Court File and Parties
CITATION: Karten v. Cineplex Entertainment Limited Partnership, 2017 ONSC 5010
COURT FILE NO.: CV-16-00554221
MOTION HEARD: 20170817
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bruce Karten, Plaintiff
AND:
Cineplex Entertainment Limited Partnership, Defendant
BEFORE: Master B. McAfee
COUNSEL: L. Paz, Counsel for the Moving Party, the Plaintiff
K. Kwinter, Counsel for the Responding Party, the Defendant
HEARD: August 17, 2017
REASONS FOR DECISION
[1] Moving counsel confirmed that the relief remaining at issue on this motion is nine questions refused on the examination for discovery of a representative of the defendant and costs.
[2] The principles to be applied on a motion for answers to refusals are summarized by Justice Perell in Ontario v. Rothmans Inc., 2011 ONSC 2504, [2011] O.J. No. 1896 (Ont.S.C.J.) at paragraphs 129, 154-164 and Justice Faieta in Eisen (In Trust) v. Altus Group Ltd., 2016 ONSC 1301, [2016] O.J. No. 969 (Ont.S.C.J.) at paragraphs 13 -19.
[3] What follows are my rulings.
[4] Refusal Nos. 1 and 2: The period of time requested in refusal no. 1, being 20 years, is too broad. Refusal no. 2 is not limited to any period of time and is also too broad. The defendant owned the property in question since June 2013. The accident occurred on May 23, 2015. In my view, a time period commencing from the date of ownership, being June 2013, is a reasonable period of time in the circumstances. I am satisfied that the questions, limited to the period of time commencing June 2013, are relevant based on the pleadings and in particular based on paragraphs 5, 8 and 9 of the amended statement of claim and paragraphs 4, 8 and 9 of the statement of defence. Refusal nos. 1 and 2 shall be answered for the period of time commencing June 2013.
[5] Refusal Nos. 3, 4 and 5: The 20 year time period requested in questions 3 and 4 is too broad. As noted above, the defendant owned the property since June of 2013, and the accident occurred on May 23, 2015. In my view, a reasonable period of time is from the date of ownership, being June 2013. I am satisfied that the questions, limited to the period of time commencing June 2013, are relevant based on the pleadings and in particular based on paragraphs 5, 8 and 9 of the amended statement of claim and paragraphs 4, 8 and 9 of the statement of defence. Refusal nos. 3 and 4 shall be answered for the period of time commencing June 2013. Refusal no. 5, which was limited to the span of the defendant’s ownership of the theatre, shall be answered.
[6] Refusal Nos. 6, 7 and 8: In my view the questions are too broad. The questions seek information concerning all Cineplex properties. There are 160 locations.
The decision of Torami v. Horton, 1988 CanLII 4790 (ON SC), [1988] O.J. No. 2056 (Ont.Div.Ct.) relied on by the plaintiff can be distinguished. In Torami, certain questions concerning the maintenance status of a fleet of tractor-trailers were ordered answered. It does not appear that there were different locations of the fleet (see the reference to question 254 at the 17th paragraph of the decision where it is stated: “all vehicles present in their yard”).
The decision of Roycroft v. Kyte, [1999] O.J. No. 296 (Ont.Gen.Div.) relied on by the plaintiff can be distinguished. Evidence was admitted at trial of 28 previous accidents in the span of four years on a particular section of road where the accident occurred (see paragraphs 52-53). However, in the refusals before me the plaintiff does not seek answers limited to the location in question but seeks answers concerning all 160 locations.
Refusal nos. 6, 7 and 8 need not be answered.
[7] Refusal No. 9: In my view this is not a proper question. It has not been established that there is a “hazard.” Refusal no. 9 need not be answered.
Costs
[8] I award no costs of the motion to any party. The period of time requested in refusal nos. 1 to 4 was not reasonable. The period of time offered by the defendant for refusal nos. 1 to 4 was too limited. Refusal no. 5 was ordered to be answered as asked. Refusal nos. 6 to 9 were not ordered to be answered. Certain refusals were agreed to be answered or were answered after the motion was brought and certain refusals were not pursued. The issue of undertakings and the issue of the inspection were resolved in advance of the hearing of the motion. The parties shall bear their own costs of the motion.
Master B. McAfee
Date: August 23, 2017