MOTION HEARD: DECEMBER 14, 2016
COUNSEL: Adam Theofanidis for the plaintiff/moving party Fraser Chorley, student-at-law, for the defendants/responding parties
ENDORSEMENT
Master R. A. Muir –
1.
Overview
This is a motion brought by the plaintiff pursuant to Rule 34.15 of the Rules of Civil Procedure, RRO 1990, Reg 194. The plaintiff seeks an order requiring the defendants to answer their undertakings along with certain questions refused by the defendant Ryan Taylor (“Ryan”) at his examination for discovery. The plaintiff also requests an extension of time pursuant to Rule 48.14(4).
This is a claim for damages for personal injuries and related claims as a result of a single vehicle car accident that took place on October 1, 2009.
The defendants have consented to the relief with respect to the extension of time and that order was signed by me on December 14, 2016.
The defendants have also agreed to answer any outstanding undertakings. I am therefore ordering that they do so by January 16, 2017.
Ryan refused to answer a number of questions on his examination for discovery. Those questions are set out at Schedule A to the plaintiff’s motion record. Refusal 14 was withdrawn by the plaintiff. Ryan has agreed to answer Refusal 17 and I am ordering that he do so by January 16, 2017.
First Category of Refusals: Pre-Accident Health and Behaviour
The remaining disputed refusals can be conveniently grouped into two categories. The first category is comprised of questions generally relating to Ryan’s pre-accident emotional and physical health and behaviour. These are Refusals 9 to 13, 15, 16 and 18. The second category involves questions about any statements Ryan may have made after the accident with respect to how the crash happened. These are Refusals 1 through 8.
In my view, the first category of refusals must be answered. Counsel for the defendants sent an email to the plaintiff’s lawyer on October 3, 2016. The email was part of an exchange of correspondence between counsel with respect to the defendants’ outstanding discovery questions. In that email, the defendants’ lawyer stated that Ryan will answer the refused questions in relation to the pre-accident records but not the questions relating to Ryan’s alleged post-accident statements. This position is repeated in the defendants’ responding affidavit filed on this motion. It was only on the morning of the argument of the motion that Mr. Chorley advised counsel for the plaintiff that the defendants were maintaining their initial position on all refusals.
In my view, the October 3, 2016 email and the responding affidavit amount to an agreement by the defendants to answer the pre-accident questions. It is true that the October 3, 2016 email is marked “without prejudice”. However, no language can be found in the text of the email that would lead to the conclusion that the offer to answer the pre-accident questions was somehow conditional on the plaintiff withdrawing the other refusals or otherwise compromising her position on this motion. More importantly, however, the exact same unconditional language is used in the responding affidavit which attaches a copy of the email. In my view, the defendants agreed to answer the pre-accident questions unconditionally. As a result of this agreement the questions became undertakings. Refusals 9 to 13, 15, 16 and 18 shall therefore be answered with the defendants’ other outstanding undertakings, on a best efforts basis, by January 16, 2017. For the purpose of clarity, these questions need only be answered and documents produced for the time period before October 1, 2009.
Second Category of Refusals: Post-Accident Statements
The second category of refused questions seeks information relating to any statements Ryan may have made after the accident about how the crash took place. This is a very unusual accident. Ryan was the driver. The plaintiff was in the front passenger seat. Ryan’s story is that the plaintiff suddenly grabbed the wheel causing it to leave the road and crash into a tree. The plaintiff’s story is that Ryan threatened to crash the car and then took his hands off the steering wheel, thereby causing the accident.
These are two very different stories. Only two people know the truth. This does not appear to be the kind of liability issue that can be determined on the basis of independent witnesses or expert accident reconstruction evidence. The trier of fact will have to decide which version of events is most likely to be true. The credibility of the plaintiff and Ryan will probably be an important subject at trial. Nevertheless, questions that are directed solely to the credibility of the witness are not proper discovery questions. See Rule 31.06(1)(b) and Sangaralingam v. Sinnathurai, 2011 ONSC 1618 (Div Ct) at paragraphs 27 to 34.
Sangaralingam involved very similar questions and arguments to those presented to the court on this motion. The plaintiff in Sangaralingam sought information about the contents of a statement one of the defendants had made to his insurer. The plaintiff argued that the question was proper because he was simply seeking facts and other information about the accident and any other material issue. The Divisional Court disagreed. The court placed emphasis on the fact that the defendant in question had given discovery evidence about the accident and the plaintiff had a full opportunity to ask questions and clarify the defendant’s evidence. Moreover, the court noted that there was no suggestion the defendant in Sangaralingam had difficulty remembering what had happened. The Divisional Court therefore concluded that the only purpose of the question was to find out what the defendant had told his insurer. The court viewed such a question as being asked solely for the purpose of credibility.
In my view, this is precisely the same situation the court faces on this motion. Ryan has given his discovery evidence about the events leading up to the accident. He was examined at length and in detail about the events of the night the accident happened. The transcript from his examination provides detailed evidence of his version of events. It includes an almost minute by minute account of his activities, where he was, who he was with, what he drank, what was said by whom, and so on. His evidence includes specific details of the minutes leading up to the accident and specifics of his version of the crash. Only rarely does Ryan answer any question by stating that he was uncertain or unable to remember. There is simply no indication that he has any difficulty remembering the events in issue.
For these reasons, it is my view that this group of questions was asked solely for the purpose of finding out what Ryan may have told others about how the accident happened and not for the purpose of obtaining facts and other information about the accident. I am unable to distinguish the facts before the court on this motion from the facts found in Sangaralingam. That decision is binding on this court. Refusals 1 to 8 need not be answered.
Costs
If the parties are unable to agree on the issue of the costs of this motion they shall provide the court with brief written submissions by January 16, 2017.
- Finally, I wish to thank counsel for their well prepared and helpful submissions.
December 15, 2016
Master R. A. Muir