ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gina King
Christopher D.J. Hacio, Counsel for the Plaintiff
Plaintiff
- and -
Michael Picard, Intact Insurance Company, Andrew Post and Fabian Bunting
Douglas Treilhard, Counsel for the Defendant, Intact Insurance
Defendants
HEARD: March 9, 2017, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Decision On Motion
Overview
1By motion returnable January 26, 2017, the defendant Intact sought an order for compliance with undertakings given by the plaintiff on her examination for discovery and directing that certain questions that the plaintiff refused to answer on advice of counsel be answered. The motion was adjourned on consent to March 9, 2017 in order to allow the plaintiff to file responding material.
2On the return of the motion on March 9, 2017, the undertakings had been complied with and so the remaining issues were the refusals and the costs of the motion.
Procedural History
3The plaintiff sued the defendants for damages arising from a car accident on April 10, 2012. It is alleged that the plaintiff suffered severe and permanent injuries including a closed head injury and pain in her back, neck, legs and arms.
4In addition to general damages for pain and suffering the plaintiff seeks damages for loss of past and future income, loss of competitive advantage, diminution of income earning capacity and loss of opportunity. Damages are also claimed for past and future healthcare expenses, loss of “handyman” and/or housekeeping capacity and damages for loss of interdependent relationships.
5Intact pleaded that the plaintiff’s injuries and damages were “caused by an accident or accidents before or after the occurrence of the accident” or “by a mental condition or medical problems that predated or postdated the subject motor vehicle accident and are entirely unrelated to it.”
6The examination for discovery of the plaintiff was conducted on July 6, 2016. The affidavit of documents sworn by the plaintiff the same day lists medical information including an OHIP summary from April 1, 2007 to 2014; records from chiropractors, neurologists; and the clinical notes and records from Dr. Johnstone which appear to cover the period from 2003 to 2014. The undertakings given are typical of such an action and relate to production of employment, education and income tax records and production of medical and pharmacy records from three years pre-accident to date.
7Approximately 60 days post discovery, counsel for Intact wrote to counsel for the plaintiff seeking compliance with the undertakings. 45 days later a second request was sent. In mid-November 2016, counsel for the plaintiff responded indicating that, because of the plaintiff’s health, she was unable to attend to sign authorizations. In response, counsel for Intact advised plaintiff’s counsel that the transcript would be ordered and that an undertakings and refusals motion would be forthcoming. Plaintiff’s counsel responded that he was having difficulty contacting the plaintiff. On January 4, 2017, the transcript was provided to counsel for the plaintiff and a firm deadline set for compliance with undertakings failing which this motion would be brought. The undertakings were complied with between January and early March 2017.
The Refusals
Clinical notes and records of Counsellor Julie Woit
8Counsel for the plaintiff undertook to request those records but on the condition that he could “vet” those records and redact anything that was not relevant and advise of the subject matter of the reductions.
Prior car accidents, workplace injuries slip and falls
9Counsel for the plaintiff instructed his client not to answer whether she had been involved in any motor vehicle accidents, workplace injuries or slip and falls within the three years prior to the accident. Similarly, he instructed his client not to answer whether she was involved in any motor vehicle accidents that resulted in any sort of injuries in that period. He did permit questions relating to workplace injuries, slip and falls, and car accidents in which she sustained injuries that might be related to the injury sustained in this accident.
NCDS academic records relating to bookkeeping course in 2003 – 2004
10While acknowledging that the plaintiff’s loss of income claim is based on the plaintiff’s inability to return to school or pursue “something in the bookkeeping area,” plaintiff’s counsel instructed his client not to provide the records relating to a bookkeeping course that she failed to complete in 2003 – 2004.
Analysis and Disposition
11Rule 31.06 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. In 2010, the Rules of Civil Procedure were amended to limit the scope of discovery based on proportionality. The proportionality factors include the time, expense, and prejudice required to answer the question or produce a document.
12The general rule is that relevant documents must be produced in their entirety without reactions based on a unilateral opinion with respect to relevancy. Reductions are permissible when the specified portion is clearly not relevant and there is good reason why the information should not be disclosed. Privilege may be another valid reason for redaction (See for example, McGee et al v. London Life Insurance Company Limited, 2010 ONSC 1408 and Dupont v. Bailey, [2013] O.J. No. 932). The party seeking redaction bears the onus of establishing that the redaction is appropriate. If the parties cannot agree, the court will determine whether the redaction is appropriate.
13With respect to Dr. Woit’s records, the motion is premature. Intact seeks production of the un-redacted records and subject to narrow exceptions, Intact is entitled to the un-redacted records. Whether there will be an attempt to redact records remains to be seen. If that issue arises, then failing resolution amongst counsel, a motion will be appropriate.
14The objection relating to the questions concerning injuries arising from car accidents, workplace injuries, or slip and falls is grounded on the fact that there has already been extensive disclosure of all relevant medical information including an OHIP summary and extensive clinical notes and records. The question sought to be answered is more correctly aimed at confirming that the plaintiff has not suffered any other injury in any other car accident, workplace accident, or slip and fall in the three years preceding this car accident. I order that the plaintiff is to answer that question. If that answer discloses other injuries than she must answer any appropriate follow-up questions.
15The plaintiff alleges that her injuries prevent her from retraining and reentering the workforce as a bookkeeper. As such, the records relating to a bookkeeping course that she failed to complete in 2003 or 2004 are relevant notwithstanding that this attempted retraining took place about 8 years prior to the accident. Those records, to the extent they are available, should be produced.
Costs
16Intact argues that the undertaking motion was necessary. On the evidence, there was never any real attempt by the plaintiff to fulfill the undertakings from her July 2016 discovery until January 2017. It is not the obligation of the party to whom an undertaking is given to chase that undertaking. It is the obligation of the party giving the undertaking to follow through with the undertaking diligently. Undertakings given through the discovery process are a necessary and important part of the litigation process. Actions cannot move forward to resolution without the completion of discovery. The expectation is that all parties will deal with undertakings promptly. Accordingly, even though the undertakings are complied with, Intact is entitled to its reasonable costs of bringing this motion. Similarly, since Intact was largely successful on the refusals motion, Intact is also entitled to costs.
17I have reviewed the costs outline submitted by Intact. The time claimed for legal assistants preparing correspondence is not allowed. Some 17 hours for preparation by two lawyers on a very routine motion is excessive. In the circumstances, Intact is entitled to its costs fixed in the amount of $2,500.00 plus HST for fees and $209.25 for disbursements including HST.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: March 13, 2017
CITATION: King. v. Intact et al, 2017 ONSC 1647
COURT FILE NO.: CV-14-019-00
DATE: 2017-03-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gina King
Plaintiff
- and -
Michael Picard, Intact Insurance Company, Andrew Post and Fabian Bunting
Defendants
DECISION ON MOTION
Newton J.
Released: March 13, 2017
/lvp