COURT FILE NO.: 1791/17
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARA WALKER
Plaintiff
– and –
RIVER DOXTATOR, WILLIAM DOXTATOR and INTACT INSURANCE COMPANY
Defendants
C. Martin, for the Plaintiff
P. Entecott for the Non-Party Respondent, Attorney General of Ontario
HEARD: March 16, 2018
McArthur, M.D., J.
Introduction
[1] The plaintiff’s motion seeks an order under rule 30.10 of the Rules of Civil Procedure requiring the non-party, the Attorney General of Ontario, to produce a copy of the Crown Brief that involves of a motor vehicle accident that occurred on August 9, 2015.
[2] The plaintiff was a passenger in a motor vehicle operated by the defendant, River Doxtator, and owned by the defendant, William Doxtator. As a result of the accident, the plaintiff is alleged to have sustained serious injuries.
[3] The Plaintiff obtained a heavily redacted copy of the Crown Brief through a Freedom of Information and Protection of Privacy Act request. The contents include an Occurrence Summary, a Technical Collision/Reconstruction Report, Supplementary Occurrence Report involving two crews of paramedics, notes and/or witness statements of at least eight police officers and the witness statement of the plaintiff.
[4] Certain documents were withheld by the Crown and others substantially redacted on a number of grounds including individual’s personal privacy.
[5] The defendants River Doxtator and Intact Insurance Company have been served with the statement of claim. The remaining defendant, William Doxtator, has not as the Plaintiff has been unable to locate him. An extension of time to serve the statement of claim has already been granted. Neither River Doxtator nor Intact Insurance Company have been required to deliver a statement of defence so far.
[6] River Doxtator and Intact Insurance Company have been served with the motion and respectively take no position or do not oppose the relief sought.
The Position of the Parties
[7] The Attorney General is agreeable to provide the plaintiff with the VIN number of the vehicle owned by William Doxtator along with his most recent address. The Attorney General objects to the further production of the Crown Brief on the basis that the motion is premature since statements of defences have not yet been filed.
[8] The plaintiff seeks a more complete copy of the Crown Brief. She relies on rule 30.10 of the Rules of Civil Procedure.
The Law
[9] Rule 30.10 provides as follows:
30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
[10] The plaintiff bears the onus of establishing relevance and unfairness.
[11] In D.P. v Wagg (2002), 2002 CanLII 23611 (ON SCDC), 61 O.R. (3d) 746 as affirmed by the Court of Appeal (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229, a screening procedure was adopted specifically in situations involving Crown Briefs. It was recognized that the Attorney General has the obligation to respect an individual’s privacy and must, in certain situations, refuse to produce documents or, alternatively, redact personal information before doing so.
[12] Further, it has been long-established that when the documents are in the hands of a non-party, the test for relevance is higher than in the discovery context. There must be a reasonable possibility that the information sought is logically probative of a material issue in the action. A material issue is not any issue in the action. An issue material to the action is one “which, if determined in favour of a party, would influence the court toward finding in favour of such party in the action.” See Ontario (Attorney General) v. Ballard Estate et al [1995] OJ 1854 at paragraph 11.
Analysis and Findings
[13] Rule 1.04 of the Rules of Civil Procedure provides the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. This rule cannot be used to lower the high threshold set for an order under rule 30.10. See Famous Players Development Corp. v. Central Capital Corp, 1991 CanLII 7202 (ON SC), 6 O.R. (3d) 765 at paragraphs 27-33.
[14] It can be reasonably anticipated that one or more defendants may dispute liability and damages. The plaintiff also indicated in submissions that contributory negligence may also be raised. Further, the court may be asked to determine whether the uninsured motorist coverage provisions of an insurance policy are engaged.
[15] The Attorney General submits that the issues cannot be determined based only on a statement of claim. They will not be defined until statements of defence are delivered or the time for doing so has passed. I agree.
[16] An assessment of relevance is fact specific. Pleadings frame the issues. The matters to be decided cannot be identified in a vacuum or based on experience, supposition, speculation or bald statements. As noted, in this case two defendants have not yet been required to serve a statement of defence. The third defendant has not yet been served with the originating process. The plaintiff is not yet in a position to meet the first part of the test rule 30.10(1) (a) imposes, that is, relevance.
[17] Furthermore, the Attorney General owes duties and obligations that extend beyond this court and the parties to this proceeding. Care must be taken to ensure a rule 30.10 order is not made too early.
[18] Having failed to establish relevance based on the current record, it is unnecessary to consider whether it would be unfair to require the plaintiff to proceed to trial without having the disclosure she seeks. I would simply reiterate, however, that the issue cannot be determined based only on a statement of claim when the time for response has not yet expired.
Conclusion and costs
[19] The Attorney General has expressed a willingness to produce to counsel for the plaintiff the last known address of William Doxtator and the VIN Number of the 2000 Chrysler Intrepid involved in the August 9, 2015 accident. These shall be provided by the Attorney General to the plaintiff within ten days of the release of this endorsement.
[20] In all other respects, the plaintiff’s motion is dismissed without prejudice to the right of the plaintiff to renew it once pleadings are closed.
[21] In the circumstances and in view of the counsel for the Attorney General in submissions indicating that it was not seeking costs and the otherwise efficient and effective definition of the issues and their presentation by both counsel, there shall be no order as to costs.
“Justice M.D. McArthur”
Justice M.D. McArthur
Released: April 4, 2018
COURT FILE NO.: 1791/17
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARA WALKER
Plaintiff
– and –
RIVER DOXTATOR, WILLIAM DOXTATOR and INTACT INSURANCE COMPANY
Defendants
Endorsement
McArthur, M.D., J
Released: April 4, 2018