Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pawan K. Dhawan - Plaintiff v. Maria Arnold - Defendant
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Jaime Wilson, for the Plaintiff (Moving party) Grant D. Bodnaryk, for the Defendant (Responding party)
HEARD: October 4, 2016
ENDORSEMENT
Introduction and Background
1This was a motion brought by the plaintiff for an order pursuant to rule 48.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allowing the plaintiff to conduct examinations for discovery of the defendant.
2The trial record in this case was filed in November 2015. A five week jury trial is now scheduled for May 29, 2017.
3The moving party indicates that the main reason examinations for discovery were not conducted prior to passing the trial record, was the belief that liability was not going to be an issue at trial.
4Counsel representing the defendant/respondent argue that the chronology of events and evidence supports the proposition that liability was always a live issue.
The Legal Test
5Counsel representing the defendant's argue that Hill v. Ortho Pharmaceutical (Can) Ltd., 1992 Carswell Ont 351 (Gen. Div.) sets out the test to be applied at para 10:
In order for the plaintiffs to succeed in obtaining the right to further discovery, they must first meet the requirements of Rule 48.01(4). There are many decisions which deal with the consequences of setting a matter down for trial. The significance of setting a matter down for trial is evidenced by, among other things, the fact that counsel setting the matter down for trial must sign a certificate to the effect that everything has been done to place the matter on the list for trial. The authorities make it clear that setting a matter down for trial is not a mere technicality of procedure. Before it can be vacated to permit any further discovery or other interlocutory proceedings, there must be a substantial or unexpected change in circumstances such that a refusal to make an order under Section 48.04(1) would be manifestly unjust. There are several authorities in support of this proposition which Counsel for the defendant cited to me.
(See Kovary v. Heinrich, et al. (1974), 5. O.R. (2d) 365 at page 366 (H.C.J.); Tolbend Construction Ltd. et al. v. Freure Holmes Ltd. et al. (1984), 45 C.P.C. 42 at page 44 (Ont. Div. Ct.); Elder et al. v. Swiss Chalet Bar-B-Q et al., an unreported decision of Master Sandler (November 21, 1983); affirmed in an unreported decision of Mr. Justice Labrosse (January 4, 1984); Lando & Partners, et al. v. Upshall, et al. (1983), 39 C.P.C. 45 at pages 47 to 48 (Ont. H.C.J.))
6If I were to simply apply this test and accept the facts as submitted by the defendant leave would be denied.
7Counsel representing the moving party submitted that the test has arguably been modified or tempered in recent years, citing the decision of BNL Entertainment Inc. v. Ricketts 2015 ONSC 1737, 126 O.R. (3d) 154, at paras. 11 to 14, which indicated the following:
[11] The objective of Rule 48.04(1) is to ensure that matters are not set down until they are ready for trial. This practice avoids delays and the loss of valuable trial time. See Cromb v. Bouwmeester, 2014 ONSC 5318 at paragraph 21.
[12] In recent years a debate has developed in the case law regarding the test to be applied for granting leave under Rule 48.04(1). The more established test requires a moving party to show a substantial or unexpected change in circumstances. See Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740 (G.D.) at page 4, Jetport Inc. v. Global Aerospace Underwriting Managers, 2013 ONSC 2740, 2013 ONSC 2740 (Master) at paragraph 61 and Lugen Corp. v. Starbucks Coffee Canada Inc., 2014 ONSC 7141, 2014 ONSC 7141 (Master) at paragraph 12. This is to be contrasted with a broader approach taken by at least two judges of this court who have held that a finding of substantial or unexpected change in circumstances is not necessary and that the court may grant leave where the interlocutory step is necessary in the interest of justice. See AGC Mechanical Structural Security Inc. v. Rizzo, 2013 ONSC 1316 at paragraphs 21 and 22 and Cromb at paragraph 35.
[13] It should also be noted that there exists a long established exception to the substantial or unexpected change in circumstances test when dealing with inadvertence or where serious matters affecting substantive rights are in issue. See AGC Mechanical at paragraph 12.
[14] I have reviewed and considered the various conflicting authorities cited above and relied upon by the parties. I prefer to follow the line of cases that have adopted the broader approach. In my view, it is desirable for the court to apply a flexible test when exercising its discretion to grant leave under Rule 48.04(1). The court should consider all of the circumstances of the matter before it and make the order that is just in the circumstances of each particular case. This approach is consistent with the overall interpretive provision found in Rule 1.04(1) which requires that the rules be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits."
Chronology of Events
8After taking into consideration the affidavit evidence filed, the facta, pleadings and arguments of counsel, I would summarize the basic chronology of material events in this case as follows:
- The action results from a motor vehicle accident that took place on July 9, 2008 at the intersection of Innes Road and Page Road in the city of Ottawa. The negligence alleged against the defendant was that she took an improper left-hand turn and collided with the plaintiff vehicle.
- The police incident report indicated that the defendant was charged with the Highway traffic offence of performing an illegal or improper left turn. Whether a guilty verdict or a plea of guilty was ever registered for this offence is to this day unknown to the plaintiff.
- The statement of claim was issued on March 17, 2010. The statement of defence filed on August 7, 2010 disputed liability.
- Examinations for discovery of both parties was originally scheduled July 18, 2011. The defendant could not attend due to illness. At this point in time new counsel was retained, Frank McNally, who filed a notice of change in solicitors on October 28, 2011. The discoveries were adjourned to allow Mr. McNally an opportunity to familiarize himself with the case.
- An email sent by the defendant's then counsel on October 27, 2011 indicated the following... "Frank, please have your assistant contact mine to set up a discovery date. My client has cancer and is quite ill (liability is not an issue), and I'll need all you have to examine your client."
- Since the email mediation took place on September 17, 2014 and the material filed during the course of that procedure would indicate that the defendant took the position during the course of that procedure that liability was not admitted. Following the mediation Discoveries were never arranged.
- On May 13, 2005, the plaintiff delivered the trial record.
- Plaintiff's counsel became aware that the Defendant was charged with a Highway traffic offence as a result of the accident, but did not know the ultimate disposition of the charge.
- A pre-trial was conducted on June 10, 2016, and it is likely that counsel representing the plaintiff became fully aware that liability was going to be an issue at trial and was now requesting an opportunity to examine the defendant.
Analysis
9When all is considered it seems to me that this is a case where either plaintiff's counsel legitimately believed that liability was not an issue which would justify the granting of leave for discoveries by application of the more stringent test set out in Hill, or, counsel inadvertently passed the trial record when he ought to have known that liability was still an issue. I believe the latter scenario is the more likely one.
10On the facts of this case, I would apply the suggested approach set out in the BNL case. I prefer the approach suggested by Master Muir in the BNL decision at paragraph 14, over the approach put forward in Hill.
11The simple truth is this would be a straightforward discovery, they could take place in less than two hours or by written interrogatory. The trial will not be delayed as a result of granting leave. The order will stipulate that the discovery and accompanying undertakings will have to be completed within a 120 day window following the release of this endorsement. This negates the principal reason for rule 48.04 which is to "ensure that matters are not set down until they are ready for trial. This practice avoids delays and the loss of valuable trial time" as per BNL. This trial scheduled for May 29, 2017 will not be lost by granting leave, nor will the defendant be prejudiced in any manner.
Order
12I therefore order as follows:
- The plaintiff is hereby to bring this motion pursuant to rule 48.04 (1).
- The defendant Maria Arnold shall attend an examination for discovery on a date to be agreed upon by counsel and in any event no later than 45 days from the date of this order. If the defendant is unable to attend by reason of her age or health (supported by a medical note) the discovery shall proceed by way of written interrogatory within 45 days of the date of this order.
- All aspects of the discovery process including any undertakings requested shall be completed within 120 days of the date of this order, and prior to January 15, 2017.
Costs
13In the circumstances of this case although the plaintiff was successful on the motion, the need for the motion was caused entirely by counsel for the plaintiff. In my view, this disentitles him to any costs. Therefore there will be no order as to costs.
Mr. Justice Robert L. Maranger
Date: October 7, 2016
CITATION: Dhawan v. Arnold 2016 ONSC 6304
COURT FILE NO: CV 15-66424
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Pawan K. Dhawan Plaintiff
AND
Maria Arnold Defendant
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Plaintiff, Jaime Wilson Defendant, Grant D. Bodnaryk
ENDORSEMENT
Maranger J.
Released: October 7, 2016