Court File and Parties

COURT FILE NO.: C-1041-13

DATE: 2016-12-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Shawna Barrie Plaintiff

– and –

TD Insurance Meloche Monnex, Jane Doe, Brian R. Book, Julie Anne Book and Jade E. Book Respondent

COUNSEL:

C.E. Gluckstein, for the Plaintiff

G.H. Yu and J. Sweitzer, for the Defendant, TD Insurance Meloche Monnex

C.L. Dickinson and L. Rodenburg, for the Defendants, Brian R. Book and Jade E. Book

HEARD: In Writing

BEFORE: The Honourable Mr. Justice D.J. Gordon

Reasons for Decision

[1] The plaintiff’s motion for leave to appeal to the Divisional Court from the order granted by Harper J. on September 14, 2016 was heard in writing pursuant to Rule 62.02(2), Rules of Civil Procedure. For the reasons that follow, the motion is dismissed.

Overview

[2] This is a personal injury action resulting from a motor vehicle collision, said to have occurred on January 9, 2013. The statement of claim was issued on November 27, 2013 and amended by order granted August 28, 2014. The plaintiff claims general and special damages of $2 million, alleging serious, permanent and lasting injuries.

[3] Each of the defendants, in their respective statements of defence, deny liability and allege the plaintiff’s condition results from pre-existing complaints.

[4] Examinations for discovery of the plaintiff occurred on October 13 and November 24, 2015. Numerous undertakings were given, several questions were taken under advisement and refusals were made to a number of questions.

[5] The defendants brought a motion, first returnable on July 28, 2016, to compel answers to the undertakings and refusals. The motion was adjourned to August 4, 2016. On the return date, a consent order dealt with the undertakings. The refusals component was adjourned to September 14, 2016 for hearing.

[6] Following submissions of counsel, Harper J. delivered oral reasons and directed the plaintiff to produce various accident reports and medical and related records, some dating back to 2000. The handwritten endorsement identifies the documents by reference to the refusals chart. Costs were awarded to the defendants in the amount of $1,500.

[7] The plaintiff now seeks leave to appeal to Divisional Court from the decision of Harper J. For reasons unknown, counsel for the plaintiff did not file a transcript of the oral reasons. In result, I am left with conflicting evidence as to what was said by Harper J. in exchanges with counsel and in his decision.

Motion Is Out Of Time

[8] The order was granted on September 14, 2016. Pursuant to Rule 61.03.1(3), the motion for leave to appeal had to be served within 15 days, namely by September 29, 2016.

[9] The motion is dated September 29, 2016. The affidavit of service of Donna Miller, sworn October 3, 2016 indicates she served counsel for the Book defendants on October 3, 2016 at 4:43 p.m. By application of Rule 3.01(d), service of the motion is deemed to have occurred on October 4, 2016. The motion was not served on counsel for TD Insurance at that time. Rather, it was served with other material on November 2, 2016.

[10] The motion was filed on October 3, 2016. Pursuant to Rule 61.03.1(6), the moving party shall file their materials with proof of service within 30 days after filing the motion for leave to appeal, namely November 2, 2016. The affidavit of service of Donna Miller, sworn December 5, 2016 indicates she served counsel for each of the defendants on November 2, 2016 with the “Record of Motion for Leave to Appeal, the Appellant’s Factum and Book of Authorities”. The Motion Record, however, consists of two volumes. Counsel for each of the defendants reports receiving only volume 1 on this date and that volume 2 was received by the defendants Book on November 3, 2016 and by the defendant TD Insurance on November 7, 2016. This evidence is not denied by the plaintiff.

[11] Despite being informed of the non-compliance with the requirements for service of both the motion for leave to appeal and the materials, counsel for the plaintiff has not presented a motion seeking an extension of time under Rule 3.02.

[12] Compliance with the Rules of Civil Procedure is mandatory. In the absence of a request to extend the time for service, this motion is out of time and must be dismissed. I so order.

Merits of Motion for Leave to Appeal

[13] Notwithstanding the above, I propose to briefly comment on the merits of the motion having regard to the tests in Rule 62.02(4)(a) and (b).

[14] On my review of the material filed to date, this was a routine motion regarding undertakings and refusals. The focus is on relevancy and proportionality. As I understand the situation, the plaintiff had produced records from 2008. The defendants sought records from 2000.

[15] The plaintiff’s own medical expert identified prior and similar complaints from the plaintiff since at least 2008 and that the plaintiff reported many of the same symptoms prior to 2008, including chronic pain and other matters since an event in 2000-2002. The references in the medical report are not, in my view, a “standard disclaimer” as suggested by counsel for the plaintiff. Rather, the physician is identifying prior matters that are relevant to the current state of affairs.

[16] With historical complaint of some significance, multiple prior events or accidents, and a present claim for $2 million, production as ordered clearly is proportional. Causation is an obvious issue and these documents are necessary. I fail to see, for example, how the plaintiff’s medical expert can properly present an opinion in the absence of full disclosure and production.

[17] No conflicting decision with respect to a difference in principle was provided, only a different result. I see no reason to doubt the correctness of the order or that the decision is open to serious debate. The matter only pertains to these litigants and does not attract appellate review. Indeed, I conclude the appeal would not succeed and leave should be denied.

Result

[18] For these reasons, the plaintiff’s motion for leave to appeal is dismissed. If the parties are unable to resolve the issue of costs, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days of the release of this decision.

D.J. Gordon J.

Released: December 8, 2016