Court File and Parties

COURT FILE NO.: CV-14-511957 MOTION HEARD: September 14, 2016 SUPERIOR COURT OF JUSTICE – ONTARIO

Re: WAWANESA MUTUAL INSURANCE, Plaintiff

v.

2096264 ONTARIO INC. o/a MR. TRASH INC., 2332373 ONTARIO INC. o/a MR. TRASH CORP., VISHNU LOOTAWON, JONATHAN LOOTAWON, TINA LOOTAWAN, ANDREW HANIFF and WAYNE RUSSELL, Defendants

BEFORE: Master Lou Ann M. Pope

APPEARANCES: Jonathan S. D. Wakelin, Wakelin & Associates for plaintiff Fax: 416-227-3441

Vishnu Lootawon, self-represented defendant 897 Stonehaven Avenue Newmarket, Ontario L3X 1K7

REASONS FOR ENDORSEMENT

[1] The plaintiff seeks an order to compel the defendants, except Andrew Haniff, (“defendants”) to disclose and produce for inspection particulars of the insurance policy which was in force that insured the garbage trucks involved in the subject incident. In addition, the plaintiff seeks orders that the defendant, Vishnu Lootawan (“Vishnu”), re-attend for an examination for discovery, and that the defendants, Jonathan Lootawan (“Jonathan”) and Tina Lootawan (“Tina”) attend for examinations for discovery.

[2] The defendants, Andrew Haniff and Wayne Russell, are in default as they did not deliver a statement of defence.

[3] This action arises out of unusual facts that are set out below.

Factual Background

[4] This is a subrogated action that arises from an alleged motor vehicle accident that occurred in Newmarket, Ontario on February 26, 2009.

[5] At the relevant times, the plaintiff insured two pedestrians, Dmitry Masko and Nataliya Masko (“Maskos”), who each allege they were struck by one of the two garbage trucks involved in the incident on their driveway at 3157 Davis Drive, in the Town of Newmarket.

[6] The Maskos allege that on February 26, 2009 at approximately 9:00 a.m. a garbage truck, driven by Haniff and/or Russell, was dumping garbage on their property. They claim after they left their house to attempt to halt the dumping, the garbage truck drove directly at them, struck them and knocked them to the ground.

[7] The Maskos filed an application for accident benefits with the plaintiff, Wawanesa Mutual Insurance Company (“Wawanesa”).

[8] In 2011, each of the Maskos commenced an action for accident benefits against Wawanesa pursuant to the uninsured or inadequately insured motorist provisions of their policy. Those actions also named the owners and operators of the garbage truck seeking damages for personal injuries.

[9] The Maskos’ two actions were consolidated in July 2016 and the consolidated action is ongoing.

[10] Wawanesa pled in its statements of defence in the Masko action that it has paid various accident benefits to the Maskos at various times as a result of their claims.

[11] Wawanesa commenced this subrogated action on September 10, 2014. Wawanesa pled that it has paid and/or may be required to pay money damages to the Maskos and/or the costs of investigation or defence arising from the claim. Wawanesa claims for indemnification, and/or damages by way of subrogation and/or contribution and indemnity against the defendants who are responsible for causing or contributing to the Maskos’ losses, and who are responsible to reimburse Wawanesa for any monies paid out as a result of the claim.

[12] Vishnu delivered a statement of defence and counterclaim on behalf of all defendants except, Andrew Haniff, Wayne Russell and Tina Lootawan (“Tina”). Tina was added as a defendant by Order dated June 17, 2016 as it appeared that she may be the owner of the garbage truck. Vishnu represents himself personally. None of the remaining defendants have retained legal counsel.

[13] Wawanesa conducted an examination for discovery of the defendant, Andrew Haniff (“Haniff”), on October 23, 2015. Haniff’s evidence was that at the time of the alleged incident, he worked for the defendants, Mr. Trash Inc., Mr. Trash Corp., Vishnu and Jonathan.

[14] By letter dated October 30, 2015, Wawanesa sent Vishnu its draft discovery plan and requested that he deliver an affidavit of documents and insurance documentation, among other information. Wawanesa’s evidence is that its counsel, Jonathan Wakelin, telephoned Mr. Trash on November 18, 2015 and spoke with a person who stated that “the trucks were insured.”

[15] Although Vishnu did not deliver an affidavit of documents, Wawanesa conducted an examination for discovery of Vishnu on November 19, 2015. Wawanesa’s evidence is that Vishnu refused to answer virtually every question, refused to give any undertakings and refused to produce particulars of the insurance policy that covered the truck that was allegedly involved in the accident. Wawanesa filed the transcript of the examination of Vishnu.

[16] The plaintiff served Jonathan Lootawon (“Jonathan”) and Tina Lootawon (“Tina”) with Notices of Examination to attend an examination for discovery scheduled for July 12, 2016 which they failed to attend. The plaintiff obtained a certificate of non-attendance.

[17] The plaintiff served Jonathan and Tina with a second Notice of Examination scheduled for September 8, 2016 which they failed to attend. The plaintiff obtained another certificate of non-attendance.

[18] Wawanesa brought this motion which was returnable on June 20, 2016. Master Dash’s endorsement states: “Even at court today Mr. Lootawan refused to tell the Court who the owner is.” As there were 74 questions that Vishnu refused to answer and no charts were filed as required by rule 37.10(10)(a), Master Dash adjourned the motion to September 14, 2016 and ordered that Wawanesa serve a refusal chart by June 30, 2016 and Vishnu serve a responding chart and any affidavit evidence upon which he relies by August 12, 2016.

[19] By the time of the hearing on September 14, 2016, Wawanesa had delivered an Amended Motion Record which contained a Refusals and Undertakings Chart as ordered by Master Dash. However, Vishnu had not delivered any responding material. Vishnu advised the court that although he received the Amended Motion Record, because it was not received by June 30, 2016, as ordered by Master Dash, he thought the motion was abandoned. Having refused to grant Vishnu’s request to dismiss the motion, he left the hearing. The motion proceeded in his absence.

Applicable Law – Documentary Discovery and Scope of Examination for Discovery

[20] Rule 30 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”) relates to the scope of documentary discovery. In particular, Rule 30.02 requires that a party must disclose all documents relevant to any matter in issue in an action that are or have been in their possession, control or power, whether or not privilege is claimed.

[21] In addition, any insurance policy which may satisfy all or part of the judgment in an action must be disclosed pursuant to Rule 30.02(3).

[22] Rule 30.02(3) provides that:

A party shall disclose and, if requested, produce for inspection any insurance policy under which an insurer may be liable,

(a) to satisfy all or part of a judgment in the action; or

(b) to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment,

but no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.

[23] A court may order disclosure of relevant documents in the possession, control or power of a party’s subsidiary or affiliated corporation, or a corporation controlled directly or indirectly by the party (Rule 30.02(4)).

[24] Rule 31.06 relates to the scope of an examination for discovery. Subrule 31.06(1) provides that:

A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be object to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination unless the question is directly solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

[25] Subrule 31.06(2) permits a party on an examination for discovery to obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.

[26] Further, subrule 31.06(4) permits a party on an examination for discovery to obtain disclosure of,

(a) the existence and contents of any insurance policy under which an insurer may be liable to satisfy all or part of a judgment in the action or to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment; and

(b) the amount of money available under the policy, and any conditions affecting its availability.

[27] However, no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action. (Rule 31.06(5))

Application to the Facts

[28] Vishnu delivered a statement of defence and counterclaim on behalf of himself personally, Jonathan Lootawon, 2096264 Ontario Inc. o/a Mr. Trash Inc. and 2332373 Ontario Inc. o/a Mr. Trash Corp. On the last page of that pleading he listed the addresses for those parties as 897 Stonehaven Avenue, Newmarket, Ontario. This is the address where Vishnu acknowledged receiving documents such as letters from plaintiff’s counsel as well as the motion record herein at the hearing on September 14, 2016.

[29] I am satisfied therefore that Vishnu believes himself to be a representative of the above-noted defendants.

[30] Although the defendants denied that the alleged accident occurred, they must understand that they are required by law to disclose and produce for inspection any insurance policy under which an insurer may be liable to pay all or part of a judgment in this action. This does not mean that their insurance company is automatically obligated to pay any monies at this time or in the future. Further, this obligation does not alleviate a plaintiff’s onus to prove, for example, that the alleged accident occurred and that the plaintiff sustained injuries. Furthermore, the deemed undertaking rule requires that all parties and their counsel are deemed to undertake not to use evidence or information obtained from documentary discovery, examination for discovery, inspection of property, for any purposes other than those of the proceeding in which the evidence was obtained. (Rule 30.1)

[31] For the above reasons, the plaintiff’s motion at paragraph 1 of the Amended Notice of Motion is hereby granted and the particulars of which are set out at the end of this Endorsement under the subheading “Conclusion”.

Applicable Law - Examination of Vishnu

[32] The plaintiff seeks an order compelling Vishnu to re-attend for an examination for discovery and relies on rule 34.11. Rule 34.11 relates to re-examination by a party’s own lawyer. The correct rules are Rules 34.14 and 34.15.

[33] Rule 35.14(1) states:

34.14(1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limited its scope, where,

(a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections;

(b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined;

(c) many of the answers to the questions are evasive, unresponsive or unduly lengthy; or

(d) there has been a neglect or improper refusal to produce a relevant document on the examination.

[34] Rule 34.14(2) sets out the sanctions for improper conduct of an examination. Where the court finds that a person’s improper conduct necessitated a motion under subrule (1), the court may order the person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the examination. The court may fix the costs and make such other order as is just.

[35] In addition to Rule 34.14, Rule 34.15 deals with sanctions for misconduct by a person to be examined.

34.15(1) Where a person fails to attend at the time and place fixed for an examination in the notice of examination or summons to witness or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question to produce a document or thing that he is she is required to produce or to comply with an order under rule 34.14, the court may,

(a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at his or her expense and answer the question, in which case the person shall also answer any proper questions arising from the answer;

(b) where the person is a party, or, on an examination for discovery, a person examined on behalf or in place of a party, dismiss the party’s proceeding or strike out the party’s defence;

(c) strike out all or part of the person’s evidence, including any affidavit made by the person; and

(d) make such other order as is just.

(2) Where a person does not comply with an order under rule 34.14 or subrule (1), a judge may make a contempt order against the person.

[36] Having read the transcript of the examination for discovery of Vishnu and based on the evidence filed, I find that Vishnu conducted himself improperly on the examination for discovery as the majority of his answers were either evasive or unresponsive and he improperly refused to produce relevant documents. This conduct is in contravention of subrules 34.14(1)(c) and (d).

[37] In particular, my rulings on the undertakings and refusals are located in the column entitled “Disposition by the Court” of the charts contained in the plaintiff’s material, attached as Appendix “A” to this Endorsement.

[38] Therefore, Vishnu shall re-attend at his own expense and answer the questions that he refused to answer based on my rulings on the chart marked “Relevant” or “Proper Question.” For my rulings that state that the question was “Too broad,” the plaintiff may narrow the question to the relevant period of time or to the defendant companies.

Examination for Discovery of Tina Lootawon and Jonathan Lootawon

[39] Rule 31.03(1) permits a party to an action to examine for discovery any other party adverse in interest.

[40] It is plead in paragraphs 8 through 9 b) of the amended statement of claim that in the alternative to Vishnu being the President of Mr. Trash, Jonathan Lootawon or Tina is President. Further, Vishnu refused to answer questions regarding Jonathan and Tina’s involvement in the defendant’s companies.

[41] Therefore, pursuant to rule 31.03(1), the plaintiff is entitled to examine for discovery both Jonathan and Tina Lootawon.

[42] Both Jonathan and Tina Lootawon were served with notices of examination scheduled for July 12, 2016 and September 8, 2016 which they failed to attend.

[43] Therefore, pursuant to rule 34.15(1)(d), Jonathan and Tina Lootawon shall attend at a time and place fixed for an examination for discovery which will be set out in a notice of examination to be served by the plaintiff.

Costs

[44] The plaintiff was substantially successful on this motion. The majority of my rulings were in the plaintiff’s favour. The plaintiff has been forced to spend unnecessary costs examining Vishnu and in having to bring this motion due to the defendants’ conduct.

[45] Therefore, the plaintiff is entitled to its partial indemnity costs payable within 30 days as follows:

(a) by Vishnu fixed in the amount of $1,200 for the costs of this motion; (b) by Vishnu fixed in the amount of $1,200 for the costs of his examination for discovery held on November 19, 2015; (c) by Tina Lootawan fixed in the amount of $600; (d) by Jonathan Lootawan fixed in the amount of $600.

[46] I decline to order substantial indemnity costs given that several of my rulings were not in the plaintiff’s favour.

Conclusion

[47] The defendants must understand that there are serious consequences to failing to comply with the Rules of Civil Procedure and court orders. For example, a court has discretion to strike out a statement of defence and a plaintiff can proceed to obtain default judgment against all defendants. Cost orders can be made against defendants as is the case herein and a plaintiff can exercise its remedies to recover unpaid costs orders and unpaid judgments. This is meant to be a stern warning to the defendants herein. In addition, the defendants are urged to obtain legal advice on this matter.

[48] For the above reasons, the following orders shall issue:

(a) the defendants who have defended this action; namely, 2096264 Ontario Inc. o/a Mr. Trash Inc, 2332373 Ontario Inc. o/a Mr. Trash Corp., Vishnu and Jonathan Lootawon, shall each deliver sworn affidavits of documents as required by rule 30.02(1) within 30 days; (b) the defendants, 2096264 Ontario Inc. o/a Mr. Trash Inc, 2332373 Ontario Inc. o/a Mr. Trash Corp., Vishnu and Jonathan Lootawon, shall produce for inspection every document relevant to any matter in issue in this action that is in his possession, control or power as required by rule 30.02(2) within 30 days; (c) the defendants, 2096264 Ontario Inc. o/a Mr. Trash Inc, 2332373 Ontario Inc. o/a Mr. Trash Corp., Vishnu and Jonathan Lootawon, shall disclose and produce for inspection any insurance policy under which an insurer may be liable to satisfy all or part of a judgment in this action or, to indemnify or reimburse the plaintiff for money paid in satisfaction of all or part of the judgment, as required by rule 30.02(3), within 30 days; (d) Vishnu shall comply with his only undertaking within 30 days; (e) Vishnu shall reattend at his own expense and answer the questions that he refused to answer in which my rulings on the chart are that the question was “Relevant” or “Proper Question”; (f) Jonathan Lootawon and Tina Lootawon shall attend at a time and place fixed for an examination for discovery that is set out in a notice of examination to be served by the plaintiff; (g) Vishnu shall pay costs to the plaintiff fixed in the amount of $2,400 payable within 30 days; (h) Tina Lootawon shall pay costs to the plaintiff fixed in the amount of $600 payable within 30 days; (i) Jonathan Lootawon shall pay costs to the plaintiff fixed in the amount of $600 payable within 30 days.

[49] A copy of the plaintiff’s undertakings and refusals chart is attached as appendix “A” to this Endorsement.

_ (original signed) ___ March 8, 2017 Master Lou Ann M. Pope