions were made during the hearing of the motion as to whether the defendants had complied with the notice provisions contained in ss. 7(1) and (3) of PACA.

[15] I agree with the position of the Crown, also articulated in the Crown’s supplemental factum, that any findings as to whether this action can be considered as having been commenced pursuant to PACA and, if so, whether the defendants have complied with ss. 7(1) and (3), were outside the scope of the issues that defined this motion.

[16] For the purpose of this motion only, I find that the third party action, as pleaded, is consistent with the action having been commenced under PTHIA and, therefore, there is no right of discovery against the Crown (see also Longo v. The Queen, supra).

[17] I restrict this finding to the motion only because the Crown, in my view, was entitled to proceed with the discovery process on the basis that the Crown’s participation was voluntary, given the state of the pleadings including the manner in which the Crown was named in the style of cause.

[18] The defendants, in paragraphs 20 – 22 of their supplemental factum, address s. 2(1) of PACA, which is reproduced below:

Acts not affected

2. (1) This Act does not affect and is subject to the Expropriations Act, the Public Transportation and Highway Improvement Act, the Land Titles Act and the Registry Act, as to claims against The Land Titles Assurance Fund, the Motor Vehicle Accident Claims Act, Parts V.1 (Debt Retirement Charge) and VI (Special Payments) of the Electricity Act, 1998, the Workplace Safety and Insurance Act, 1997 and every statute that imposes a tax payable to the Crown or the Minister of Finance.

[19] The defendants submit that “it is not a foregone conclusion that an action commenced pursuant to PTHIA may not also be subject to PACA” (paragraph 22 supplementary factum).

[20] With respect, the defendants’ interpretation of s. 2(1) is difficult to accept; further, PACA and PTHIA have conflicting notice provisions, as pointed out by the Crown.

[21] Further, it would be prejudicial to the Crown to permit the defendants, at this stage of the discovery process, to maintain, now, that PACA always applied to the discoveries; had the Crown been aware of that position, the Crown may have approached the discoveries differently, including a consideration of whether to take a position that the notice requirements of PACA may not have been complied with, and/or whether to bring a motion to deal with any alleged non-compliance with the PACA notice requirements.

[22] The manner in which the defendants structured their pleadings paved the way for the Crown to take the position that its participation was voluntary. It was open to the defendants to have structured their pleadings in a manner that made clear that PACA was engaged, but such is not the case.

[23] If the defendants take the position that PACA is applicable to the third party claim, then it is incumbent on the defendants to so advise the Crown clearly and unequivocally; further, if that requires any amendment to the third party claim, then that should be pursued also.

[24] I accept that the Crown’s participation in the discovery process in the third party action was a voluntary process and not a compellable process; and that the voluntary participation of the Crown is an example of “… a history of cooperation of Her Majesty in the discovery process in civil actions …” (see para. 2 Crown’s supplemental responding factum).

[25] The defendants argue that at no time did the Crown indicate that it was participating in the discovery process only on a voluntary basis. All parties in this case are represented by experienced counsel. I do not accept that the Crown had an obligation to so advise, given the third party claim as pleaded by the defendants. There was no evidence on the motion that any of the counsel broached this topic prior to discovery. Even if it was necessary to broach this topic, that would have been a shared responsibility of all counsel.

Specific Relief Sought by the Defendants

[26] In relation to what the defendants describe as a best efforts undertaking (undertaking number 4) to produce a colour copy of the winter patrol map, that matter was resolved as the Crown subsequently did produce that document.

[27] The discussion below refers to the outstanding issues using the headings in the defendants’ factum.

A. Under Advisements Numbers 1 and 2 – Transcript: Questions 47, 49, 50

[28] The Ministry entered into a contract with Steed and Evans Limited (“Steed and Evans”); this contract was referred to as an annual maintenance contract and was the subject of many of the questions put to Mr. Start. The annual maintenance contract included a requirement for the contractor to complete the winter maintenance work on roadways, including that portion of highway 401 where the accident occurred.

[29] The annual maintenance contract with Steed and Evans was a five year contract effective May 1, 2004, which was renewed for an additional three years; consequently, this annual maintenance contract with Steed and Evans was in effect at the time of the motor vehicle accident.

[30] The annual maintenance contract was not produced prior to Mr. Start’s examination for discovery; a copy of this contract was requested at discovery and the request to produce the entire contract was taken under advisement (under advisement number 1).

[31] The evidence of Mr. Start was that the annual maintenance contract provided for both winter and summer maintenance.

[32] Mr. Wasserman, counsel for the Crown, at the discoveries, indicated during discoveries that he was taking under advisement the production of the entire annual maintenance contract because it is a lengthy document and deals with summer and winter maintenance and that the entire contract may not be relevant.

[33] The follow up request, also taken under advisement (under advisement number 2), was to advise what portions of the annual maintenance contract the Crown was prepared to produce, and then so advise; Ms. Webster, counsel for the defendants, indicated on the record, when asked by Mr. Wasserman specifically what she was looking for, that the information sought included details of the specifications and standards that the contractor must comply with in terms of the provision of winter maintenance services, any requirements for training of employees, and “performance evaluations or supervisory requirements.”

[34] Later, by correspondence, Mr. Wasserman produced some extracts from the annual maintenance contract that were described as follows:

• the Relevant Maintenance Special Provisions contained in Schedule A to AMC 2003-03 [referring to the annual maintenance contract] which contains the Maintenance Special Provisions for Winter Operations Control
• the Table of Contents to AMC 2003-03 and Schedule B Work Area

[35] In his letter, Mr. Wasserman invited a response as to whether there was anything further in the table of contents that was felt to be relevant and Mr. Wasserman indicated that he would consider same; Ms. Webster’s letter of May 4, 2015 advised that there are “numerous sections” within the table of contents that are relevant and some were listed in the letter: section 1, Objectives and Descriptions of the Work Area; section 2 and the relevant contract documents; section 3 and Proponent Qualifications; section 4 and the General Conditions, which address contractor responsibilities, reporting requirements, defective work and Ministry inspections; and section 5, including maintenance special provisions, response time and materials. It was also noted in the letter that within section A there were sections such as section 3 (patrol yards and facilities) and section 8 (communications and records) that have relevance. There was also reference to schedules C, H and P appearing to be relevant (although those schedules were not described specifically).

[36] Ms. Webster, in the responding letter, again requested the annual maintenance contract in its entirety and indicated in her letter that refusal to produce the contract “invites debate” as to what other sections may be relevant. On this issue, Ms. Webster’s letter concluded that if the entire contract is not produced within ten days, then instructions will be sought to bring a motion.

[37] I must dismiss the motion as it relates to undertakings 1 and 2 as there is no basis on which to compel the Crown to provide this information for reasons discussed earlier.

[38] In the alternative, if I am wrong in my conclusion that the Crown is not compellable to submit to the discovery process, then I find as follows: a) I concur that all portions of the annual maintenance contract that in any way deal with winter maintenance are relevant; b) I agree that many of the topics which are listed specifically in Ms. Webster’s letter all appear relevant; c) in the Crown’s “refusals and undertakings chart” it is noted that the annual maintenance contract is lengthy and comprises over 600 pages, including schedules, and that the contract includes also provisions relating to the tendering process; the Crown’s initial factum (at paragraph 19) discusses this document as being over 1000 pages, including schedules; d) accordingly, I would have ordered the production of the entire the annual maintenance contract but allowing for the following to be redacted: i) provisions that do not relate in any way to winter maintenance services, including the tendering process; ii) if there are provisions that relate both to winter maintenance and summer maintenance, then those provisions shall not be redacted, although provisions that relate solely to summer maintenance can be redacted; iii) there should be no redaction of the table of contents and there should be no redaction throughout the contract of any of the headings, including subheadings; and iv) this order would be without prejudice to the right of the defendants or Crown to seek further directions in the event of a dispute as to what should be redacted.

B. Under Advisement Number 3 – Transcript: Question 52

[39] There was evidence that the annual maintenance contract with Steed and Evans, which commenced May 1, 2004, was preceded by a previous contract with Steed and Evans. The defendants requested information as to whether changes were made between the prior contract and the current contract. That request was taken under advisement. That information was not provided.

[40] Aside from any issue as to whether the Crown is compellable to answer this refusal, I do agree with the Crown that the requested information is too remote in time and, as such, is not relevant.

C. Undertaking Number 4 – Transcript: Question 137

[41] This request related to steps taken by Steed and Evans to train its employees in the provision of winter maintenance services; this request was taken under advisement.

[42] The response from the Crown was a refusal. The information was not provided on grounds that the question contemplates training over the life of the annual maintenance contract, which is too broad and not relevant considering the date of the accident. Also, Mr. Start had testified that the winter season runs from November 15 to April 1, and that 30 days prior to and 30 days after the winter season are each referred to as “the transition period”; Mr. Start further testified that there were different requirements for the transition period contained in the annual maintenance contract. The Crown argued that the motor vehicle accident occurred on April 3, which was during the transition period; accordingly, it was the Crown’s position that the defendants “had not established how the training in the provision of winter maintenance would be relevant to the transition period during which the accident occurred” (paragraph 5, Crown factum).

[43] For similar reasons as set out earlier, I find that the Crown cannot be compelled to answer this refusal.

[44] If I am wrong in my conclusion that the Crown is not compellable to submit to the discovery process, then I find as follows: a) the issue as to the training of Steed and Evans employees is relevant and I reject that the question asked was too broad; b) the request as to the training of Steed and Evans employees is relevant in relation to the following alleged negligent acts of the Crown as pleaded in paragraph 5(j) of the third party claim that states: “It failed to instruct and properly supervise its employees, servants and/or agents in clearing the snow and ice from the Highway.”; c) in relation to the Crown’s argument concerning the transition period, I find that the training of employees for work during the transition period is as relevant as training of employees regarding the formal winter period. I interpret the question as seeking information as to the training of employees and/or agents whether during the formal winter period or during the transition periods; and d) I would have ordered the Crown to provide the information requested in relation to steps taken by Steed and Evans to train its employees in the provision of winter maintenance services and this would include the transition periods.

[45] It is also noted that during argument, the Crown took the position that there was no ethical, or other, restriction prohibiting the defendants’ counsel from contacting Steed and Evans directly.

D. Refusal Number 6 – Transcript: Question 209

[46] This refusal related to the defendants’ request to provide information relating to S&B Construction (“S&B”) being a subcontractor of Steed and Evans. The defendants sought information as to the number of employees in the business, training provided and how long Steed and Evans had been subcontracting out this work for the “particular patrol.”

[47] The Crown disputed the relevance of this information, but nevertheless referred to a website maintained by S&B and enclosed a printout of part of the website. The Crown’s refusal and undertakings chart summarized the website information to include that S&B had started a snow plow contract in 2000 with Steed and Evans; that the contract consisted of 15 snow plows that plowed highways 401, 402, 3 and 4 during the months of November to April.

[48] I agree with the Crown that information as to the number of people employed by S&B is not relevant; further, I find that the question as to the length of time that Steed and Evans had used S&B as a contractor has been sufficiently answered from the information provided by the evidence of Mr. Start (questions 198-206) and from the information obtained from the website.

[49] This leaves the request for information as to the details regarding the training of S&B employees.

[50] Again, the Crown cannot be compelled to answer that question.

[51] If I am wrong in that conclusion, then I find as follows: a) the issue of the training of S&B employees is relevant, similar to the training of Steed and Evans employees; b) the reference to “agents” in paragraph 5(j) of the third party claim is broad enough to include subcontractors of Steed and Evans; and c) I would have ordered the Crown to provide the requested information as to the training of S&B employees.

[52] However, similar to Steed and Evans, there was no suggestion by the Crown during argument that counsel for the defendants was in any way constrained in contacting S&B directly for information.

E. Refusal Number 7 – Patrol Diary of Cliff Jones – Transcript: Question 301

[53] The Crown produced a patrol diary created by Mr. Cliff Jones, an employee of Steed and Evans. The patrol diary was for the period April 2, 2011, being the day before the accident. The diary covered the period from midnight to 6:00 a.m.

[54] The evidence indicates that Mr. Jones worked a shift that started on April 1, 2011 at 7:00 p.m., ending 6:00 a.m. April 2, 2011.

[55] A separate patrol record is created for each day; therefore, Mr. Jones would have produced a patrol record for April 1, 2011 for the portion of his shift that day from 7:00 p.m. onwards and then, at midnight, a new patrol diary sheet was started.

[56] The patrol diary indicated three road patrols: at 1:22 a.m., 1:39 a.m. and 2:06 a.m., indicating which roads were travelled for each patrol; for all of the patrols, the roads were described as “bare and dry.”

[57] In another area of the report, there is a section noted as “weather and road information.” There are two entries for weather and road information; the first entry was made at 1:10 a.m. and this is the entry that is the subject of this refusal. The entry at 1:10 a.m. contains information about weather and road conditions and includes information that the temperature was plus 2 degrees, that the wind was “calm” and the road was “bare & dry.”

[58] When questioned as to why the weather observation was at 1:10 a.m., whereas the first patrol was at 1:22 a.m., Mr. Start explained that Mr. Jones had been working since 7:00 p.m. the day before and that the patrol diary for Mr. Jones’ shift from 7:00 p.m. to midnight on April 1, 2011 would be necessary to know where he ended up after his last entry on April 1; with that information it would be possible to know where Mr. Jones was when he made the weather and road observations at 1:10 a.m.

[59] A request was made for the Crown to produce Mr. Jones’ patrol record from 7:00 p.m. to midnight on April 1, 2011. The Crown refused. In its factum (paragraph 25), the Crown’s position was that the requested document is not relevant because the accident took place at approximately 17:50 on April 3, 2011 and that the “patrol diary for the morning of April 1, 2011 relates to events that took place more than 48 hours prior to the accident.”

[60] Again, the Crown cannot be compelled to produce the requested disclosure, for reasons discussed earlier.

[61] If I am wrong that the Crown was not compellable to submit to the discovery process, then I find as follows: a) the location where Mr. Jones made the weather and road condition observations at 1:10 a.m. on April 2, 2011 is relevant; b) in order to understand where Mr. Jones was when he made the observations at 1:10 a.m. on April 2, it is necessary to refer to his entries from 7:00 p.m. to midnight on April 1 – this was the evidence of Mr. Start; c) there is no request being made for the patrol diary from the “morning of April 1, 2011” as suggested by the Crown; d) I find there is no merit to the Crown’s position in refusing this disclosure; e) I would have ordered the Crown to produce Mr. Jones’ patrol diary for April 1, 2011 for the period starting 7:00 p.m. onwards.

F. Undertaking Number 1 – Best Efforts – Transcript: Question 140

[62] Mr. Steve Baxter was a patroller with Steed and Evans; Mr. Baxter’s name was referenced in documents provided by the Crown.

[63] At question 140, the following information was requested regarding Mr. Baxter: how long had he been employed by the company; what his responsibilities were; what training he received; and what his experience had been as of April 2011 with respect to winter road maintenance.

[64] Mr. Wasserman’s response to this request for information was: “We will use our best efforts.”

[65] The Crown’s “best efforts” answer was that Mr. Baxter began employment with Steed and Evans on April 17, 2006. As to the balance of the information sought, that was not produced, it being the position of the Crown that evidence regarding Mr. Baxter’s training is not relevant (see paragraph 18 of the Crown’s factum).

[66] It is first necessary to decide whether the above constitutes “an undertaking.” In his affidavit, Mr. Wasserman, in relation to the use of the words “best efforts,” deposed as follows: a) that neither the word “undertaking” nor any variation of that word was used in the phrasing of the question or Mr. Wasserman’s answer; b) that although the examination process involving the Crown was voluntary, Mr. Wasserman took his role as counsel seriously, including complying with any undertaking; c) being sensitive to the relationship between the Crown and its former area maintenance contractor, Steed and Evans (the latter no longer being an area maintenance contractor), Mr. Wasserman agreed to make best efforts to obtain the requested information; d) Mr. Wasserman made the request for information to Steed and Evans through the Ministry, shortly after discovery; a response was received from Steed and Evans that did not provide any information regarding Mr. Baxter’s training, duties and experience with winter maintenance or services under the contract; e) when the defendants’ motion record was served, Mr. Wasserman reviewed the transcript and productions and summarized that information.

[67] In my view, the specific use of the word “undertaking,” either in the question asked or the answer given, is not a condition precedent to the creation of an undertaking.

[68] An undertaking is an unequivocal promise to perform a certain act; and even where an undertaking is couched in language such as “on behalf of my client, I will obtain such and such,” this nonetheless is a personal responsibility of the lawyer: Towne v. Miller, [2001] O.J. 4241 (S.C.J.) at paras 9-10.

[69] I find that the promise made by Mr. Wasserman constituted an undertaking, albeit a “best efforts” undertaking. It was an unequivocal agreement, or promise, to do something. This conclusion is supported to some extent by Mr. Wasserman’s letter dated April 22, 2015 where he addresses his response to this “best efforts” undertaking under the heading “Undertakings.”

[70] In relation to what is meant by a “best efforts” undertaking, I adopt the following discussion by Power J. in Gheslaghi v. Kassis, 2003 CarswellOnt 5128 (S.C.J.) at para. 7 (adopted with approval in Linamar Transportation Ltd. v. Johnson, 2014 CarswellOnt 10136 (Div. Ct) at para. 14):

7 A promise to use one's best efforts is, in my opinion, an undertaking - an undertaking that must be complied with. On the one hand, it is not a guarantee that the relevant information/documents will be produced. The promise, or undertaking, cannot be ignored. A promise to use one's best efforts, as aforesaid, is an undertaking which a court will enforce and, in appropriate cases, apply sanctions for non-performance where serious efforts have not been undertaken. "Best efforts" mean just what one would expect the words to mean. The words mean that counsel and his/her client will make a genuine and substantial search for the requested information and/or documentation. The undertaking is not to be taken lightly - a cursory inquiry is not good enough. The word "best" is, of course, the superlative of the adjective "good" (good-better-best) and must be interpreted in that light. If a party and/or counsel is/are not able to discover the subject of the undertaking, he/she/it must be able to satisfy a court that a real and substantial effort has been made to seek out what is being requested by the other party. Like any undertaking made during an examination for discovery, a promise to use one's best efforts may be enforced under Rules 31 and 34 and through the court's inherent jurisdiction to prevent abuses. [ underlined portions not in original – my emphasis ]

[71] While some effort was made by Mr. Wasserman to comply with the undertaking, it does not rise to a “genuine and substantial search” as discussed in Gheslaghi and, I find, amounts to an inquiry that is cursory in nature.

[72] Quite likely, the cursory nature of the inquiry may have been influenced by the perception that the information sought was not relevant; this of course overlooked the fact that relevance was deemed to have been conceded by the giving of the undertaking.

[73] In its submissions, the Crown took the position that even in relation to an undertaking, there could be no order requiring the Crown to comply with an undertaking in circumstances such as the present case where the Crown is participating in the discovery process on a voluntary basis; however, when that submission was made, the court was assured that the Crown would give serious consideration and deference to any reasons given by the court.

[74] I find that even where the Crown’s participation is voluntary, when the refusal relates to an undertaking, then the undertaking (and this would include a best efforts undertaking) may be enforced by the court as part of its inherent jurisdiction to control its own process (see also the last sentence in para. 7 in Gheslaghi, supra, where the court refers to enforcing the best efforts undertaking through the court’s inherent jurisdiction to prevent abuse).

[75] Accordingly, the order below requires compliance with the best efforts undertaking, other than the date of hire which was provided.

[76] I add that the above discussion in relation to the best efforts undertaking should not be construed as a criticism of the Crown or Mr. Wasserman. The record establishes that although the Crown participated voluntarily in the discovery process, that significant disclosure was made and, further, Mr. Wasserman in his letter dated April 22, 2015 also provided various other information sought by the defendants event though Mr. Wasserman took the position that the information sought was not relevant.

Re-attendance at the Examination for Discovery of the Representative for the Crown

[77] The defendants point to the transcript at question 304 where, after an off-the-record discussion, Ms. Webster summarized an agreement between counsel as follows: it was agreed to adjourn Mr. Start’s examination; counsel was to provide his position with respect to production of records discussed so far at the examination, including the annual maintenance contract; and counsel was to produce documents that the Crown deemed relevant that have not been produced to date; and thereafter counsel will reconvene to continue the examination.

[78] The Crown does not dispute this agreement and, in fact, arrangements were made for a date to continue the examination.

[79] However, given the position of the defendants as to refusals and failure to provide relevant information, Ms. Webster wrote to all counsel by letter dated August 11, 2015 advising that she was in the process of preparing motion material to compel production of documents, and answers to undertakings and refusals; it was proposed, therefore, that the continuation of the examination for discovery be rescheduled.

[80] In his affidavit, Mr. Wasserman deposed that he telephoned Ms. Webster on August 12, 2015 advising that he would not produce a representative of the Crown voluntarily if Ms. Webster elected to proceed with her motion. Mr. Wasserman deposed that he understood the motion to be a repudiation of any understanding to have a representative of the Crown re-attend for examination.

[81] For reasons discussed previously, I find that in the circumstances of this case, where the Crown is attending voluntarily in the first place, that the Crown cannot be compelled to attend for a continuation of the examination.

[82] If I am wrong in that conclusion, then I find as follows: a) the suggestion made by Ms. Webster to postpone the re-examination was reasonable; in fact, it was preferable to do so in order to resolve ahead of time any issues relating to productions; b) I cannot accept the Crown’s position that Ms. Webster “repudiated” the agreement by bringing a motion; c) clearly the examination of Mr. Start was not completed; further documents were needed to be produced by the Crown so that the examination could then be completed; and d) I would have ordered Mr. Start to attend to complete his examination.

Conclusion

[83] The reality is that counsel were not “ad idem” at the outset as to whether the Crown’s participation in the discovery process was voluntary or compellable; certainly it would have been preferable to clarify this issue at the commencement of the discovery process.

[84] The result was that the defendants and the Crown were operating under a different set of “rules” as to the nature of the Crown’s participation in the discovery process.

[85] I do note that at question 210, which is connected to question 209 (the latter having been dealt with earlier in these reasons in relation to the Crown’s refusal as to information sought regarding the subcontractor S&B), that Ms. Webster specifically asked Mr. Wasserman as to whether Mr. Wasserman wanted to deal with that refusal and Ms. Webster could bring a motion, or could Ms. Webster contact S&B directly. Mr. Wasserman replied: “I’m going to treat it as a refusal and you can bring a motion.”

[86] This response, quite likely unintentionally, was somewhat confusing. On the one hand, Mr. Wasserman preferred the refusal and motion route, but on the other hand a motion would be ineffective to compel the Crown to answer a refusal. This may have been an opportunity to clarify the Crown’s position that its involvement in the discovery process was voluntary.

[87] Also, during his conversation with Ms. Webster on August 12, 2015, Mr. Wasserman deposed specifically that he did not recall whether he mentioned his position that the discovery of the Crown was voluntary. This also may have been an appropriate time to clarify the Crown’s position.

[88] Consequently, it is not surprising, and in fact somewhat understandable in the circumstances, that a motion was brought by the defendants.

[89] As Mr. Wasserman explains in his affidavit, in PHTIA cases the Crown frequently provides both documents and oral information under oath on a voluntary basis “in aid of judicial processes.”

[90] The Crown may wish to consider these reasons and reflect on what Mr. Wasserman described as the Crown acting “in aid of judicial processes.” To be clear, the Crown may wish to reconsider its position where these reasons suggest, in the alternative, that an order would have been made. If the Crown has reconsidered its position, it would be helpful if counsel for the Crown so indicates in the Crown’s costs submissions should costs not be resolved.

Order

[91] For reasons set out above, I make the following order:

a) Within 45 days, the third party’s best efforts undertaking given by Mr. Wasserman shall be complied with, said undertaking being as follows:

i) in relation to Steve Baxter, an employee of Steed and Evans Limited, to advise what training he received and what his experience had been as of April 2011 with respect to winter maintenance services and the provision of services under the annual maintenance contract.

b) The balance of the defendants’ motion is dismissed.

c) If the parties appearing on the motion are unable to agree on costs, then brief written submissions may be forwarded to the trial coordinator; the defendants’ submissions shall be forwarded within 14 days; the third party’s submissions shall be forwarded within 14 days thereafter; and the defendants’ reply submissions, if any, shall be forwarded within 7 days thereafter.

“Justice Victor Mitrow” Justice Victor Mitrow Date: August 11, 2016