COURT FILE NO.: CV-15-530166

MOTION HEARD: 20180308

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Julia Lipovetsky, Plaintiff

AND:

Sun Life Assurance Company of Canada, Defendant

BEFORE: Master Jolley

COUNSEL: Alon Rooz, Counsel for the Moving Party Plaintiff

S. Simpson, Counsel for the Responding Party Defendant

HEARD: 8 March 2018

REASONS FOR DECISION

[1] The plaintiff brings this motion for a further and better affidavit of documents. She has two objections to the defendant’s affidavit of documents: (1) she suspects it does not contain all of the defendant’s documents; (2) the surveillance information set out in Schedule B is not sufficiently particularized. She also seeks an order permitting her to cross examine the deponent of the defendant’s affidavit of documents.

Background

[2] On 15 April 2016 the defendant served its affidavit of documents. It listed 321 documents in Schedule A with dates ranging from May 2011 to May 2015 (apart from the policy itself which is dated 1 October 1999). In addition to the dated documents was a listing of various claim control documents and three undated documents being a member file worksheet, an LTD summary claim payments printout and a claim file worksheet. The affidavit of documents contained a Schedule B with boilerplate language and a listing claiming litigation privilege over “LTD claim display printouts”.

[3] Starting in the fall of 2017, in preparation for the defendant’s examination in April 2018, the plaintiff took the position that the defendant’s affidavit of documents was deficient in that it had been prepared 18 months earlier and was out of date. Further, its Schedule B was deficient as the LTD claim display printouts were not described with sufficient particularity on the face of the affidavit to determine whether privilege was properly claimed or if a challenge was necessary.

[4] On 12 December 2017 defence counsel confirmed that it would deliver an affidavit of documents with an updated Schedule A and a revised Schedule B in the New Year. It confirmed in early January that it was in the process of that preparation.

[5] On 16 January 2018 the plaintiff served the defendant with this notice of motion for an order requiring the defendant to serve a further and better affidavit of documents. On 25 January 2018 the defendant delivered its supplementary affidavit of documents, which crossed paths with the plaintiff’s motion record. The supplementary affidavit of documents moved the LTD claim display printouts from Schedule B to Schedule A.

Schedule A

[6] The plaintiff suspects the defendant has more documents than it has listed because its Schedule A list does not include all the documents that the plaintiff has sent the defendant since the litigation began in as part of her ongoing production obligations and in answer to her undertakings. As these documents are in the defendant’s possession, control or power and are not included, the plaintiff surmises that other documents are also in the defendant’s possession, control or power and have not been listed.

[7] The purpose of Schedule A is to ensure that each party discloses to the other every document relevant to any matter in issue in an action that is or has been in its possession, control or power. Rule 30.07 obliges a party to provide a supplementary affidavit of documents when it comes into possession or control of or obtains power over a new document that is not listed in the original affidavit of documents.

[8] It would be contrary to the direction to construe the Rules liberally to secure the just, most expeditious and least expensive determination of a proceeding on its merits and contrary to the direction make orders that are proportionate if the court were to read Rule 30.07 as requiring a party to produce a supplementary affidavit of documents simply to disclose to the other side documents that the other side has provided to it. Such an interpretation would also be contrary to the purpose of Rule 30.07 which is to give notice to the other side of new documents in one’s possession.

[9] Counsel for the plaintiff does not go so far to advance this proposition. But he argues that, if a party does prepare a supplementary affidavit of documents, as the defendant did here in January 2018, that affidavit must disclose all documents in a party’s possession, including all those it has obtained from the other side in the course of the litigation. To the extent those documents are not disclosed, there is the prospect that the defendant has other documents it has not disclosed.

[10] I do not read the Rule as requiring a party to list documents it has received from the other side after the commencement of the litigation in a supplementary affidavit of documents. However, even if that were a requirement, I do not find the failure to do so is evidence that a relevant document may have been omitted. I would view it, at its highest, as a party interpreting the Rule to mean that it was not required to list documents it received from the other side after the commencement of litigation in its Schedule A.

[11] The plaintiff argues that it is probable that the defendant has gathered additional documents that it wishes to rely on other than those listed in its supplementary affidavit of documents. There is no evidence before me that would support that inference or the supposition that the defendant has relevant documents that it has not listed. Accordingly, the plaintiff’s motion for a further and better affidavit of documents on that basis is denied.

Schedule B

[12] The defendant has listed three documents in Schedule B under litigation privilege:

(1) Report dated 21 November 2016 from Xpera Investigation to Heather M. Gastle, Bennett Gastle PC, with enclosures;

(2) Open Source Investigation Summary Report dated 13 July 2017 from AFIMAC Global to Susan Batchelar, Sun Life; and

(3) Report dated 13 July 2017 from Survecon Corporate Services Ltd. To Heather Gastle, Bennett Gastle PC, with enclosures.

[13] As noted in the preamble to Schedule B to the affidavit of documents form, a party is required to “set out the nature and date of the document and other particulars sufficient to identify it. State the grounds for claiming privilege for each document.” The purpose of listing documents in Schedule B is to give the other side notice of those documents over which a party claims privilege. Particulars are required with sufficient detail to permit the claim for privilege to be challenged. This was also the plaintiff’s initial interpretation of the Rule. Plaintiff’s counsel’s noted in his December 2017 letter to the defendant, the purpose of providing particulars of Schedule B is so that the opposite party can determine whether privilege was properly claimed or if a challenge was necessary.

[14] The plaintiff takes the position in order to determine the propriety of the privilege claim, she is entitled to know whether the document is a report, photograph or video (I note that each entry describes the document are a report), the dates of the reports, photographs or video, the name of the investigative entity that provided the report, the number of pages in the report, the number of photographs, and the number of videos, as applicable.

[15] In my view, the defendant has provided this information and sufficient particulars at this stage to comply with the purpose of Schedule B. The plaintiff has the date of each report, the corporate creator of the report and the recipient of each report.

[16] On argument of the motion, the plaintiff argues that she was also entitled as part of the Schedule B listing to know the times when each session of surveillance began and ended, the names and addresses of the individuals who conducted each round of surveillance, the times when any recording began and ended and when any photographs were taken, the names or a general description of the websites that the surveillance investigators visited in connection with their surveillance of the plaintiff, the names of any organizations or individuals with whom the surveillances investigators communicated in relation to their surveillance of the plaintiff and the dates on which those communications occurred and whether any individuals or organizations provided oral or written statements to the surveillance investigators as part of the investigation. The plaintiff relies on the decision of Cromb v Bouwmeester 2014 ONSC 5318 for this proposition. The facts of that case are quite different. There the defendants had conducted the surveillance after the action was set down for trial and examinations for discovery had been completed. On my reading of the case, that level of production was ordered because the information could not be obtained, as it normally would be, at examinations for discovery.

[17] Here, I am of the view that the level of detail sought by the plaintiff to be included in Schedule B to the affidavit of documents is not required. As is the usual course, plaintiff’s counsel has the opportunity to ask the defendant on its upcoming examination for discovery about the details of the contents of the privileged reports including dates, times and locations, particulars of the activities and observations made and the names and addresses of the persons who conducted the surveillance. If information comes to light in that examination that suggests these reports by investigators that were given to counsel and given to Sun Life are not in fact privileged, the plaintiff may then bring a motion challenging the privilege claim.

[18] I am of the view that the defendant has complied with its disclosure obligations with regard to the documents listed in Schedule B. The plaintiff’s motion for a further and better affidavit of documents on that basis is denied.

Cross Examination

[19] Rule 30.06 authorizes the court to order a party to attend for cross examination on its affidavit of documents where it is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the affidavit of documents. Other than the documents the defendant has received from the plaintiff in the course of the litigation itself, I have been pointed to no evidence that suggests that the defendant has omitted any documents from its affidavit of documents.

[20] For the reasons set out above, the motion to permit the plaintiff to cross examine the defendant on its affidavit of documents is denied.

Costs

[21] The plaintiff has not succeeded on her motion and the defendant is entitled to costs. The defendant suggests that an award of substantial indemnity costs would be appropriate because the plaintiff brought this motion in the face of the defendant’s representation that its supplementary affidavit of documents was being produced and would be delivered. I do not find that sufficient grounds for such an award. Further I am cognizant that this is a claim for long term disability benefits and the evidence before me is that the plaintiff has not been working for some time due to the disability she alleges.

[22] I order the plaintiff to pay the defendant its costs of the motion on a partial indemnity scale in the amount of $2,200 at the conclusion of the hearing of this action.

Master Jolley

Date: 9 March 2018