MOTION HEARD: 20171101
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carolyn Liddy, Plaintiff
AND:
Anna Mauro, City of Vaughan, Bill Robinson, Michael Ridgwell, Defendants
BEFORE: Master B. McAfee
COUNSEL: F. Souza, Counsel for the Defendant Anna Mauro
J. Streisfield, Counsel for the Plaintiff
F. P. Carpenter, Counsel for the Defendants City of Vaughan, Bill Robinson and Michael Ridgwell
HEARD: November 1, 2017
REASONS FOR DECISION
1The defendant Anna Mauro (Mauro) brings a motion for answers to undertakings and answers to questions refused on the examination for discovery of the plaintiff Carolyn Liddy (the plaintiff) that took place on July 26, 2017. Mauro also seeks an order that the plaintiff re-attend on examinations for discovery to answer follow up questions.
2The defendants the Corporation of the City of Vaughan, Bill Robinson and Michael Ridgwell (the Vaughan defendants) support Mauro’s motion and request that any order for a re-attendance also be applicable to them. If a re-attendance is ordered, they request that they be permitted to attend and ask any proper and relevant follow up questions.
3The plaintiff opposes the motion.
4No facta were filed. One decision was referred to during argument of the motion (Moore v. Getahun, 2015 ONCA 55).
5As a preliminary issue, the plaintiff sought an adjournment of the motion. The plaintiff advises that she wishes to cross-examine Ms. Cece, a law clerk, on her affidavit sworn October 26, 2017. The plaintiff also submits that the most efficient use of the court’s time is to have the within motion heard together with the motion that the plaintiff intends to schedule and serve shortly.
6I declined to grant the adjournment. The trial date is imminent. The trial is now scheduled for January 29, 2018. At the plaintiff’s request, the original trial date was adjourned earlier this year. The most efficient use of court time is to hear the within motion in the 90 minutes scheduled on the list. I struck the affidavit of Ms. Cece, which is further moving material and was short served.
Undertakings
Nos. 1 and 15
7The plaintiff’s position is that these undertakings have been answered.
8The supporting documentation has not been provided. The undertakings remain outstanding and shall be answered.
Nos. 5 and 17
9The plaintiff’s position is that these undertakings have been answered.
10Although various videos have been produced, the videos that may have been made by Eco Lawn have not been identified. The videos made by Eco Lawn shall be produced. If all videos made by Eco Lawn have already been produced, the videos made by Eco Lawn shall be identified. If Eco Lawn did not make any videos, same shall be confirmed. The undertakings remain outstanding and shall be answered.
Refusals
Nos. 1 and 2
11The plaintiff’s position is that the questions are improper and, in any event, the questions have been answered.
12Mauro agrees that the questions have been answered but seeks to ask follow up questions. Mauro does not wish to encounter any issues with respect to any follow up questions at any re-attendance that may be ordered. Mauro requests a ruling in the circumstances.
13There is no issue between the parties that the questions have been answered. To the extent that there may be an issue on any re-attendance ordered, I am satisfied that the questions are proper and relevant questions based on the further amended statement of claim at paragraphs 1(a)(ii) and 47(a).
Nos. 3, 4 and 5
14The plaintiff argues that the questions are not proper.
15Refusal no. 3 seeks production of “…copies of emails sent to any experts in order to retain them or advise with respect to the facts relied upon for the reports produced.”
16There is no factual foundation to support a reasonable suspicion that counsel improperly influenced any expert. Notes of interactions between counsel and an expert witness are not producible in the circumstances (see Moore at para. 78). The question need not be answered.
17Refusal no. 4 is relevant based on the further amended statement of claim at paragraphs 1(a)(ii) and 47(a). Questions concerning the findings, opinions and conclusions of an expert are proper (Rule 31.06(3)). The question shall be answered.
18Refusal no. 5 requires the plaintiff to “ask your various experts to provide copies of any notes that they took with respect to any site visits and any consultations or meetings that they had with Ms. Liddy.” I have considered Moore and in particular paras. 74 and 75 relied on by Mauro. I am not satisfied of a basis to order production of the experts’ notes. The question need not be answered.
No. 6
19The plaintiff argues that the question is not relevant.
20I am satisfied that the question is relevant based on the claim at paragraph 1(a)(ii) of the further amended statement of claim. The question shall be answered.
No. 7
21Mauro asks that Mr. Majkot’s file be produced in relation to his report. The plaintiff argues that this is not a proper question.
22I am not satisfied that Mr. Majkot is required to comply with the broad request to produce his file in relation to his report. Mr. Majkot is put forward by the plaintiff as an expert. Mr. Majkot has signed an acknowledgment of expert’s duty. There is no factual foundation to support a reasonable suspicion that counsel improperly influenced Mr. Majkot (see Moore at para. 78). The question need not be answered.
No. 8
23The plaintiff has provided a response to the question. The plaintiff’s response is “See Eco Lawn reports delivered to date. Note also expert reports are due November 15.”
24The answer given is not fully responsive to the question. The question is relevant based on the further amended statement of claim at paragraph 1(a)(ii). A damages brief specifying the exact amounts shall be provided. The question shall be answered.
Re-Attendance
25Having regard to the nature of the undertakings given and the questions refused that are now ordered to be answered, I am satisfied that a re-attendance to answer follow up questions will serve a useful purpose and I so order.
26Mauro and the Vaughan defendants attended the examination for discovery of the plaintiff at issue on this motion. Counsel for Mauro and counsel for the Vaughan defendants asked questions during the examination for discovery. There is no reason to prevent the Vaughan defendants from attending on the re-attendance and asking proper and relevant follow up questions and I so order.
Costs
27Of the twelve contested questions, Mauro succeeded on nine questions. Mauro also succeeded on the issue of re-attendance.
28Mauro seeks costs of the motion in the all-inclusive sum of $2,224.00 subject to my consideration of Mauro’s offer to settle provided to me in a sealed envelope. Mauro did not obtain a result as favourable or more favourable than her offer to settle.
29The plaintiff did not submit a costs outline. The plaintiff seeks costs in the all-inclusive sum of $2,500.00 for costs of the motion, including costs relating to the contested adjournment.
30The plaintiff is not entitled to costs of the motion. Although I struck the affidavit, the plaintiff’s position remained that the motion ought to be adjourned. The plaintiff was not successful in her request for an adjournment. The notice of cross-examination of Ms. Cece was not served in accordance with the Rules and a certificate of non-attendance should not have been issued.
31Mauro was substantially, but not entirely successful on the motion. I am satisfied that Mauro is entitled to some costs of the motion. In my view the all-inclusive sum of $1,250.00 is a fair and reasonable amount that the plaintiff could expect to pay for costs of the motion in the circumstances of the motion. The costs are payable by the plaintiff to Mauro in the cause.
Master B. McAfee
Date: November 3, 2017