Kabutangana v. Coachman Insurance Company, 2016 ONSC 6330

CITATION: Kabutangana v. Coachman Insurance Company, 2016 ONSC 6330

COURT FILE NO.: 59811/08

DATE: 2016/10/11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Margret Kabutangana, and Sharon Natukanda and Wilson Kabutangana, by their Litigation Guardian, Margret Kabutangana, Plaintiffs

AND:

Coachman Insurance Company, Defendant

BEFORE: Justice J. C. George

COUNSEL: James Armstrong, counsel for the Plaintiffs

Olivier Guillaume, counsel for the Defendant

HEARD: September 23, 2016

ENDORSEMENT

Plaintiff’s Claim

[1] This action arises from a motor vehicle accident (MVA) that occurred on October 7, 2006.

[2] The plaintiff seeks general damages, special damages, including loss of past and future income, and says she has suffered emotional and nervous upset. She claims to have sustained permanent injuries of a physical, mental and psychological nature.

[3] The trial record was filed on January 30, 2012. The trial was originally scheduled to commence in October 2013, but was adjourned. It was rescheduled to the January 2016 list, but was adjourned yet again. It has once again been set down for trial. A pretrial is scheduled for December 2, 2016. The trial, scheduled to last six weeks, is to commence May 23, 2017. The defendant consented to the matter being set down, and has agreed to these dates.

Defendant’s Motion

[4] The defendant wants an order directing the Children’s Aid Society of London-Middlesex (CAS) to produce all of its files and records respecting the plaintiff Margret Kabutangana, and her children, for a period of five years before the date of the MVA.

[5] It also seeks an order directing the plaintiff to re-attend for discovery, at her own expense, to answer questions arising from the production.

[6] It advances two main grounds in support.

[7] First, it argues that because Hebner J., on September 25, 2015, ordered the production of a CAS summary, which outlined the agency’s involvement with the plaintiff and her family, that this necessarily means the entire file is relevant. I note that the plaintiff was in possession of this summary at the time of its production, and that she unsuccessfully sought leave to appeal the decision.

[8] Second, it suggests that given the nature of the claim, which is, in part, that the plaintiff suffered mental and psychological harm from the MVA, that it should be entitled to fully explore whether other factors contributed to that condition. It relies upon the plaintiff’s examination for discovery where she confirmed the existence of difficulties and challenges in the relationship with her children. It points to that part of her testimony where she confirms seeing a counsellor, at the request of the CAS, due to the parent-child conflict.

[9] The defendant says it would be unfair for it to have to proceed any further without full disclosure of all CAS records respecting the plaintiff and her children.

[10] The plaintiff opposes the motion.

Issues

[11] There are three issues. First, is leave required to bring this motion? Second, if so, should leave be granted? And third, if leave is not required, or if it is and is granted, has the defendant otherwise satisfied the test under Rule 30.10 of the Rules of Civil Procedure?

Background

[12] This was a single vehicle accident. The defendant is the plaintiff’s insurer. The plaintiff pleads she was forced off the road by two vehicles coming towards her. Because no other vehicles were involved, and as the identity of those who she says forced her off the road are unknown, the plaintiff had to proceed against her own insurance company.

[13] The plaintiff has seven children. Two are Family Law Act (FLA) claimants - Sharon and Wilson. The other five were not born as of the date of the MVA, and are not parties.

[14] Plaintiff counsel has previously indicated, confirming in his written materials on this motion, and in oral argument that, while a formal Notice of Discontinuance has not been filed, the FLA claims will be discontinued. Having confirmed this, and there now being no ambiguity, I am going to require that a Notice be filed within 30 days of the release of these reasons. I caution that should the plaintiff not do so, and should a motion be required to strike or dismiss that part of her claim, there will likely be significant cost consequences.

[15] The defendant submits I should place little weight in the plaintiff’s promise, as her counsel had before committed to produce the CAS summary, only to later refuse, thus requiring the motion that led to Hebner J.’s order. I simply reiterate my point in the preceding paragraph. The plaintiff is bound by this undertaking, having confirmed it on this motion, and her counsel has been told what steps must now be taken.

[16] The defendant also points out that plaintiff counsel has previously indicated that the claim for psychological injuries will not be pursued, but has not filed a notice or otherwise confirmed this. The plaintiff’s intentions are unclear in this respect, evident in the fact she has filed psychological reports since her counsel’s communication. An ethical tightrope is being walked here, and plaintiff counsel must use caution. On this issue, the plaintiff has 30 days to confirm, once and for all, the status of that aspect of her claim.

[17] In any event, respecting the FLA claims, given the position taken on this motion, I have no choice but to accept that this is not being pursued. The plaintiff is now bound by this. Respecting the claim of psychological harm, I will proceed as if it is still being pursued and is not going to be discontinued.

[18] The CAS summary gives a broad description of that agency’s involvement with the family. It confirms it has no medical or psychological records in its possession.

[19] The CAS has not attended on this motion, but does not oppose it. Should I grant the request, it has provided draft terms for my consideration.

Is Leave Required?

[20] Yes. Leave is required.

[21] Rule 48.04(1) and (2) provides that:

1. Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

2. Subrule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery;

(b) relieve a party from any obligation imposed by…[requirement for a discovery plan, disclosure of documents or errors subsequently discovered, abandonment of claim of privilege, failure to answer on discovery, disclosure of information subsequently obtained, duty to respond to request to admit, service of expert report], or

(c) preclude a party from resorting to the provisions of rule 51.02 (request to admit facts or documents).

[22] This matter has been set down for trial; with the defendant’s consent. In fact it has been set down three times. A trial had been scheduled at the point this motion was brought. The defendant argues that because the CAS file is relevant, and was relevant before the matter was set down, leave is not required. I disagree.

[23] This is a motion. The rule clearly states, with some exceptions, that no motion can be heard without leave. Subsection (2)(b) does refer to the disclosure of documents, but the documents in question are not in the possession of the plaintiff, and it’s not entirely clear they are in her power to obtain, given the CAS position which is, and has been throughout, it won’t disclose without a court order. In any case, for the CAS file to fall within the exception, its relevance would have to be evident and indisputable. This is not clear, and, notwithstanding Hebner J.’s order respecting the CAS summary (a document that was in the plaintiff’s possession), no other judge has made this determination.

[24] This is not what the exceptions anticipate. It can’t be. Rule 48.04(b)(i) must contemplate documents that are either in the possession of the party, or within their power to obtain; or documents that were either inadvertently missed earlier, or recently discovered.

[25] This is not a situation where a relevant document is being withheld by the plaintiff. While this issue was taken under advisement at the discovery many years ago, the CAS file is not the subject of an unfulfilled undertaking. Rule 48.04 applies. Leave is required.

Should Leave be Granted?

[26] To grant leave, the moving party must establish there has been a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust.

[27] What is the change? And if there has been a change, would not granting leave be manifestly unjust?

[28] There has been no change. The defendant focussed its submissions almost entirely on what it says has been the shifting positions of the plaintiff.

[29] It points out that, initially, the plaintiff suggested she would release the CAS summary, only to be later told she would not, which led to a disclosure motion and Hebner J.’s order. It says an undertaking was given, which was ultimately not satisfied. Even if that is true, I cannot understand why this motion was not brought then. Why would one seek the summary and not the file? This is unexplained.

[30] Respecting any CAS summary undertaking, even if there was highhanded behaviour on the plaintiff’s part, this should have been addressed long ago, and for certain it should have been raised with Hebner J. There is nothing new here.

[31] Beyond that, the defendant learned in 2009, through the discovery process, that the plaintiff had a history with the CAS; that it was on account of parent-child conflict and issues within her home; and that this had caused her emotional upset. This is seven years ago.

[32] Granted, there has been some confusion about FLA claimants, and to the issue of psychological damages, but still, the defendant has known about CAS involvement with this family since 2009, having had years to ponder the entire file’s relevance, and consider whether to bring a motion. In fact, it has on more than one occasion consented to the matter being set down for trial; having done so since its review of the summary.

[33] Setting an action down for trial is not merely a technicality or procedure; Hill v. Ortho Pharmaceutical, 1992 CarswellOnt 351. Since the last time this matter was set down, there have been no substantial or unexpected changes.

[34] It seems to me the respondent is frustrated with plaintiff counsel, and that may be for good reason. However, the CAS file is not any more relevant now than it was before. There was no inducement that had them forego bringing this motion earlier. Even if there were, and I agree this is arguable, it does not explain how this matter has found its way onto a trial list.

[35] I find that, even if the CAS file is relevant, leave should be refused. As Grace J. pointed out in Abel v. Abdirahaman, a refusal motion, a party seeking responses to unanswered questions foregoes the answers when they file a trial record and agree to a hearing date. He found that “the moving party should absorb the consequences of the decision consciously made.” He further found that the production of a new document “does not allow the moving party to rethink a decision already made” regarding past refusals. This is analogous to our case, and directly on point. See Abel v. Abdirahaman, unreported, Court File No. 1440/10, July 19, 2016.

Is The Entire CAS File Even Relevant?

[36] In the event I am mistaken, and if leave should be granted, I would still have to determine whether the entire CAS file should be produced. I now turn my attention there.

[37] Rule 30.10 governs production from non-parties. It provides that:

The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having the discovery of the document.

[38] This is a permissive section. It is indisputable that to grant this motion, which would give rise to a further round of cross-examinations, would inevitably delay the upcoming pretrial and trial. At this stage of the proceeding, this weighs in favour of not ordering production.

[39] Beyond delays and scheduling impacts, is the file relevant? The defendant says it is because of the claim for psychological injuries.

[40] I disagree. The CAS file is not relevant. The defendant argues that because the CAS summary has been found to be relevant, the underlying facts that informed the summary must be as well. And that these facts could only be ascertained through a review of that file.

[41] I find that the summary has the opposite effect. It actually diminishes the potential relevance of the entire file, as it sheds no light on any counselling or treatment the plaintiff has engaged in. We know the plaintiff did seek and receive, through her employee assistance program, the services of social worker Morella Yepez-Millon. The CAS summary does not disclose that those records are in its possession. In fact we know from the CAS summary that its files do not contain any psychological, medical or treatment records.

[42] A neuropsychological assessment was completed by Dr. MacArtney-Filgate, who was retained by the defendant. Dr. MacArtney-Filgate suggests these records would be pertinent to the plaintiff’s psychological status, but makes no related diagnosis. In my view, this position would only make sense if a diagnosis had in fact been made. The Dr.’s opinion in no way demonstrates relevance. It simply mirrors the defendant’s bare assertion that it is relevant to the issue of the plaintiff’s psychological condition.

[43] I would have considered making an order were it confined to the production of psychological records contained in the CAS file. But there are no such documents in the file. I know this.

[44] The request here is vast, expansive and all encompassing. It includes every document pertaining to the plaintiff and all her children; and not just the two FLA claimants.

[45] Finlayson v. Merchant , [2008] O.J. No. 2295 (ON SCJ) is the case most on point as it involved a MVA and a defendant who sought the plaintiff’s CAS records. In dismissing the request, the court said this at para. 17:

This motion to enforce disclosure of CAS records in question amounts to a speculative and unmeritorious fishing expedition for evidence to assist the defence.

Conclusion

[46] I believe the defendant’s request amounts to an attempt to gain information which might assist in an attack upon the plaintiff’s credibility. The fact something might touch upon credibility does not equate to relevance. To the extent there might be relevant information within the file, it is significantly outweighed by the unwarranted invasion of privacy that would result. In other words, ordering production would be a disproportionate response. Any assistance it might provide the defendant and/or court, is outweighed by its intrusiveness.

[47] Rule 29.2 specifically addresses proportionality in discovery. Rule 29.2.03(1) provides that:

In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be reasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

[48] Subsections (c) and (d) both apply, and in this instance tip the balance in favour of the plaintiff’s position.

[49] In the result, the defendant’s motion is dismissed.

[50] If costs cannot be agreed upon, I invite brief written submissions, not to exceed 3 pages in length, in addition to a costs outline. The plaintiff has 21 days from today; the defendant 30.

“Justice J. C. George”

Justice J. C. George

Date: October 11, 2016