Court File and Parties

CITATION: Liddy v. City of Vaughan, 2017 ONSC 7304

COURT FILE NO.: CV-09-383329

MOTION HEARD: 2017-12-06

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: J. Streisfield, Counsel for the Plaintiff

F. P. Carpenter, Counsel for the Defendants City of Vaughan, Bill Robinson and Michael Ridgwell

HEARD: December 6, 2017

REASONS FOR DECISION

[1] The plaintiff Carolyn Liddy brings a motion for the following relief: leave pursuant to Rule 48.04(1) if necessary; an order requiring the defendant Bill Robinson to serve a further and better affidavit of documents disclosing, among other things, his daytimers for the years 2007 and 2008 and other years up to and including 2011 (his last year at the City of Vaughan); answers to undertakings given at the examination for discovery of Robinson held on October 19, 2017, and an order that Robinson re-attend in Toronto at his own expense to answer follow up questions; answers to questions refused or taken under advisement at the examination for discovery of Robinson held on October 19, 2017, and an order that Robinson re-attend in Toronto at his own expense to answer follow-up questions; an order requiring the defendant the City of Vaughan to deliver up for review and inspection by the plaintiff the original of Robinson’s diaries (un-redacted) for the years 2007 and 2008 and any other years (up to 2011) that Robinson made entries in his diaries relating to or touching the subject matter of the within litigation; an order abridging the time for service of this motion; and, costs of the motion on a substantial indemnity basis as against Vaughan and Robinson.

[2] The defendants, Vaughan, Robinson and Ridgwell (collectively “the responding defendants”) oppose the motion.

Relief at Paragraph 1 of the Notice of Motion: Leave Pursuant to Rule 48.04(1)

[3] The plaintiff set the action down for trial on or about November 15, 2011. By order of Justice Wilson dated March 20, 2017, the trial of this action was adjourned from April 18, 2017, to January 29, 2018, for 20 days, peremptory to the plaintiff.

[4] As stated in my reasons for decision in this action dated October 5, 2017 (2017 ONSC 5918), at para. 5, there are two lines of authority concerning the test to be applied. The more established test requires the moving party to show a substantial or unexpected change in circumstances. The broader test requires that the step is necessary in the interests of justice.

[5] To the extent that leave is required, leave is granted to bring the motion. The relief concerning undertakings and refusals and a request for a further re-attendance arise out of Robinson’s October 19, 2017, re-attendance. The re-attendance was ordered on October 5, 2017.

Relief at Paragraph 2a of the Notice of Motion: A Further and Better Affidavit of Documents from Robinson

[6] The plaintiff seeks an order that Robinson serve a further and better affidavit of documents disclosing, among other things, his daytimers for the years 2007 and 2008 and other years up to and including 2011 (his last year at Vaughan).

[7] The motion in this regard is dismissed.

[8] The existence of Robinson’s daytimers has been known for many years. Robinson’s affidavit of documents sworn November 23, 2010, contained extracts from his daytimers at tabs 40 and 45 to schedule “A”. The affidavit of documents of Vaughan sworn October 25, 2010, also contained extracts from Robinson’s daytimers at tabs 51 and 60 to schedule “A”.

[9] Robinson was first examined for discovery on August 30, 2011. During that examination he was asked about his daytimers and undertook to take a second look and produce any relevant extracts.

[10] On July 17, 2012, as part of Robinson’s answers to undertakings, redacted copies of his daytimers were provided.

[11] The daytimers were also the subject of the further examinations for discovery of Robinson held on June 26, 2015 and October 19, 2017.

[12] These redacted copies of the daytimers were also listed in the second supplementary affidavit of documents of Vaughan sworn July 30, 2017.

[13] At no time between the delivery of Robinson’s answers to undertakings in 2012 until 2017 did the plaintiff ask to inspect the originals of Robinson’s 2007 and 2008 daytimer journals, despite the responding defendants offering, in 2012, an inspection of the entry dated November 2, 2007.

[14] The December 1, 2017, motion record is the first request the plaintiff has made for Robinson’s daytimers dating from 2009 to 2011.

[15] With respect to the clearer copies of the daytimers provided on November 27, 2017, I am not satisfied that the four differences noted on the motion (August 1, 2007, August 3, 2007, November 2, 2007, September 17, 2007) are such that would warrant any further relief being granted at this stage in the proceedings.

[16] As noted above, there is a long trial scheduled in this matter for January 29, 2018, for 20 days, peremptory to the plaintiff.

[17] In all of these circumstances, the motion for an order that Robinson serve a further and better affidavit of documents disclosing his daytimers for the years 2007 and 2008 and other years up to and including 2011, is dismissed.

Relief at Paragraph 2b of the Notice of Motion: Answers to Robinson’s Undertakings and Re-Attendance in Toronto at Robinson’s Expense to Answer Follow-Up Questions

[18] It is now agreed that the one undertaking listed in the chart as question 438, page 82, has been answered. The plaintiff seeks an order that Robinson re-attend in Toronto at his own expense to answer follow-up questions.

[19] Robinson has been examined three times. He was examined for discovery on August 30, 2011, June 26, 2015, and October 19, 2017. The October 19, 2017 examination of Robinson was, as agreed to by the plaintiff, limited to a further one hour (see paragraphs 20 and 22 of my reasons for decision dated October 5, 2017). Robinson’s third attendance on an examination for discovery on October 19, 2017, proceeded for one hour and twenty minutes.

[20] As noted above, there is a long trial date of January 29, 2018, peremptory to the plaintiff.

[21] In all of these circumstances, I am not satisfied that a further re-attendance by Robinson to answer follow up questions arising from the answer given to this undertaking is reasonable or just nor will it serve a useful purpose. The motion in this regard is dismissed.

Relief at Paragraph 2c of the Notice of Motion: Answers to Robinson’s Refusals and Questions Taken Under Advisement and Re-Attendance in Toronto at Robinson’s Expense to Answer Follow-Up Questions

[22] Refusal No. 1: The Vaughan defendants agree that the plaintiff can rely on the answer given by Robinson on the record at question 2, page 3.

[23] Refusal No. 2: I am satisfied that the question is proper. The re-attendance was ordered in part to answer questions arising out of Vaughan’s supplementary affidavit of documents. An answer has been provided in accordance with Rule 34.12(2).

[24] Refusal Nos. 3 and 4: For the reasons given above with respect to the relief at paragraph 2a, the refusals need not be answered.

[25] Refusal No. 11: This question was asked with respect to a document found at tab 37 of the 2010 productions of the defendant Anna Mauro. The document is not a new document. I am also not satisfied that the question only arises as a result of recent amendments or answers to undertakings provided on September 25, 2017. The question need not be answered.

[26] During the submissions concerning the refusals and in particular refusal numbers 3 and 4, plaintiff’s counsel requested an order striking of the affidavit of Catherine DiMarco sworn November 27, 2017. The plaintiff argues that at Ms. DiMarco is attempting to be both counsel and advocate. Ms. DiMarco is a lawyer at the law firm of Heal & Co. LLP, counsel for the responding defendants. I do agree with the plaintiff that the source of the information at paragraph 6 of the affidavit is not stated and I have given no weight to that paragraph. I did not rely on the information in that paragraph in making my determination. I am not satisfied of a basis to strike the affidavit evidence of Ms. DiMarco in its entirety as requested. The request to strike the affidavit is denied.

[27] For the reasons given above with respect to the relief at paragraph 2b, I am not satisfied that it is reasonable or just to order Robinson to attend on an examination for discovery on a fourth occasion at this time nor am I satisfied that a re-attendance will serve a useful purpose. The motion in this regard is dismissed.

Relief at Paragraph 3 of the Notice of Motion: Review and Inspection by the Plaintiff of Robinson’s Original, Unredacted Diaries

[28] As set out in the plaintiff’s factum at paragraph 12d, the plaintiff now seeks an order that the diaries be produced to the court for review.

[29] I decline to make any order for the review and inspection of Robinson’s diaries by the plaintiff or the court for the reasons given above with respect to the relief at paragraph 2a. The motion in this regard is dismissed.

Costs

[30] If successful on the motion, the plaintiff sought costs in the sum of $8,642.00, which amount does not include HST, payable within 30 days. The responding parties sought costs of the motion in the all-inclusive sum of $6,078.62, payable within 30 days.

[31] The responding parties were substantially successful on the motion. I am satisfied that the responding parties are entitled to some costs, given their substantial success. In my view the all-inclusive sum of $5,000.00 is a fair and reasonable amount that the plaintiff could expect to pay for costs in all of the circumstances of the motion.

[32] Costs of the motion are fixed in the all-inclusive sum of $5,000.00 payable by the plaintiff to the responding defendants within 30 days.

Master B. McAfee

Date: December 13, 2017