CITATION: Simmons v. Thunder Bay (City), 2017 ONSC 5893
COURT FILE NO.: CV-14-0270
DATE: 2017-10-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DIANA SIMMONS and JAMES SIMMONS
Plaintiffs
- and -
THE CORPORATION OF THE CITY OF THUNDER BAY
Defendant
D. Lester, for the Plaintiffs
E. Prpic, for the Defendant
HEARD: September 28, 2017, at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decision On Motion
[1] This is a motion to compel answers to refusals on a continuation of an examination for discovery of a representative of the defendant.
[2] In the action, the plaintiffs claim damages for a trip and fall on the evening of August 8, 2012, on a sidewalk owned by the defendant, The Corporation of the City of Thunder Bay (the “City”).
[3] On the examination for discovery of the City’s representative on May 27, 2015, the City refused to answer questions relating to street lighting on the grounds that issues of street lighting and visibility had not been pleaded in the statement of claim.
[4] On a motion brought by the plaintiffs, I made an order on March 17, 2016, which granted leave to the plaintiffs to amend their statement of claim to allege that the City had failed to properly illuminate the sidewalk and to properly inspect the street lighting. I also ordered that the City’s representative answer certain refusals set out in Schedule “B” to the order. The parties had agreed upon the wording of those refusals. Included in the refusals was:
- Produce the policies and procedures for the City of Thunder Bay with respect to the inspection of street lighting in effect on August 8, 2012.
[5] The order also provided that:
the Plaintiffs will be allowed to conduct a further examination for discovery of the Defendant’s representative, Jesse Mikulinski, with respect to questions arising from the answers to the refusals set out in Schedule “B”.
[6] In accordance with the order, counsel for the City sent a letter dated May 2, 2016, to counsel for the plaintiffs responding to the refusals. With respect to refusal #4, the response was:
there were no written policies and procedures for the inspection of street lighting in effect as of August 8, 2012.
[7] On the continuation of Mr. Mikulinski’s examination for discovery on October 6, 2016, plaintiffs’ counsel asked him:
are there currently written… policies and procedures for the inspection of street lighting?
[8] In response to the question, the defendant, through its counsel, refused to advise of the current policies and procedures with respect to street lighting inspections.
[9] This refusal is based on two objections. First, the defendant maintains that counsel had agreed that the scope of inquiry, as it related to the City’s policies and procedures for the inspection of street lighting, would be restricted to those policies and procedures in place as of August 8, 2012. Second, the defendant submits that any written policies or procedures with respect to street lighting inspections by the City after the alleged incident of August 8, 2012 were not relevant to the issues in the action.
Discussion
[10] In my view, the defendant should answer the refusal to this question as to whether any written policies and procedures for the inspection of lighting on City streets and sidewalks came into effect after August 8, 2012 and should answer any proper questions arising from the answers to the refusal.
[11] With respect to the defendant’s first objection, I accept that in correspondence counsel had agreed on the wording of refusal #4, set out in Schedule “B” to my order of March 17, 2016, namely, that the question that Mr. Mikulinski refused to answer addressed only policies and procedures in effect on the day of the alleged trip and fall. However, the order of March 17, 2016 expressly granted leave to the plaintiff to conduct a further discovery arising out of Mr. Mikulinski’s answer that there were no policies and procedures in effect on the date of the alleged accident. Provided that it meets the test of relevance, a question as to whether the City had instituted any policies and procedures for the inspection of street and sidewalk lighting after the alleged accident is a question that can be said to reasonably arise out of Mr. Mikulinski’s answer that no such policies and procedures existed on August 8, 2012. Such a question would therefore comply with my order.
[12] With respect to the defendant’s second objection, I am satisfied that the proposed question is relevant for at least the purposes of discovery.
[13] The issue of the relevance of questions pertaining to remedial measures taken by a defendant after the event giving rise to the action was discussed by the Divisional Court in Algoma Central Railway v. Herb Fraser and Associates Ltd. (1989), 1988 CanLII 4740 (ON SC), 66 O.R. (2d) 330 (Div. Ct.). That case concerned an action for damages resulting from a fire on a ship. The plaintiff sought on discovery to ask questions about the safety practices adopted by the defendant after the fire. The defendant objected to answering the questions.
[14] The Divisional Court reviewed the conflicting lines of authority respecting the issue. Older cases had refused to allow such questions to be asked both at trial and on discovery on the grounds that (a) the probative value in proving negligence was only slight because a defendant might make repairs after an accident out of an abundance of caution and (b) the policy goal of encouraging people to take precautionary measures after an accident, without having to fear that evidence of such actions would be used against them, outweighed the probative value of the evidence.
[15] The Divisional Court held at pp. 334-335:
We are of the view that the rationale for the rule must be looked at anew. It is axiomatic that evidence which is relevant is admissible unless some policy reason exists for its exclusion. Here it has always been admitted that evidence of remedial measures has at least some probative value. However, the evidence is excluded on policy grounds in order that people are discouraged from taking precautionary measures which may be later used against them. This is a fallacious argument. It cannot be said that, rather than furnishing some evidence which may or may not be prejudicial to one’s defence of an action, one will instead take no remedial measures thus risking further actions being brought by later injured plaintiffs.
[16] The Divisional Court concluded that such questions are proper at the examination for discovery stage of proceedings. “Matters of admissibility and the weight to be given to such evidence at trial should be left to the trial judge to determine.” See p. 335.
[17] In Sandhu v. Wellington Place Apartments, 2008 ONCA 215, the Court of Appeal held that evidence of remedial action, where screens in an apartment building were replaced after a child fell through a window, was admissible at trial. The Court of Appeal said that the repairs to the screen was evidence from which the jury could infer that the defendants had failed to meet a reasonable standard of care in keeping the building in good repair. It could also be evidence of a failure to take reasonable care because it was capable of showing that the defendants’ inspection of the building before the accident failed to meet a reasonable standard. See para. 56. It was relevant to the issue of the nature of steps that could be taken to reduce the risk. See para. 61. The Court of Appeal referred to the decision in Algoma Central Railway and agreed that there was limited value in the policy reason for exclusion of evidence of remedial action.
[18] In Marupov v. Metron Construction Inc., 2014 ONSC 3535, Master R. Dash dealt with a refusal by the Ontario Ministry of Labour to answer questions on discovery regarding pre-incident guidelines and changes in policy since the collapse of a swing-stage used during balcony repairs which resulted in deaths and injuries.
[19] Master Dash referred to Algoma Central Railway and to Sandhu, supra. in concluding that questions regarding the government’s changes in written policy after the incident should be answered. At para. 23, he held:
[23] These questions are designed to elicit any changes in training, operations or alerts that may have been instituted following and possibly as a result of the incident in this action. Generally, “remedial measures” could provide evidence of what was reasonable in the circumstances, whether a defendant took reasonable care or whether a defendant met a reasonable standard. They may have some probative value in demonstrating prior knowledge of a potential hazard or the feasibility of taking precautionary measures. Such questions are to be permitted at the discovery stage, while leaving matters of admissibility and weight to the trial judge. If the plaintiff offers evidence of remedial measures at trial, the trial judge “must balance the probative value of the evidence against its prejudicial effects” (Footnotes omitted).
[20] In the instant case, I am satisfied that at discovery it is a relevant line of inquiry to ask whether the City brought in policies and procedures for street lighting after the event of August 8, 2012. As the cases noted above hold, if there were such policies and procedures they could provide evidence of reasonable care, reasonable standards, prior knowledge or the feasibility of taking precautionary steps.
[21] The proposed questions are not in the nature of a fishing expedition. The plaintiffs have pleaded that the City failed to adequately illuminate the sidewalk, that it failed to inspect the sidewalk lighting to ensure that it was sufficient and in good working order and that it failed to have appropriate procedures to properly inspect, maintain and enforce the proper condition of the sidewalk. The lighting of the sidewalk and procedures pertaining thereto have been put in issue by the pleadings. The proposed questions are relevant to those matters in issue.
[22] An order shall go that within 30 days the City shall answer the refusal, namely:
Whether any written policies and procedures for the inspection of lighting on city streets and sidewalks came into effect after August 8, 2012.
[23] Further, Jesse Mikulinski, as a representative of the City, shall re-attend at his own expense to answer the above refusal and to answer any proper questions arising from his answer to the above refusal.
Costs
[24] The parties agreed that costs of this motion should be fixed at $1,500, all inclusive, in favour of the party who was successful on the motion. Costs of $1,500, all inclusive, shall therefore be paid by the City to the plaintiffs within 30 days.
__“original signed by”
The Honourable Justice D. C. Shaw
Released: October 3, 2017
CITATION: Simmons v. Thunder Bay (City), 2017 ONSC 5893
COURT FILE NO.: CV-14-0270
DATE: 2017-10-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DIANA SIMMONS and JAMES SIMMONS
Plaintiffs
- and -
THE CORPORATION OF THE CITY OF THUNDER BAY
Defendant
DECISION ON MOTION
Shaw J.
Released: October 3, 2017
/sab