Court File and Parties

COURT FILE NO.: CV-09-374527 MOTION HEARD: 2017-05-24 REASONS RELEASED: 2017-06-09 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

ABDULLAH ABDULWASI Plaintiff

• and-

CHRISTIAN PIETRANTONIO and ITALIA SALAMI COMPANY LIMITED Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: Nicole Culp -for the Defendants and Intact Insurance Company e-mail: nicole.culp@intact.net Peter Tesi -for the Plaintiff e-mail: peter.tesi@dolilaw.com

REASONS RELEASED: June 9, 2017

Reasons for Endorsement

I. Background

[1] This is a motion by the defendants Christian Pietrantonio and Italia Salami Company Limited (collectively, the “Defendants”) pursuant to Rules 48.14(1) and 31.03(1) of the Rules of Civil Procedure for leave to conduct a further examination for discovery of the plaintiff, Abdullah Abdulwasi. Intact Insurance Company is defending this action and its counsel attended on this motion.

[2] The Defendants also seek to compel the plaintiff to answer undertakings from the plaintiff’s examination for discovery and for the production of pre-accident medical records. Counsel for the Defendants advised that all undertakings have been answered and that the plaintiffs have been responsive and accommodating with respect to producing medical records and other relevant documents on an ongoing basis. Therefore, no relief in this regard is necessary.

[3] This action arises out of a motor vehicle accident which occurred on August 8, 2008 in Toronto. The plaintiff’s vehicle was struck by a vehicle driven by the defendant, Mr. Pietrantonio and owned by his co-defendant Italia Salami Company Limited.

[4] The plaintiff commenced this action by Statement of Claim dated March 9, 2009. The plaintiff alleges that as a result of the accident he has sustained and continues to suffer from permanent physical injuries and psychological trauma and seeks general damages of $1,000,000.

[5] The Defendants delivered their Statement of Defence and Jury Notice on or about April 18, 2011. The examination for discovery of the Plaintiff was conducted on September 25, 2012. Mediation was held on August 19, 2013.

[6] This action was struck from the trial list on December 1, 2014 and was restored to the trial list pursuant to the Order of Master Hawkins dated October 5, 2015. On October 8, 2015, the plaintiff served his Trial Record. Pursuant to the Endorsement of Justice Wilson dated February 8, 2017, a pre-trial in this action and a companion action is scheduled for October 25, 2017 and a four-week trial in both actions is scheduled to commence on January 29, 2018.

[7] On July 13, 2016, plaintiff’s counsel advised counsel for the Defendants that the plaintiff had undergone surgery for an anterior cervical decompression and fusion on May 27, 2016 and provided copies of clinical notes and records regarding the plaintiff’s surgery and related care. As a result of this surgery, the Defendants requested that the plaintiff attend on a further examination for discovery. The plaintiff refuses to do so.

[8] The Defendants state that Mr. Abdulwasi’s surgery demonstrates that he has experienced a substantial deterioration in his health since his examination for discovery and after this action was set out down for trial. Therefore, the Defendants submit that they require Mr. Abdulwasi to attend a further discovery so that they can assess his injuries and damage claim and know the case that they must meet at trial.

[9] Counsel for the plaintiff submits that Mr. Abdulwasi’s surgery does not represent a deterioration or change in his condition but rather is consistent with his circumstances throughout these proceedings including before the action was set down for trial. The plaintiff, in his materials and during submissions, has, in addition to agreeing to a defence medical examination, offered to answer questions in writing. The Defendants refuse to accept this proposal and insist on proceeding with their motion to compel his attendance in person.

II. The Law and Analysis

[10] Rule 48.04(1) provides that any party who has set an action down for trial or who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. Rule 31.03(1) provides that a party may examine a party adverse in interest more than once only with leave of the court.

[11] The proportionality factors in Rule 29.2.03 are also relevant to this request:

(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

[12] Proportionality was explained and applied by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917.

[13] I am also guided by Rule 1.04(1) which provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits and Rule 1.04(1.1) which requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[14] It is not disputed that the Defendants require leave under Rules 48.04(1) and 31.03(1) to compel Mr. Abdulwasi to attend a further examination for discovery. It is important to remember that the plaintiff has already agreed to answer written interrogatories and to attend a defence medical examination and what the Defendants are seeking is leave to compel Mr. Abdulwasi to attend a further in-person examination.

[15] As set out in BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, the purpose of Rule 48.04(1) is to ensure that matters are not set down until they are ready for trial. At paragraph 12 of BNL, Master Muir summarized the two approaches in the case law regarding the test to be applied under Rule 48.04(1):

i.) the more established test which requires the moving party to demonstrate that there has been a substantial or unexpected change in circumstances (see Jetport Inc. v. Global Aerospace Underwriting Managers, 2013 ONSC 2740; Lugen Corp. v. Starbucks Coffee Canada Inc., 2014 ONSC 7141);

ii.) the broader more liberal and flexible approach, adopted by Master Muir in BNL, which does not require the finding of a substantial or unexpected change in circumstances but rather that the court may grant leave and make the order that is just in the circumstances where the interlocutory step is necessary in the interests of justice considering all of the circumstances and Rule 1.04(1) (see AGC Mechanical Structural Security Inc. v. Rizzo, 2013 ONSC 1316).

[16] The Defendants urge me to adopt the broader approach endorsed by Master Muir in BNL but submit that they have satisfied the tests under both approaches. In my view, under both approaches, the Defendants’ motion cannot succeed.

[17] In Lugen, Master Glustein (as he then was), denied the plaintiff’s motion for leave to examine the defendant for the first time after the plaintiff had set the action down. In doing so, Master Glustein rejected the broader approach and adopted the “substantial or unexpected change in circumstances” test from Jetport.

[18] The case law with respect to compelling an additional or continued examination for discovery under Rule 31.03(1) provides for a similar approach. Specifically, the moving party must demonstrate that there is “evidence that the condition of the plaintiff has deteriorated substantially” (see Suchan v. Casella and Guaze v. Toronto Hydro Corp., 2014 ONSC 5684).

[19] In Guaze, the defendants sought to examine the plaintiff a second time on the basis that they received numerous clinical notes, records and expert reports well after the plaintiff’s examination for discovery demonstrating that the plaintiff’s condition had worsened thus creating the need for follow-up questions on discovery as to ‘why’ the plaintiff’s condition had worsened. Master Brott, adopting the approach from Suchan, found that the plaintiff’s conditions and injuries had not substantially deteriorated since the examination for discovery but rather, as in Suchan, the plaintiff’s prognosis resulting from that condition had deteriorated and was more definitive.

[20] Master Brott then concluded as follows:

“The appropriate next step for Industrial may be a defense medical examination to have its expert answer “why” the condition has allegedly worsened. The Plaintiff himself is not in a position to answer the ‘why’” (see Guaze, para. 6).

[21] In Cushing v. Beaulieu, 2015 ONSC 1871, Louise L. Gauthier J. held that on a motion under Rule 31.03(1) for re-attendance on examination for discovery to answer follow-up questions, the moving party must demonstrate that some useful purpose would be served by the examination, including enabling the party to know the case to be met, obtaining admissions, defining and narrowing the issues and promoting settlement.

[22] Counsel for the Defendants submits that, based on the medical records in evidence, Mr. Abdulwasi has suffered a substantial deterioration in his condition which occurred after this action was set down for trial and which they could not have contemplated. The Defendants state that prior to the plaintiff’s examination for discovery, he was diagnosed with mild degenerative changes and herniation at C5-C6 and cervical spine dysfunction. The Defendants submit that although the plaintiff did not seek significant treatment for his accident related injuries in 2010-2011 and 2014-2015, the records demonstrate a gradual worsening of his neck injury after his examination for discovery.

[23] Specifically, in a report dated June 21, 2013, Dr. Joseph Wong concluded that the plaintiff had a moderate myofascial injury of the cervical spine paraspinal muscles and that he had likely suffered a mild C6 injury from hyperextending his back. Included with the documents which the Defendants received on July 13, 2016 was a report from Dr. G. Perrin dated March 3, 2016 who advised that an MRI taken on December 20, 2015 showed a reversal of the plaintiff’s normal cervical lordosis and disc herniation at C5-C6. Dr. Perrin diagnosed the plaintiff with cervical spondylotic myelopathy with severe segmental stenosis at C5-C6.

[24] Dr. Perrin advised that the plaintiff should consider an anterior cervical discectomy and fusion at C5-C6, the surgical procedure which Dr. Perrin ultimately performed on May 27, 2016. The Defendants submit that the change from a mild C6 injury as set out in Dr. Wong’s report to severe segmental stenosis requiring surgery demonstrates an unexpected and substantial change in the plaintiff’s circumstances and a significant deterioration in his condition.

[25] The plaintiff submits that the same medical records and clinical notes which the Defendants cite support the conclusion that Mr. Abdulwasi has consistently suffered from serious neck pain since the accident in 2008 which he described at his examination for discovery all of which the Defendants are aware of given that they have all of the relevant medical records and clinical notes. In particular, the plaintiff states that the injuries described prior to and in Dr. Wong’s report are the same serious injuries suffered by the plaintiff when he had the operation.

[26] I note that in asserting these divergent positions, counsel rely upon the medical opinions and diagnoses of 9 different doctors and approximately 15 different sets of medical records and clinical notes.

[27] Having reviewed the complex compilation of medical records, opinions and diagnoses and considered the submissions of counsel, I am unable to conclude that the Defendants have met the tests of “substantial or unexpected change in circumstances” under Rule 48.04(1) or “evidence that the condition of the plaintiff has deteriorated substantially” under Rule 31.03(1). Mr. Abdulwasi’s surgery was serious and may represent a worsening or deterioration since this action was set down for trial. However, I cannot conclude on the record before me that any such change in the plaintiff’s circumstances and condition is substantial, unexpected and/or that it has deteriorated substantially, or whether it was simply a natural extension or worsening of the prognosis related to the neck pain which he has complained of since the accident in 2008.

[28] Further, at paragraph 27 of the affidavit Connor O’Neil sworn April 24, 2017 filed by the Defendants, Mr. O’Neil states that the plaintiff ought to attend at a further examination because “the plaintiff alleges that this deterioration is related to the motor vehicle accident which is the subject of this litigation”. In other words, as in Guaze, one of the primary reasons the Defendants wish to examine the plaintiff is to determine ‘why’ his condition has allegedly deteriorated.

[29] In this regard, counsel for the Defendants states that one of the reasons the Defendants insist on an in-person attendance as opposed to agreeing to written interrogatories is because their anticipated line of questioning will be complex given their need to explore the cause and extent of the alleged deterioration of the plaintiff’s medical condition. The Defendants submit that an in-person examination is more conducive to the back and forth dialogue that this line of questioning will require. When pressed further on this point, Defendants’ counsel submitted that, the examination would also allow counsel to assess and evaluate the plaintiff’s “mannerisms” and “demeanour” which may provide insight into the plaintiff’s condition.

[30] However, in my view, similar to Guaze, Mr. Abdulwasi is not in a position to answer questions which go to the ‘why’ of any alleged deterioration in his condition. These are issues which could be better assessed on an examination by a defence medical expert which counsel for the plaintiff has already agreed to. Similar to Cushing, I am not satisfied that any useful purpose would be served by Mr. Abdulwasi’s re-attendance in person. Any useful purpose could be better and more efficiently served by other means readily available to the Defendants, including written questions and/or a medical examination.

[31] Applying the broader approach adopted in BNL, the Defendants submit that it is in the interests of justice to grant leave to further examine the plaintiff. In particular, the Defendants submit that a further examination is necessary and just in order to enable the Defendants to assess the plaintiff’s damages and know the case they must meet at trial which will provide for a more timely and less costly trial, reduce the possibility of surprise at trial and may contribute to the possibility of settlement all consistent with Rule 1.04(1). The Defendants further submit that requiring Mr. Abdulwasi to attend on a further examination will not cause him any prejudice while denial of leave will seriously prejudice their rights.

[32] In BNL, Master Muir concluded that it was just to grant leave for four main reasons: i.) the plaintiffs did not instruct their counsel to set the action down for trial and were unaware of the potential consequences of doing so; ii.) the defendant who the plaintiffs sought to examine was in default for not delivering an affidavit of documents; iii.) no pre-trial or trial dates had been set and the action was not ready for trial; iv.) there was no hardship or prejudice to the defendant given that, among other things, he was not being subjected to multiple examinations and appeared in no hurry to get to trial. These circumstances do not exist in the present case.

[33] To the contrary, in the present case, the plaintiff set this matter down over 18 months ago; pre-trial and trial dates have been scheduled; the plaintiff is not in default and has been responsive and accommodating in providing ongoing disclosure and productions and has agreed to answer questions in writing and a defence medical examination; and the plaintiff has already been examined once.

[34] Further, in BNL, Master Muir placed great weight on the significant importance of pre-trial discovery for the purposes of efficiency and fairness and the view that discovery rights are at least partly substantive and not merely procedural in nature (BNL, para.15). This was a particularly important consideration in BNL given that the plaintiffs did not instruct counsel to set the matter down which resulted in the loss of their discovery rights compounded by the fact that they had not received any documentary production. Again, that is not the case here.

[35] The Defendants here have already conducted an examination of the plaintiff, received and continue to receive full and ongoing documentary production, obtained various medical reports and now have the agreement of the plaintiff to answer questions in writing and attend at a defence medical examination. In my view, this does not support the Defendants’ submission that they would be prejudiced by not being able to examine Mr. Abdulwasi in person, particularly when, as I conclude above, it does not appear as if Mr. Abdulwasi will be able to provide the information and answers which they seek. While Mr. Abdulwasi is physically able to attend an examination, in my view, prejudice would result from him having to attend a second examination and incur the related time, effort and expense in circumstances where it is possible that he may not even be able to provide the very information which the Defendants seek and where it is otherwise readily available.

[36] Counsel for the Defendants submits that it would be more efficient and inexpensive to conduct a 2-hour examination for discovery in person rather than deliver written questions and receive answers in writing. I am not convinced that this is the case particularly when one considers the costs of attendance, court reporter and facilities, transcripts and preparation. Moreover, I am also not satisfied that another examination of the plaintiff is reasonable, practical, proportional or would be probative of what the Defendants are seeking in preparation for trial particularly when the same, or better information and evidence is available from other readily available sources which would reap the same potential benefits with respect to settlement and trial efficiencies.

[37] Having considered all the circumstances and factors above, including Rule 1.04(1), in applying the broader, more liberal and flexible approach, I conclude that the most just result in the circumstances is to deny leave for the Defendants to conduct a further examination of the plaintiff.

[38] In my view, what is just in the circumstances and consistent with the principles of proportionality and Rule 1.04(1) is that the Defendants be provided with an opportunity to ask any further questions of the plaintiff in writing. I note that in granting leave to conduct examinations for discovery in Dhawan v. Arnold, 2016 ONSC 6304, a case relied on by the Defendants, Justice R. Maranger concluded that the discovery ordered could take place by written interrogatories (see para. 11).

[39] The Defendants shall have the opportunity to deliver any questions in writing to the plaintiff within 15 days and the plaintiff shall deliver written responses within 15 days of receiving the questions. Counsel can continue to work together in advance of the pre-trial to answer any further questions or requests or exchange further documents arising from these questions and schedule any medical examinations.

III. Disposition

[40] Order to go as follows:

(i) the Defendants’ motion for leave to compel the plaintiff to attend in person on a further examination for discovery is denied;

(ii) the Defendants shall deliver any questions in writing to the plaintiff within 15 days;

(iii) the plaintiff shall deliver written responses to the questions in writing within 15 days of receipt.

[41] If the parties are unable to agree on the costs of this motion, counsel may file written costs submissions of no more than 2 pages (excluding costs outlines, which counsel have exchanged) with me through the Masters Administration Office on or before July 15, 2017.

Released: June 9, 2017

Master M.P. McGraw