CITATION: Rodrigues v. Doe et al, 2017 ONSC 2955
COURT FILE NO.: CV-15-540474
MOTION HEARD: 20170508
REASONS RELEASED: 20170512
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
ASSIS RODRIGUES
Plaintiff
- and-
JOHN DOE AND PERTH INSURANCE COMPANY
Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: Brandt H. Chu Fax: (416) 365-7988 -for the Defendant, Perth Insurance Company
A. Suleman Fax: (416) 661-4377 -for the Plaintiff, Assis Rodrigues
REASONS RELEASED: May 12, 2017
Reasons For Endorsement
I. Background
[1] This is a motion by the defendant, Perth Insurance Company (the “Defendant”) seeking to compel the plaintiff, Assis Rodrigues to answer six undertakings and one question refused at his examination for discovery held on July 15, 2016.
[2] This action arises from a motor vehicle accident which occurred on April 7, 2014 in the Township of Tosorontio in Simcoe County. Mr. Rodrigues alleges that he was side-swiped by a still unidentified driver causing his vehicle to collide head on with a cement barrier. The Defendant was the plaintiff’s motor vehicle insurer.
[3] The plaintiff claims damages in the amount of $1,000,000 with respect to alleged permanent physical, mental and psychological impairments.
[4] Since this motion deals only with 6 undertakings given at Mr. Rodrigues’ discovery and a lone refusal, and given the seemingly uncontroversial nature of the 7 questions at issue, I urged counsel to resolve these issues without the need for further submissions. However, discussions in court and between counsel outside of court failed to result in an agreement.
[5] Shortly after commencing oral submissions, counsel for the plaintiff then agreed to answer the undertakings given at Questions 1, 2 and 3 (to provide copies of the plaintiff’s Brazilian and Canadian passports). Counsel for the plaintiff further agreed to answer the undertaking given at Question 20 (to produce clinical notes from Dr. Backstein for sleep treatment) by providing a letter to Defendant’s counsel setting out the steps taken as part of best efforts to locate Dr. Backstein. Similarly, with respect to the undertaking at Question 28 (to advise if the information in the investigating officer’s statement was information provided by the plaintiff), counsel agreed to provide a letter to Defendant’s counsel confirming that, given the circumstances of the accident and his injuries, Mr. Rodrigues does not remember.
[6] The remaining outstanding undertaking is related to the refusal. On his examination for discovery, Mr. Rodrigues admitted that his cellular phone was in his vehicle at the time of the accident. When asked, Mr. Rodrigues denied that he was using his phone at the time of the accident. Counsel for the Defendant requested that Mr. Rodrigues produce the call log for his cellular phone for the 30 minutes prior to the accident. Counsel for the plaintiff took this question under advisement (Question 33) but undertook to advise whether the plaintiff is willing to provide the call log or if none exists (Question 26).
[7] At paragraph 9(i) of the Defendant’s Statement of Defence and Crossclaim dated February 19, 2016, the Defendant alleges that the accident was caused solely by the negligence of the plaintiff, whose negligence includes “he was dialing or talking on a cellular phone prior to or at the time of the collision.”
[8] Counsel for the plaintiff advises that Mr. Rodrigues refuses to produce the call log records for his cellular phone. Therefore, the only issue which I must decide on this motion is whether Mr. Rodrigues should be ordered to do so.
II. The Law and Analysis
[9] The parties did not file any written legal submissions.
[10] Rule 31.06 provides that:
(1)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….
[11] Relevance and the scope of discovery were explained and applied comprehensively by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504. In particular, discovery questions must be relevant to the issues as defined by the pleadings.
[12] When I asked counsel for any case law regarding the production of cellular phone records in the context of motor vehicle accidents, I was directed to Comisso (Litigation guardian of) v. York (Regional Municipality) Police Services Board, 2010 ONSC 3620. In Comisso, the defendant alleged that it was possible that the plaintiff was on her cellular phone at the time of the collision and requested on discovery that she produce her cell phone records for the date of the accident and the phone itself. The plaintiff refused. P. Lauwers J. ordered the plaintiff to produce the records and the phone itself given that it was a plausible explanation for the accident and production of the records and the phone would “clear up the mystery” (see para. 4).
[13] Counsel for the plaintiff submits that the call log requested by the Defendant is not relevant given that Mr. Rodrigues denied under oath that he was on his cell phone at the time of the accident. The plaintiff submits that there is no evidence that the plaintiff was on his phone at the time of the collision and that the Defendant’s allegations in this regard are baseless, invasive and irrelevant. Counsel for the plaintiff concedes that there is no evidence other than Mr. Rodrigues’ denial.
[14] In my view, based on the pleadings, the call log records are relevant to a matter at issue in this action, namely, whether Mr. Rodrigues was negligent because he was on his cellular phone at the time of the collision. The Defendant alleges that Mr. Rodrigues was on his phone. Mr. Rodrigues denies that he was. As in Comisso, production of the call log would shed light on this issue and likely resolve it altogether. The Defendant is entitled to this information as part of its discovery
[15] I also reject the submission by counsel for the plaintiff that Comisso is distinguishable given that the driver in that case could not remember whether she used her cellular phone at the time of the accident while Mr. Rodrigues states that he remembers that he did not. This does not alter my conclusion that the call log records are relevant to issues in this litigation.
[16] Further, the Defendant’s request is reasonable and proportional as it is limited only to the call log records and only for 30 minutes prior to the time of the accident. These records should be readily available through the plaintiff’s personal or on-line billing records or through his cellular phone service provider.
[17] Accordingly, the Defendant’s motion is granted. Mr. Rodrigues shall make best efforts to obtain and produce the call log records for the cellular phone which was in his vehicle at the time of the accident for the 30 minutes prior to the time of the accident within 60 days of my order below. To address any privacy issues, subject to further order of the court or consent of the plaintiff, the call log shall only be used for the purposes of further examinations for discovery or discussions between the parties. If the call log records need to be filed with the court, they shall be filed on a sealed basis.
III. Disposition
[18] Order to go as follows:
i.) The plaintiff shall make best efforts to obtain and produce the call log records for the cellular phone which was in his vehicle at the time of the accident for the 30 minutes prior to the time of the accident within 60 days of this order;
ii.) subject to further order of the court or consent of the plaintiff, the call log records shall only be used for the purposes of examinations for discovery and discussions between the parties. If the call log records need to be filed with the court, they shall be filed on a sealed basis.
[19] Counsel exchanged costs outlines at the conclusion of the motion. If the parties are unable to agree on the costs of this motion, they may file costs outlines and written costs submissions not to exceed 2 pages (excluding costs outlines) with me through the Masters Administration Office on or before June 15, 2017.
Released: May 12, 2017
Master M.P. McGraw