COURT FILE NO.: CV-12-468780
MOTION HEARD: 20180518
REASONS RELEASED: 20180525
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
KISHON FELIX and CHERRYLYN FELIX
Plaintiffs
- and-
MUSTAFA OMAR, ANDRE PALMER, DAMIAN RICHARDS, ANGUS SNOW, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: G. Mays E-mail: gmays@bogoroch.com -for the Plaintiffs
S. Inkol E-mail: sinkol@blaney.com -for the Defendant, Her Majesty the Queen In Right of Ontario (the “Defendant” or the “Province”)
REASONS RELEASED: May 25, 2018
Reasons For Endorsement
I. Background
Introduction
[1] The Plaintiffs and the Defendant bring motions to compel answers to undertakings, under advisements and refusals arising from examinations for discovery.
[2] The Plaintiffs initially sought answers to 11 undertakings and 14 refusals. The Defendant’s motion initially related to 19 undertakings, 11 under advisements and 8 refusals. Telephone case conferences were held on January 25, 2018; April 20, 2018; and May 4, 2018. As a result of diligent, cooperative efforts between counsel and some case management, by the return of the motions, only 8 refusals on the Plaintiffs’ motion and 4 refusals on the Defendant’s motion remained in dispute.
[3] As set out below, case management was provided throughout this motion and discussions were held with counsel with a view to resolving and narrowing as many issues as possible. Other than the 4 refusals on the Defendant’s motion, all disputed questions were ultimately resolved by a combination of agreements between the parties and case management directions, all of which is set out below.
The Parties and the Action
[4] The Plaintiff Kishon Felix (“Kishon”) was assaulted by one or more of the Defendants Mustafa Omar, Andre Palmer, Damian Richards and Angus Snow (the “Individual Defendants”) on December 18, 2010 while Kishon and the Individual Defendants were inmates at Maplehurst Correctional Complex (“Maplehurst”) in Milton, Ontario.
[5] Kishon and Cherrylyn Felix (“Cherrylyn”), his mother and co-Plaintiff, commenced this action by Statement of Claim issued on November 28, 2012. Kishon claims general damages of $5,000,000; punitive damages of $250,000 and aggravated damages of $250,000 for among other things, physical, cognitive and emotional impairments; medical treatments; loss of competitive advantage and earning capacity; and pain and suffering. Cherrylyn claims general damages of $200,000 under the Family Law Act (Ontario); punitive damages of $50,000 and aggravated damages of $50,000.
[6] The Plaintiffs’ claims against the Province relate to the alleged negligence of Maplehurst staff, including the correctional officers who were on duty at the time of the incident, to take adequate or necessary steps to prevent or stop the assault. The Plaintiffs also allege that the Province failed to properly manage Maplehurst by hiring incompetent staff and failed to provide sufficient training, supervision and policies.
[7] On or about March 20, 2014, the Individual Defendants were noted in default.
II. The Law and Analysis
Generally
[8] Relevance and the scope of discovery were summarized comprehensively by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Discovery questions must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and “fishing expeditions” are not permitted.
[9] I have also relied on the proportionality principles and Rule 1.04. This includes the proportionality factors in Rule 29.2.03 (1) (as explained by Perell J. in Rothmans and Canadian Imperial Bank of Commerce); Rule 1.04(1) which provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits; and Rule 1.04(1.1) which requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[10] The undertakings, under advisements and refusals at issue are set out in the charts attached to the parties’ respective Motion Records (the “Charts”). All question numbers referred to below correspond with the Charts.
The Plaintiffs’ Motion
[11] The Plaintiffs seek answers to 8 refusals arising from the examination for discovery of Jason Serre on behalf of the Province conducted on May 31, 2016 and January 23, 2017. All of these refusals were resolved by discussions and agreements between the parties and case management.
[12] Refusal #1 (Question 63): The Plaintiffs request a copy of the plan of the range (the “Plan”) at Maplehurst where Kishon was incarcerated. The layout is relevant to, among other things, the location of correctional staff at the time of the incident. However, the production and disclosure of the Plan raises security concerns given that Maplehurst is a correctional facility, particularly any possible disclosure on the public record. The Plan engages section 14(1) of the Freedom of Information and Protection of Privacy Act (Ontario)(“FIPPA”) which provides that the Province “may refuse to disclose a record where disclosure could reasonably be expected to,
(e) endanger the life or physical safety of a law enforcement officer or any other person;
(i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required;
(j) facilitate the escape from custody of a person who is under lawful detention;
(k) jeopardize the security of a centre for lawful detention;”
[13] In response to these concerns, the Plaintiffs and the Defendant have agreed to the production of the Plan pursuant to the confidentiality terms set out at Tab D of the Defendant’s Motion Record (the “Confidentiality Terms”) and with redactions. I am satisfied that production of the Plan subject to the Confidentiality Terms and redactions is fair, reasonable and appropriate in the circumstances.
[14] Refusals #2, #3, #4 and #5 (Questions 183, 313, 352 and 460): The Plaintiffs seek the employment files of the 6 correctional officers who were on duty in Kishon’s unit at the time of the incident; the last known address and contact information for Paul Sukraj, one of the officers; and the last known address and contact information for Nurse Milne, the correctional nurse who treated Kishon immediately after the incident. As Mr. Sukraj is still employed as a correctional officer at another facility, his last known address and contact information are no longer necessary.
[15] With respect to the employment files of the 6 officers, the Province has already provided summaries of the relevant education and employment experience of the correctional officers on duty the day of the incident. While I agree with the Plaintiffs that there is additional relevant information and documentation in the officers’ employment files, including with respect to qualifications, training and discipline, the Plaintiffs’ request for the entire files is overbroad and disproportionate. This is consistent with the court’s conclusion in Henebry v. Her Majesty the Queen in right of Ontario, (February 9, 2016) London 5697/11 (S.C.J.) at paras. 25-27. This request also engages privacy and security issues, particularly given the nature of the officers’ occupation. After discussion and case management, the parties have agreed that the Province will produce the following for each of the 6 officers: i.) summary of their training; and ii.) information and documentation regarding any relevant disciplinary review or measures up to the date of the incident and after the incident for any discipline arising from the incident. I am satisfied that this is a reasonable and proportionate resolution.
[16] With respect to Nurse Milne, I am satisfied that, as she was the first to treat Kishon, she may have information relevant to the nature and extent of Kishon’s injuries which are at issue in this action. Ms. Milne is retired and it is unknown if the Defendant will be able to locate her or if she will have any recollection of treating Kishon. I am also mindful that this request engages the same privacy and security issues as the 6 officers. I suggested, and the parties have agreed, that a reasonable and proportionate first step is for Plaintiffs’ counsel to provide written questions for Ms. Milne to Defendant’s counsel who will make best efforts to locate Ms. Milne and if successful, forward the questions and ask her to answer them. Depending on whether or not Ms. Milne can be located and/or her answers, further relief may be sought by the Plaintiffs, however, in my view, even if her last known address and contact information is ultimately required, it should only be provided to Plaintiffs’ counsel and not disclosed to the Plaintiffs.
[17] Refusals #6 and #7 (Question 483): The Plaintiffs request an index and copies of all Standing Orders that were in effect for the 10 month period during which Kishon was in custody at Maplehurst. The Defendant has agreed to produce the Standing Orders which relate to Kishon’s admission to Maplehurst subject to the Confidentiality Terms. I agree with the Defendant that, consistent with the court’s conclusion in Henebry, the Plaintiffs’ request for copies of all Standing Orders is overbroad and properly refused (Henebry at para. 34). In order to resolve these questions, the parties have agreed that the Defendant will produce an index of all Standing Orders in effect during Kishon’s incarceration at Maplehurst together with copies of the Standing Orders related to his admission, all subject to the Confidentiality Terms. Any further requests based on the review of the index can be addressed by way of agreement or further motion or directions. In my view, this is a reasonable and proportionate resolution.
[18] Refusal #8 (Question 761): The Plaintiffs request that the Defendant advise what the 6 officers on duty were doing at the time of the incident which led to the assault. The Defendant has confirmed that the officers have no independent recollection and the Plaintiffs have advised that they are satisfied that this is a complete response to this question.
The Defendant’s Motion
[19] Only 4 questions remain at issue on the Defendant’s motion which were asked on both the examinations for discovery of Kishon and Cherrylyn. The questions relate to Kishon’s younger brother, Alex Felix (“Alex”).
[20] Refusals #2, #3, #4 and #5 (Questions 338-339) – The Defendant seeks the following information regarding Alex: i.) if he was involved in gang activity; ii.) if he was in trouble with the law including the nature of any charges and incarcerations; and iii.) his educational background and employment history. The Defendant submits that this information regarding Alex is relevant to Kishon’s damage claims for loss of income and earning capacity. Namely, the Defendant submits that the educational and employment history, criminal record and gang-related activity of his younger brother is probative of Kishon’s “possible life trajectory and his hypothetical income-earning capacity”. The Defendant further submits that because Felix and Alex were raised in the same “circumstances” and are similar in age (Alex is 1 year younger), this information about Alex is relevant to Kishon’s assertions that “but for” the incident, he would have had a productive career without any further involvement in criminal activity.
[21] The Defendant relies on numerous cases and submits that Canadian courts have found it helpful to use a sibling for comparative purposes when assessing a plaintiff’s damages. These cases include A. (D.A.) v. B. (D.K.) (1995) 27 C.C.L.T. (2d) 256 (Ont. Gen. Div.), a claim arising from the sexual abuse of a child by her father. In that case, the court based its conclusion that the plaintiff would not have obtained a university degree in part on the fact that 3 of her brothers left home at age 16 and none of them pursued a post-secondary education.
[22] The Defendant also cites Gray v. Macklin, [2000] O.J. No. 4603 (S.C.J.) where the court used a brother’s educational level as one of numerous factors in determining the earning capacity of a 15-year old plaintiff who suffered a brain injury in a motor vehicle accident. The Defendant also refers me to 3 cases from British Columbia and 1 from Saskatchewan where the educational and career histories of siblings were cited as factors in awarding damages.
[23] The Plaintiffs submit that the information requested regarding Alex is not relevant. The Plaintiffs rely on Solomonian v. Wilson, [2004] O.J. No. 2824 (S.C.J.). In that case, Pitt J. upheld a Master’s decision not to compel the younger brother of a plaintiff injured in a motor vehicle accident to answer questions regarding his own grades, scholarships and career plans. This case is not entirely helpful given that the Master concluded that “here it is sought to get at the younger brother” (who was a plaintiff) which is not the case here. However, it is instructive that Pitt J. agreed with the limits placed on the former, lower “semblance of relevancy” test applicable at the time and that the information sought was “too far removed”. Further, Pitt J. noted that none of the cases on family comparables cited by the defendants were on motions arising from discoveries.
[24] In my view, the cases relied on by the Defendant are distinguishable in numerous material respects. The main distinguishing factor is that, in the present case, Kishon was 20 years old at the time of the incident giving rise to his claim. Conversely, in all of the cases referred to me by the Defendant, the plaintiffs were minors at the time of the incidents giving rise to their claims. This is an important distinction in that Kishon has pre-incident educational and employment histories relevant to his damage claim for lost earning capacity. The plaintiffs in the cases, due to their younger ages at the time of their respective incidents, had limited or less extensive educational histories and no employment histories making sibling comparables necessary and relevant. Accordingly, I am not satisfied that this information regarding Alex is relevant, probative of matters at issue in this action, necessary or proportionate in the circumstances. Specifically, I cannot conclude that any gang involvement, criminal history or educational or employment history of Alex would contribute to the determination of the truth or falsity of Kishon’s damage claims.
[25] These cases are also distinguishable given the nature of the information sought by the Defendant. Namely, as reflected by the Defendant’s oral submissions, the primary information the Defendant seeks relates to Alex’s possible gang involvement, criminal record and incarceration for the express purpose of using it as an indicator of Kishon’s hypothetical employment and criminal “trajectory” in the absence of the incident. In my view, unlike the nature of the information sought in the cases referred to me, this information and its proposed use are potentially highly prejudicial and disproportionate in the circumstances. When considered together with the information regarding Kishon already available and my conclusions above that the information sought is not relevant, I conclude that it need not be produced. My conclusions might be different if there were any evidence or allegations by the Defendant that Kishon and Alex were involved in gang or other criminal activities together, or that the incident was related to any such activities, but that is not the case.
[26] Finally, similar to Salomonian, none of the cases referred to me by the Defendant regarding sibling comparables were decided in the context of motions arising from examinations for discovery. This further limits any application of these cases to the present circumstances given that they do not speak to or address issues relevant to the production of such information at the discovery stage of proceedings.
[27] Having considered all of the relevant factors and circumstances above, I conclude that the information sought by the Defendant regarding Alex is not relevant and is disproportionate. The Plaintiffs are not required to answer these questions and the Defendant’s motion in this regard is dismissed.
III. Disposition
[28] Order to go as follows:
i.) the Defendant shall produce the Plan subject to the Confidentiality Terms and redactions within 60 days;
ii.) the Defendant shall produce the following for each of the 6 officers on duty during the incident: i.) a summary of their training; and ii.) information and documentation regarding any relevant disciplinary review or measures up to the date of the incident and after the incident for any discipline arising from the incident within 60 days;
iii.) the Plaintiffs shall provide written questions for Ms. Milne to Defendant’s counsel who will make best efforts to locate Ms. Milne and if successful, forward the questions and ask her to answer them;
iv.) the Defendant shall produce an index of all Standing Orders in effect during Kishon’s incarceration at Maplehurst together with copies of the Standing Orders related to his admission, all subject to the Confidentiality Terms within 60 days;
v.) the Defendant’s motion with respect to the information sought regarding Alex is dismissed.
[29] If the parties are unable to agree on the costs of these motions, they may file written costs submissions not to exceed 3 pages (excluding costs outlines) with me through the Masters Administration Office on or before July 31, 2018.
Released: May 25, 2018
Master M.P. McGraw