OSHAWA COURT FILE NOS.: CV-14-88510, CV-14-88511, CV-14-88512

DATE: 20180404

ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-88510

BETWEEN:

Gary Kissoon, Ryan Thomas and Shawndel Thomas

Plaintiffs

– and –

L. Steven R.J. Backs

Defendant

– and –

Aviva Insurance Company of Canada

Third Party

J. Mahabir, for the Plaintiff

No one appearing, for the Defendant

F. Chorley, for the Third Party

HEARD: March 8, 2018

REAsONS for decision

de SA J.:

Overview

[1] Aviva Insurance Company of Canada (hereinafter “Aviva”) has brought a motion for discovery of non-parties seeking answers to questions that were refused during the course of discoveries which were conducted in January, 2016. Aviva also seeks an order directing the Plaintiffs to comply with undertakings that have remained outstanding since April 6, 2017.

[2] I order that the Plaintiffs provide answers to the undertakings within 60 days. Moreover, I will order that the “non-parties” be made available for discovery to answer the questions which had previously been refused.

[3] My reasons for decision are outlined below.

The Facts

[4] The action arises out of a motor vehicle accident which occurred on July 5, 2013. Gary Kissoon, Shawndel Thomas, and Ryan Thomas (hereinafter the “Plaintiffs”) were all driving together in one vehicle which was struck by the vehicle driven by Steven Backs (hereinafter the “Defendant”). The Defendant, Steven Backs, is no longer involved in the action and his whereabouts are unknown.

[5] The Plaintiffs are all represented by the same counsel. The Plaintiffs elected to file three separate actions all stemming from injuries allegedly suffered from this same accident. The precise reason for proceeding with three separate actions is unclear.

[6] On April 14, 2015, Justice Bale made three separate Orders requiring that the three actions be tried together or one after another pursuant to Rule 6.01. The Order of Justice Bale also added Aviva Insurance Company of Canada (hereinafter “Aviva”) as a Statutory Third Party. While the Order requires that the matters be tried together, they have remained separate proceedings until the date of trial.

[7] On April 6, 2017, Aviva brought three motions in relation to the companion actions for answers to undertakings and refusals before Justice Sosna. The undertakings have been conceded by the Plaintiffs and are no longer in issue. The refusals, however, remain outstanding and are the subject of this motion.

[8] The refusals were comprised of questions directed to a Plaintiff about the impact the accident had on the other occupants of the vehicle (the other Plaintiffs). More specifically, Aviva asked each Plaintiff what their observations were of the other occupants during the course of the accident and thereafter. The questions were directed at eliciting evidence pertaining to damages and for the purpose of assessing the credibility of the other Plaintiffs in the related proceedings.

[9] The Plaintiffs opposed all motions on the basis that the questions were not relevant to the particular proceeding in which they were being raised. In other words, Aviva was seeking to elicit information from the Plaintiffs for the purpose of a distinct action. Accordingly, the information sought from the Plaintiffs was not “relevant” to the proceeding in which it was elicited. According to the Plaintiffs, the questions exceeded the bounds of relevance as defined by the pleadings.

[10] Justice Sosna agreed with the Plaintiffs. Aviva’s motions to compel the Plaintiffs to answer the refused questions were denied. In his oral reasons, Justice Sosna stated that but for the existence of Rule 31.10, the motion would have been granted. Justice Sosna invited Aviva to bring the motion under Rule 31.10. Rule 31.10 provides as follows:

31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation. R.R.O. 1990, Reg. 194, r. 31.10 (1).

[11] Answers to the questions that were the subject of that original motion remain outstanding. The Plaintiffs now take the position that Aviva is estopped from raising the issue given the decision of Justice Sosna. Alternatively, the Plaintiffs take the position that the test set out in section 31.10 has not been met.

[12] The refusals have been outstanding since January 12, 2016.

Issues Raised on the Motion

[13] The questions raised on the motion can be summarized as follows:

Should Aviva be permitted to examine a Plaintiff as a non-party regarding his observations of the other occupants of the vehicle?
Does the doctrine of res judicata apply to Aviva’s request given the decision of Justice Sosna?

Analysis

The Purpose of Discovery

[14] Rule 31.03(1) provides that a party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court. Rule 31.06(2) also permits a party to obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action.

[15] Rule 31.10 provides that, the court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation. An Order under subrule (1) shall not be made unless the Court is satisfied that:

a) The moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

b) It would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

c) The examination will not unduly delay the commencement of the trial of the action, entail unreasonable expense for the other parties, or result in unfairness to the person the moving party seeks to examine.

[16] Under normal circumstances, Rule 31.10 will not be engaged. Information can generally be obtained from a party directly, can be obtained from a non-party with the assistance of a party, or will be easily obtainable through speaking to a witness (non-party) directly. Unless there is a constructive refusal, or an obstacle to obtaining the information/evidence, an order under Rule 31.10 will be unwarranted: Famous Players Development Corp. v. Central Capital Corp., 1991 7202 (ON SC).

[17] That being said, a court should not be too ready to refuse a party access to discovery of a non-party where the non-party is unwilling to cooperate in providing evidence that is not otherwise available. The requirement for leave is directed at avoiding subjecting a non-party to the discovery process unnecessarily. It is aimed at minimizing costs and inconvenience to non-parties who are not otherwise participants in the action. It is not directed at arbitrarily limiting access to a witness with relevant evidence. While Rule 31.10 is clearly not intended to invite fishing expeditions, or subject non-parties to unnecessary inconvenience or expense, Rule 31.10 should still be considered and applied having regard to the general purposes and objectives underlying discovery.

[18] Fulsome discovery allows parties to know the case available to them and to meaningfully understand the case against them. Discovery allows parties to properly prepare for trial, but it also allows parties to narrow the live issues requiring trial. In many instances, discovery of relevant witnesses in advance of the trial may obviate the need for a trial altogether. As such, unduly limiting discovery may force parties to unnecessarily assume the expense of a trial. The approach to be taken to the discovery of non-parties is directed at the efficient use of resources, not at increasing expense and delay. This was explained in the case of Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P., 2014 ONSC 2699, at para. 13:

The defendants submitted that granting a Rule 31.10 order would offend the principle of proportionality. I disagree. On the contrary, to refuse to grant the order would infringe the proportionality principle by ensuring some delay during the course of the trial as the parties, in effect, conducted an examination for discovery of the RBC witness within the confines of the trial court room. In civil matters, the trial is no place to conduct initial examinations for discovery; trial time should not be wasted in that way. Our Rules provide mechanisms, such as Rule 31.10, to conduct such detailed examinations prior to trial, ensuring that the actual questioning conducted at the trial will be much more focused. [Emphasis added.]

[19] In this case, the non-parties are actually parties to the broader action given the Order of Justice Bale. The matter has been directed to be tried together or one after the other given the commonality of issues at play. As such, technically speaking, there is a “right” to discover the Plaintiffs as parties on any issue relevant to the action.

[20] The questions are clearly relevant to the broader issues which will be raised at trial. The questions deal directly with the question of damages. The other occupants of the vehicle would be well positioned to comment on: 1) the nature of the injuries sustained by the other occupants; 2) the location where the other occupants were sitting at the time of the accident; 3) the true extent of their injuries of the occupants. The evidence obtained would also assist in assessing the credibility of the Plaintiffs’ evidence at trial. To the degree that the Plaintiff’s characterization of events differ from each other may impact on the degree to which their evidence is believed. This goes to an issue that is directly relevant at trial (damages), and is not solely relevant to collateral issues that deal purely with “credibility”.

[21] While the objection by Plaintiffs’ counsel to the questions may be sustainable if the pleadings are considered in isolation, construing relevance narrowly like this frustrates a proper examination of parties/witnesses on relevant issues. The Plaintiffs’ decision to structure the proceeding in this way, and then take a narrow approach to relevance frustrates the discovery process. It is for this reason that Justice Sosna invited Aviva to bring the motion under 31.10 in order to avoid the technical hurdle that had been created by the Plaintiffs’ chosen manner of the proceeding.

[22] When considered in context, for the Plaintiffs to maintain the objection was unreasonable and imposed unnecessary costs on all parties. This issue has been in limbo since January 12, 2016. It has been the subject of two separate motions and a delay of over 2 years. And clearly, the questions themselves could have easily been answered by the parties during the course of the discovery. The refusal and the general approach taken by the Plaintiffs is clearly contrary to the principle of proportionality outlined in Rule 29.2.

[23] Rule 1.04(1) provides that the Rules shall be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits". In this case, the rules have been used to achieve the exact opposite result. In the circumstances here, what matters is that Aviva have access to relevant information, and be provided proper access to the relevant witnesses. These are Plaintiffs where the matter will be tried together, or one after the other, because of the common issues. To separate the examinations in this manner only adds unnecessary expense to the proceedings. Such an approach to the litigation is hardly what is contemplated by the rules, nor is it in the interests of justice.

[24] Ideally, the matters should have been consolidated or at least had common discoveries from the outset given that the proceedings all relate to a single transaction with common issues. Given the decision of Justice Sosna, however, I will not revisit this issue at this point. Clearly, Aviva is not in a position to directly interview the witnesses/Plaintiffs on these issues directly given that they are represented parties. I don’t agree with the Plaintiffs’ counsel that the information can equally be obtained by examining the injured party directly. The evidence of other witnesses/Plaintiffs regarding their observations of other occupants in the vehicle is clearly relevant to the issues at trial. This is not “unnecessary” discovery of a non-party.

[25] In the circumstances here, I will grant leave to examine each of the non-parties on the issues outlined by Aviva in its motion materials. The matters should be treated as a single proceeding for the purposes of examinations moving forward should any similar issues arise.

[26] I have reviewed the costs submissions of the parties. The costs of $7,000 are ordered in favour of Aviva.

[27] I thank counsel for their submissions.

Justice C.F. de Sa

Released: April 4, 2018