MOTION HEARD: AUGUST 2, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dorette Vivienne Blake v. Marijana Drandic and Toyota Credit Canada Incorporated
BEFORE: MASTER R.A. MUIR
COUNSEL: S. Lo Iacono for the defendants (moving parties) Z. Goncalves for the plaintiff (responding party)
REASONS FOR DECISION
1This is an undertakings and refusals motion. The parties have resolved the undertakings issues. A few refusals remain outstanding.
2This claim arises from a motor vehicle accident on January 17, 2012. The plaintiff complains of neck and back pain, headaches, and vertigo, among other things. The plaintiff was involved in a prior motor vehicle accident in 2004 and complained of some of the same injuries.
3All of the outstanding refusals relate to the earlier motor vehicle accident and the claim arising from that event.
4In my view, none of these questions need to be answered. The plaintiff has provided all of her medical records for a period of four years prior to the 2012 accident. The evidence shows that the plaintiff’s injuries from the 2004 accident were largely resolved by 2012. Any issues of overlapping injuries will be illuminated by the medical records already produced.
5The litigation from the prior accident settled in 2007, five years before the 2012 accident. This is to be contrasted with the case of Vanderwerf v. Westra, 2015 ONSC 2253 relied upon by the moving parties. In that case, the prior litigation settled less than one year before the subject accident making those records far timelier. See Vanderwerf at paragraph 30.
6In my view, given the plaintiff’s condition at the time of the second accident, the 2004-2008 records requested are of marginal relevance at best.
7Counsel for the defendants points out that the requested records have already been assembled and organized given the prior litigation and little effort would be required to produce those records. However, proportionality goes beyond simple production. Further oral discovery may result. Expert review may be required. In view of the marginal relevance of these records, their production is not in keeping with the principle of proportionality.
8The disputed refusals need not be answered.
9In my view, this motion was necessary as undertakings remained outstanding two years after discovery. However, the plaintiff was successful today and it appears from the record that the refusals account for the bulk of the time expended by the parties. In my view, the plaintiff’s requested costs are reasonable for a motion of this nature and are similar to the moving parties’ costs. Taking into account a reduction for the undertakings portion of the motion, it is my view that it is fair and reasonable for the defendants to pay the plaintiff’s costs of this motion fixed in the amount of $1,500.00 inclusive of HST and disbursements. These costs shall be paid by September 1, 2017.
10Order to go in the form of the draft order signed by me.
Master R.A. Muir
DATE: August 2, 2017