Court File and Parties

Ontario – Superior Court of Justice

Ismail Turkoglu v. TD General Insurance Company

Citation: 2017 ONSC 4285 Court File No.: CV-13-494538 Motion Heard: July 12, 2017

Counsel: J. Carrington for the plaintiff O. Tavakoli for the defendant

Endorsement

Master R.A. Muir -

[1] The plaintiff brings this motion pursuant to Rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The plaintiff seeks an order granting him leave to conduct an examination for discovery of the defendant. Leave is required because the plaintiff set this action down for trial on October 24, 2016 by delivering a trial record.

[2] There appears to exist two lines of authority with respect to the test to be applied on a motion of this nature. One approach suggests that the plaintiff must show a substantial or unexpected change in circumstances. The other test takes a broader view. That approach recognizes that the law has evolved in recent years and holds that leave may be granted if it is in the interest of justice to do so. This law is summarized in my decision in BNL Entertainment Inc. v. Ricketts, 2015 ONSC 2689 (Master) and in the recent decision of Justice Cornell in Denis v. Lalonde, 2016 ONSC 5960.

[3] In BNL I adopted the broader approach. Justice Cornell preferred the substantial or unexpected change in circumstances test. Justice Cornell was of the view that BNL was wrongly decided.

[4] It should be noted, however, that the existence of the broader approach appears to have been acknowledged in subsequent decisions of other Superior Court judges. See the decision of Justice Gilmore in Alofs v. Blake, Cassels and Graydon LLP, 2017 ONSC 950, at paragraph 22 and the decision of Justice Gray in Secure Solutions Inc. v. Smiths Detection Toronto Ltd., 2017 ONSC 2401, at paragraph 42. A further decision of note is Dhawan v. Arnold, 2016 ONSC 6304, a decision of Justice Maranger, as referenced in Alofs. At paragraph 10 of that decision Justice Maranger states that he prefers the approach set out in BNL.

[5] In view of these conflicting decisions, I am not bound to follow the decision of Justice Cornell in Denis or Justice Gray in Secure Solutions Inc. For the reasons I set out in BNL, I prefer the broader approach to the test for granting leave under Rule 48.04(1).

[6] I have therefore applied this test in determining whether leave should be granted in the circumstances of this action. Having done so, I have concluded that the plaintiff should be granted leave as requested.

[7] This is a claim for the payment of statutory accident benefits arising from a motor vehicle accident on October 21, 2010. This action is proceeding in tandem with the plaintiff’s tort action, which was also set down for trial on October 24, 2016. Discovery in the tort action is complete. The plaintiff has been examined for discovery in this action.

[8] In my view, it is in the interest of justice that the plaintiff be given the opportunity to conduct an examination for discovery of the defendant for the following reasons. In September 2016, the parties agreed that the examination of the defendant would take place in March 2017. This was before the action was set down. It was only after the plaintiff requested the examination be rescheduled that the defendant objected to the examination on the basis of Rule 48.04.

[9] No pre-trial or trial dates have been set. The certification form has not been filed with the trial office. This action is not scheduled to be struck from the trial list until October 27, 2017. There is ample time to conduct this simple examination well before the deadline to file the certification form.

[10] There has been some delay by the plaintiff in scheduling this examination. There is no explanation as to why the defendant was not examined when the examinations in the tort action took place. I am also troubled by the plaintiff’s lack of evidence explaining why this action was set down in the face of the pending discovery and why his certification form stated that discoveries were complete. However, there is no suggestion that the defendant will be prejudiced or otherwise inconvenienced by the examination. It was certainly more than willing to be examined in March 2017. It only changed its position after the plaintiff set the action down and then sought to reschedule that examination.

[11] Discovery is an important step in any proceeding. There is almost always some utility in examining an opposing party’s witness. It allows a party to gain an understanding of the other party’s case. Helpful admissions may be obtained. It may narrow the issues and facts in dispute. It promotes the early resolution of litigation and allows for efficiencies at trial. The Rules should be interpreted to promote these objectives and not in a manner that allows a party to gain a strategic advantage due to an accidental slip or omission when there will be no prejudice or inconvenience to that party. I agree with the observations of Justice Laskin in Finlay v. Van Paassen, 2010 ONCA 204, at paragraph 14, (as cited in Koohestani v. Mahmood, 2015 ONCA 56, at paragraph 39, a case relied upon by the defendant):

Rule 2.01 reflects the general principle found in rule 1.04(1), which guides the interpretation of all the Rules: "These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits." Rule 1.04(1) and rule 2.01 are intended to do away with overly "technical" arguments about the effect of the Rules and orders made under them. Instead, these provisions aim to ensure that the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute.

[12] I am therefore granting the relief requested by the plaintiff. The examination for discovery of the defendant shall take place by August 31, 2017 and shall be limited to three hours in total.

[13] In my view, the plaintiff has been afforded an indulgence. He set this action down in the face of a pending discovery. An inaccurate certification form was circulated. No evidence has been provided to explain these missteps. For these reasons, it is fair and reasonable that there be no order for the costs of this action.

Master R.A. Muir DATE: July 12, 2017