Court File and Parties

CITATION: Khan v. Gill, 2017 ONSC 5591

COURT FILE NO.: CV-14-00514549

MOTION HEARD: 20170911

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Arshad Ali Khan, Plaintiff

AND:

Gurupkar Singh Gill, Satbir Singh Gill and Aviva Insurance Company of Canada, Defendants

BEFORE: Master B. McAfee

COUNSEL: F. Chorley, Counsel for the Moving Party, the Defendant, Aviva Insurance Company of Canada

M. Ettedgui, Counsel for the Responding Party, the Plaintiff, Arshad Ali Khan

HEARD: September 11, 2017

REASONS FOR DECISION

[1] This is a motion brought by the defendant Aviva Insurance Company for answers to undertakings and questions refused on the examination for discovery of the plaintiff held on August 5, 2015.

[2] No case law was referred to on the motion.

[3] The below undertaking and refusal numbers are taken from the Form 37C charts. What follows are my rulings.

Undertakings

[4] Nos. 1, 6, 7, 8, 9, 10, 12, 14, 16, 17, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31: No ruling was requested.

[5] Nos. 2, 3, 4, 5, 11, 18: I am not satisfied that best efforts have been made to answer the undertakings. The undertakings remain outstanding. The undertakings shall be answered or further efforts shall be made to answer the undertakings and particulars of best efforts provided.

[6] No. 13: Only the decoded OHIP summary from August 14, 2015 to April 15, 2016, has been provided. The undertaking remains outstanding in part. The plaintiff shall make further efforts to obtain the OHIP summary from December 8, 2009, and shall enclose any previous request letters when writing to OHIP. The undertaking shall be answered or further efforts shall be made to answer the undertaking and particulars of best efforts provided.

[7] No. 15: This undertaking remains outstanding and shall be answered.

[8] No. 19: The plaintiff stayed at multiple motels and only provided receipts from one motel. The undertaking remains outstanding in part. The undertaking shall be answered or further efforts shall be made to answer the undertaking and particulars of best efforts provided.

[9] No. 20: On consent, the plaintiffs shall answer the undertaking using the spelling of the doctor’s name as set out in the transcript.

Refusals

[10] Nos. 2, 3, 4, 5 and 6: On the motion, Aviva agreed to limit refusal no. 2 to the period of 3 years pre-accident.

[11] I am satisfied that the refusals are relevant based on the pleadings and in particular based on the plaintiff’s claim for economic loss pleaded at paragraphs 16 and 17 of the statement of claim.

[12] In making my determination, I am satisfied that the time required to answer the questions would not be unreasonable and that the expense would not be unjustified. I was not referred to evidence from the plaintiff in this regard. In addition, the plaintiff is claiming pecuniary damages in the amount of $700,000.00. The principles of proportionality are not offended in the circumstances.

[13] Refusal no. 2, limited to the period of 3 years pre-accident, and refusal nos. 3, 4, 5 and 6, shall be answered.

Timing

[14] The outstanding undertakings shall be answered, or further efforts shall be made to answer the undertakings and particulars of best efforts provided, and the refusals shall be answered within 30 days of today’s date.

Costs

[15] I am satisfied that Aviva is entitled to costs of the motion. Aviva was successful on the contested issues argued. However, only 5 minutes was booked for the original return date, resulting in an adjournment and costs incurred by the plaintiff as a result. No case law or facta were provided to the court. The motion was not complex. In my view the all-inclusive sum of $1,500.00 is a fair and reasonable amount that the plaintiff could expect to pay for costs in all of the circumstances of this motion. Costs of the motion are payable by the plaintiff to Aviva in the all-inclusive sum of $1,500.00 within 30 days.

Master B. McAfee

Date: September 20, 2017