CITATION: Maxrelco Immeubles Inc. v Jim Pattison Industries Ltd. 2017 ONSC 5836
COURT FILE NO.: 10-49174
DATE: 2017/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Maxrelco Immeubles Inc.
Plaintiff
– and –
Jim Pattison Industries Ltd. c.o.b. as Pattison Sign Group and Lumipro Inc. c.o.b. as Lumipro Signs and Lighting Services
Defendants
Stéphanie Drisdelle for the Plaintiff
Alex Robineau for the Defendant, Lumipro Inc.
HEARD: September 26, 2017
REASONS FOR DECISION
O’Bonsawin J.
Background
[1] This action arises from a fire that occurred in Casselman, Ontario, on August 17, 2008. It is alleged that the area of origin of the fire was inside the roof structure near the front exterior wall of the premises behind the letter “I” of the Dunkin Donuts neon sign.
[2] Maxrelco Immeubles Inc. (“Maxrelco”) owns the premises where the fire occurred. Lumipro Inc. (“Lumipro”) is the company that provides installation, servicing, and maintenance for signage and lighting.
[3] Maxrelco alleges that it and Lumipro entered into an oral or written contract with respect to the maintenance of the neon signs on the premises and Lumipro was called upon to perform maintenance of the Dunkin Donuts sign prior to the fire.
[4] For its part, Lumipro denies the allegations. Lumipro argues it was not retained to maintain the signs at the premises, but rather was only retained to repair broken signs when called upon to do so by Maxrelco.
[5] Examinations for Discovery of Maxrelco’s representative and President, Mr. Goupil, were held on April 20, 2012. The transcripts demonstrate that Mr. Goupil was not able to identify the quantum of damages Maxrelco alleges to have suffered as a result of the fire.
[6] On March 1, 2017, a Trial Management Conference was held between the parties. Beaudoin J. required that Lumipro provide its questions arising out of answers to undertakings by March 15, 2017, and that Maxrelco provide answers by April 15, 2017. The questions were sent by Lumipro, however, Maxrelco advised that it would not be responding to the questions.
[7] At the beginning of the motion, Lumipro’s counsel provided me with a Supplementary Affidavit which contained as an Exhibit a letter dated September 22, 2017, from Ms. Drisdelle, Maxrelco’s counsel. Ms. Drisdelle provided Mr. Robineau, Lumipro’s counsel, with answers to undertakings for nine of the eleven outstanding undertakings. Consequently, only two answers to undertakings remain outstanding: (1) what documents Maxrelco has in its possession that establish that the building repairs were undertaken and completed; and (2) what documents Maxrelco has in its possession that establish the new equipment was purchased.
[8] The Pre-trial Conference in this matter has taken place. The trial has been bifurcated and the liability portion of the trial will begin in December 2017.
Positions of the Parties
[9] Lumipro brings this motion and seeks the following:
a) an Order compelling Maxrelco to provide answers to questions arising from the answers to undertakings given at the examination for discovery of its representative;
b) an Order compelling Maxrelco to produce a copy of its insurance policy that was in place on the date of loss, August 17, 2008;
c) an Order compelling Maxrelco to produce a copy of the instruction letters sent to its proposed expert, Hugo Messier of Technorm Inc., in relation to his reports dated June 2, 2010, and March 30, 2017; and
d) costs of this motion.
[10] Lumipro argues:
• on January 27, 2017, it was not able to reconcile the amounts paid by Sovereign Insurance, as identified in the Chenier reports, with the documents produced by Maxrelco;
• since this is a subrogated claim, the amounts paid out by the insurer and the justification for those amounts are critical in establishing the damages in this claim;
• the two outstanding questions are proper since they are follow-up or supplemental questions from answers to the undertakings;
• if Mr. Goupil had been able to answer basic questions concerning the quantum of damages, not only would Lumipro have received the answer under oath, but Lumipro would have been entitled to ask appropriate follow-up questions to Maxrelco in order to have the numbers explained to them;
• the insurance policy is relevant because this is a totally subrogated claim;
• the damages sought are restricted to the amount paid under the insurance policy; and
• a party who intends to call an expert witness at trial must provide any instruction letters sent to that proposed expert.
[11] For its part, Maxrelco argues:
• as a preliminary matter, Lumipro is barred from bringing its motion without seeking leave under Rule 48.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”);
• it provided all of the required answers to undertakings;
• the follow-up questions are not reasonable;
• leave is required for an Order for the insurance policy;
• Maxrelco is not required to produce the insurance policy; and
• the retainer letters are privileged communications.
Issues
[12] The issues in this matter are:
(1) Does Lumipro require leave to proceed with its motion to compel answers to follow-up questions on answers to undertakings?
(2) Is Maxrelco required to answer the questions arising from the answers to undertakings?
(3) Is Maxrelco required to produce the insurance policy?
(4) Is Maxrelco required to produce the instruction letters sent to its expert witness?
Analysis
(1) Does Lumipro require leave to proceed with its motion to compel answers to follow-up questions on answers to undertakings?
[13] It is necessary to begin by reviewing the Rules. Rule 48.04(1) deals with the consequences of setting a matter down for trial on motions and Rule 48.06(1) relates to when a defended action is placed on the trial list by the registrar. Rules 48.04(1) and 48.06(1) state:
48.04(1) Subject to subrule (3), any party who has set an action down for trial and any party 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.
48.06(1) A defended action shall be placed on the appropriate trial list by the registrar sixty days after the action is set down for trial or, if the consent in writing of every party other than the party who set the action down is filed earlier, on the date of filing.
[14] Kechnie v. MacAllister, 2016 ONSC 912, assists in interpreting Rules 48.04 and 48.06. Master MacLeod (as he was then) determined that the requirement for leave in Rule 48.04 only captures the party that sets down the matter for trial or a party who consents to it being listed for trial. “If the rule is read in context, it is clear that the reference to consenting to the action being placed on the list refers to subrule 48.06(1). So the requirement for leave does not generally apply to the defendants…Merely agreeing on dates is not a consent under Rule 48.04” (para. 24).
[15] In Fromm v. Rajani, 82 C.P.C. (6th) 249, 2009 CanLII 46176 (Ont. S.C.), Perell J. determined that Rule 48.04(1) did not apply because the Defendants did not set the matter down for trial. The Plaintiff argued that the mere fact that Defence counsel has completed the Certification Form as part of the Pre-trial Conference process, led to the Plaintiff consenting to the action being place on a trial list. Perell J. determined that this was not a valid argument (para. 7). In Ananthamoorthy (Litigation guardian of) v. Ellison, 2013 ONSC 340, Stinson J. was in agreement with Perell J.’s finding in Fromm (para. 12). In addition, in Arunasalam v. State Farm Mutual Automobile Insurance Co., 2015 ONSC 5235, Master Muir also adopted the reasoning in Fromm and in Ananthamoorthy (paras. 14-20).
[16] Maxrelco set this matter down for trial. Maxrelco alleges that Lumipro consented to the action being placed on the trial list and consequently, Lumipro requires leave of the court to initiate a motion. I disagree and adopt the line of reasoning in the three cases noted above. By simply agreeing to dates for trial, Lumipro did not consent as per Rule 48.04.
[17] The preliminary objection is therefore dismissed.
(2) Is Maxrelco required to answer the questions arising from the answers to undertakings?
[18] In Senechal v. Muskoka (District Municipality), 138 A.C.W.S. (3d) 639, 2005 CanLII 11575 (Ont. S.C.), Master MacLeod (as he was then), sets out the principles for the examination for discovery. He states:
The question of examining “more than once” is in practice a question of whether the examination was actually completed. Improper refusals are an interruption of the discovery while undertakings are an acknowledgment that the question is a proper one and a promise to obtain and provide the answer. Generally speaking, had the discovery not been interrupted by the refusal or the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer that genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question has been answered (para. 5).
[19] Master MacLeod continues to comment that a right to follow-up discovery is not an absolute right. However, the requirement to re-attend to complete the discovery by giving answers and answering appropriate follow-up questions may be permitted if it appears necessary to fulfill the purposes of discovery (para. 7).
[20] In Marchese v. Fiture, 2010 ONSC 1111, there was a disagreement about the questions refused on discovery. In this matter, Master Sproat adopted the factors in Senechal. In essence, if the questions had been answered at the examinations, the Plaintiff would have been able to ask follow-up questions. Master Sproat ordered the re-examination of the Defendant.
[21] I will reiterate the two outstanding follow-up questions in this matter: (1) what documents Maxrelco has in its possession that establish that the building repairs were undertaken and completed; and (2) what documents Maxrelco has in its possession that establish the new equipment was purchased.
[22] Counsel for Maxrelco referred me to page 81 of the transcript of the examination for discovery of Mr. Goupil. I must note that there was simultaneous translation and I will only note the English version below.
Q165. How much were you paid for the building, for the – first of all, let me back up. The building was repaired, is that correct?
A. Yes.
Q166. And who did the repairs?
A. A company affiliated to one of my own companies.
A. Gexcelco.
Q171. So, for the repairs, how much did you settle for?
A. I don’t know.
Q173. So, I take it that you settled for an amount of money and you and your company do the repairs, fair?
A. My company made the repairs with other subcontractors.
Q174. How much were you paid for the equipment?
A. I don’t know.
Q176. And you did settle for an amount and then you went out and bought new equipment?
A. Yes. I didn’t buy all the new equipment, I only bought the new equipment that I needed to buy.
[23] Maxrelco argues that this is demonstrative of the fact that Lumipro already knew that the repairs had been done and that the follow-up questions could have been asked at that time. Based on the line of questioning and answers provided regarding the repairs, I agree with Maxrelco that the follow-up question could have been asked at the examination for discovery. However, for the line of questioning and answers provided regarding the new equipment, further questioning could have been asked if Mr. Goupil would have been able to provide acceptable answers. I have determined that his answers with regards to the second question were inadequate.
[24] I have kept in mind the comments in both Senechal and Marchese. The right to follow-up discovery is not absolute and it is important to review the questions and answers provided in order to determine if a further examination for discovery is permissible. Based on the facts of this case, I have determined that Maxrelco does not have to produce the documents that it has in its possession that establish that the building repairs were undertaken and completed (#1D at Tab 2G of the Defendant’s Motion Record). However, Maxrelco must produce the documents in its possession that establishes that new equipment was purchased (#2C at Tab 2G).
(3) Is Maxrelco required to produce the insurance policy?
[25] It is necessary to review Rule 30.02(3) of the Rules. This Rule establishes when an insurance policy must be produced for inspection: (1) to satisfy a judgment in an action; and (2) to reimburse money paid regarding all or part of a judgment. Rule 30.02(3) states:
(3) A party shall disclose and, if requested, produce for inspection any insurance policy under which an insurer may be liable,
(a) to satisfy all or part of a judgment in the action; or
(b) to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment,
but no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.
[26] In this case, Lumipro is seeking a copy of the insurance policy in order to get an understanding of how the insurance payments were made to Maxrelco regarding the fire loss. This does not relate to the two items listed in Rule 30.02(3) of the Rules.
[27] Maxrelco refers me to Pye Bros Fuels Ltd. v. Imperial Oil Ltd., 2012 ONCA 153, 20 C.P.C. (7th) 1. The parties were Co-defendants in an action for damages related to an oil spill. Pye Bros brought a motion for production of an insurance policy in the possession of Imperial Oil. The motion judge concluded that the policy did not meet the criteria for production under Rule 30.02(3) of the Rules and that the Pye Bros were seeking the policy for a collateral purpose. The Court of Appeal for Ontario upheld the decision of the motion judge.
[28] It must be noted that the Pye Bros decision is distinguishable from the matter before me. The Pye Bros were not asserting that the insurance policy was a relevant document. In this matter, Lumipro is asserting that the insurance policy is a relevant document. Lumipro argues that since this matter is a totally subrogated claim, the damages are restricted to the amount paid under the insurance policy. While proof of loss for the claim have been provided by Maxrelco, I agree with Lumipro that the insurance policy is relevant in order to get a good understanding of the losses covered and how much could be claimed.
[29] In addition, the Court of Appeal interpreted Rule 30.02(3) as follows:
Rule 30.02(3) is not intended to provide a means to obtain discovery of documents in advance of commencing a separate action relating to coverage or contractual obligations. The purpose of the Rule is to provide a specific and limited exception to the general rule that only relevant documents need be produced. It is to assist the making of informed and sensible decisions by parties involved in litigation in circumstances where recourse may be had to any available insurance money
[30] In this matter and in line with the above-noted reasoning by the Court of Appeal, the insurance policy is a relevant document and must be produced by Maxrelco to Lumipro.
(4) Is Maxrelco required to produce the instruction letters sent to its expert witness?
[31] Rule 4.1.01(1) of the Rules addresses the duty of an expert witness. In addition, Rule 53.03(2.1) of the Rules provides that an expert’s report must contain certain information as listed below:
The expert’s name, address and area of expertise.
The expert’s qualifications and employment and educational experiences in his or her area of expertise.
The instructions provided to the expert in relation to the proceeding [emphasis added].
The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
- An acknowledgement of expert’s duty (Form 53) signed by the expert.
[32] Counsel for Maxrelco referred me to the Expertise Report dated June 2, 2011, prepared by Hugo Messier (Tab 1I of Maxrelco’s Motion Record) and the Addendum Report dated March 30, 2017 (Tab 1J of Maxrelco’s Motion Record). More specifically, the Introductions in each report states the mandate provided by the claim’s adjuster (Tab 1I) and Ms. Drisdelle (Tab 1J). Maxrelco argues that the Introduction in both reports meet the requirements of Rule 53.03(2.1)(3). I agree.
[33] Lumipro refers me to Conceicao Farms Inc. v. Zeneca Corp., 2006 CanLII 31976 (ON CA), 83 O.R. (3d) 792, 272 D.L.R. (4th) 545 (Ont. C.A.), Moore v. Getahun, 2015 ONCA 55, Nikolakakos v. Hoque, 2015 ONSC 4738, and Bookman v. Loeb, 72 R.F.L. (6th) 388, 2009 CanLII 33528 (Ont. S.C.), regarding the requirements for the expert report. In Conceicao, the Court of Appeal for Ontario ordered the production of the foundational information for the findings, opinions and conclusions of the expert contained in a memorandum of a lengthy telephone conversation between previous counsel and the expert witness. It must be noted that the litigation privilege attached to the memorandum remained intact: “[r]emoving the privilege for the document itself is not necessary to obtain that information, but does run the risk of requiring disclosure of properly privileged information that is often intertwined with discoverable information in the lawyer’s work product” (para. 21).
[34] Nikolakakos is a personal injury matter. The Plaintiff agreed to attend a defence medical examination as long as her counsel received the letter of instruction provided by the Defendant’s counsel to the physician. Master Graham determined:
if the defendants do decide to call Dr. Zarnett to testify at trial, they will be taken to have waived privilege over their instructing letter by way of the limited “implied waiver” referred to in paragraph 75 of Moore v. Getahun, supra, which applies to “material relating to formulation of the expressed opinion”. Therefore, should the defendants elect to call Dr. Zarnett as a witness at trial, they must produce their counsel’s instructing letter to him (para. 22).
[35] In Bookman, the Applicant took the position that the experts’ files are protected by litigation privilege. Notwithstanding, Mesbur J. ordered the disclosure of the letters of instruction to each of the experts from current or prior counsel.
[36] Maxrelco argues that these cases are no longer relevant since the decision of the Court of Appeal for Ontario in Moore. I do not agree with this position. All of the cases must be read in context and applied to the specific facts. Moore reviews the preparation and use of expert reports in a medical malpractice action. The Court analyses whether the consultations between counsel and expert witnesses must be disclosed to the opposing party.
The starting point for analysis is that such consultations attract the protection of litigation privilege. Litigation privilege protects communications with a third party where the dominant purpose of the communication is to prepare for litigation…It is important to note that the litigation privilege attaching to expert reports is qualified, and disclosure may be required in certain situations...Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the report, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness (paras. 68, 73 & 78).
[37] I have not been provided with any evidence to support that counsel for Maxrelco acted inappropriately with the expert witness. There is no foundation to support a reasonable suspicion that counsel improperly influenced the reports. Lumipro should not be provided with the interactions between counsel and the expert witness.
[38] In addition, the provision in Rule 53.03(2.1)(3) of the Rules has been met by Maxrelco since it provided the required information in the Introduction of the two expert reports. Lastly, based on the facts of this cases and considering the applicable case law, I find that the retention letters remain covered by litigation privilege. Consequently, Maxrelco is not required to produce to Lumipro the instruction letters sent to the expert witness.
Conclusion
[39] For the reasons noted previously, I provide as follows:
(1) Does Lumipro require leave to proceed with its motion to compel answers to follow-up questions on answers to undertakings?
No, leave is not required.
(2) Is Maxrelco required to answer the questions arising from the answers to undertakings?
Maxrelco is not required to answer #1D at Tab 2G of the Defendant’s Motion Record. However, Maxrelco must answer #2C at Tab 2G. The answer to #2C must be provided within 30 days of the date of these Reasons for Decision.
(3) Is Maxrelco required to produce the insurance policy?
Maxrelco must produce the insurance policy within 15 days of the date of these Reasons for Decision.
(4) Is Maxrelco required to produce the instruction letters sent to its expert witness?
Maxrelco is not required to produce the instruction letters.
Costs
[40] Given that the parties have both been successful on parts of this motion, I do not award any costs.
Justice M. O’Bonsawin
Released: September 29, 2017
CITATION: Maxrelco Immeubles Inc. v Jim Pattison Industries Ltd. 2017 ONSC 5836
COURT FILE NO.: 10-49174
DATE: 2017/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Maxrelco Immeubles Inc.
Plaintiff
– and –
Jim Pattison Industries Ltd. c.o.b. as Pattison Sign Group and Lumipro Inc. c.o.b. as Lumipro Signs and Lighting Services
Defendants
Reasons for decision
O’Bonsawin J.
Released: September 29, 2017