Court File and Parties

COURT FILE NO.: 94301/15 DATE: 20180622 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Catherine Cormack-Terrelonge, Plaintiff AND: Isaac Zisckind as the Litigation Guardian of the Estate of the Late Mohamed M. Fahmy and Kawartha Orthopaedic Services Ltd., Defendants

BEFORE: Sosna J.

COUNSEL: Thomas R. Su, for the Plaintiff James E. Hirsh, for the Defendants

HEARD: March 23, 2018

Endorsement

[1] The moving party defendants seek an order dismissing the plaintiff’s action with costs.

[2] In the alternative the defendants seek:

(a) An order requiring the plaintiff to answer all questions undertaken at her examination for discoveries held in August and September 2017 within 30 days of this motion;

(b) An order requiring the plaintiff to answer the questions refused at her examination for discovery on the above dates within 30 days of this motion.

[3] Costs of this motion on a substantial indemnity basis.

Background Facts

[4] This action arises out of a motor vehicle accident which occurred on January 5, 2014, in Peterborough, Ontario. A motor vehicle operated by Catherine Cormack-Terrelogne (the plaintiff) collided with a motor vehicle owned by Kawartha Orthopaedic Services Ltd. and operated by Mohamed M. Fahmy (the defendants).

[5] The defendant, Mohamed M. Fahmy, died in August 2016. The plaintiff obtained an order to continue the action by appointment of a litigation administrator.

[6] The plaintiff was examined for discovery on August 9, and September 13, 2017.

[7] On August 9, 2017, the plaintiff gave evidence that she was involved in three motor vehicle accidents prior to the 2014 accident. The three accidents occurred on April 1, 2010, June 26, 2010, and September 13, 2012. The plaintiff advised that she had sustained injuries in all three preceding accidents and had commenced litigation in relation to each accident to recover for damages allegedly sustained in each accident.

[8] The plaintiff undertook to produce statements of claim and medical documentation for the actions commenced in relation to the three previous actions. The undertakings have been fulfilled.

[9] Counsel for the plaintiff took under advisement whether to provide authorizations to obtain transcripts of the examinations for discovery of the plaintiff in the actions related to the three preceding accidents. The plaintiff has since refused to produce the authorizations. It is that refusal that is the subject of the defendants’ motion.

Position of the Defendants

[10] The defendants acknowledge the deemed undertaking rule, Rule 30.1.01(3), which provides as follows:

All parties and their lawyers are deemed to undertake not to use the evidence or information to which this rule applies for any purposes other than those of the proceedings in which the evidence obtained.

[11] The defendants contend that there is an exception to the deemed undertaking rule as set out in Rule 30.1.01(6).

Subrule (3) does not prohibit use of evidence obtained in one preceding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.

[12] The defendants submit that production of the transcripts from the examinations for discovery of the plaintiff conducted in Action CV-12-449448 (the April and June 2010 accidents) and Action 89822-14 (the September 13, 2012 accident) are necessary to assess the extent to which the plaintiff’s current complaints overlap with her injury complaints prior to the January 5, 2014 accident.

The Position of the Plaintiff

[13] The plaintiff submits that the defendants have not provided sufficient grounds to support an exception to the deemed undertaking rule as it relates to the prior transcripts. The refusals at discovery are properly based on grounds of relevance and proportionality.

[14] The plaintiff argues that the defendants are engaging in a fishing expedition. An Order compelling the plaintiff to answer the refusals would cause severe prejudice to the plaintiff.

[15] For these reasons the plaintiff submits that this court not exercise its discretion to exempt the prior transcripts from the deemed undertaking rule and dismiss the defendant’s motion.

[16] As to the motion that the plaintiff’s action be dismissed with costs, the plaintiff submits its right to recover damages arising from this action would be severely prejudiced, if the Order was granted.

Analysis and Findings

[17] There is no issue that the prior transcripts are caught by the deemed undertaking rule. As such, the Court has an oversight role and it is necessary that the parties seek direction from the Court as to what steps are required in their particular circumstances. (SC v. NS, 2017 ONSC 353 at paras 4 and 91).

[18] The Court must be satisfied that the interests of justice must outweigh any prejudice in order to determine whether an exception to the deemed undertaking rule be found. Rule 30.1.01 of the Rules state in part:

(8) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed the evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.

[19] At her examination for discovery on August 9, 2017, the plaintiff was not clearly or definitively able to describe whether the injury she sustained in the 2010 motor vehicle accidents had resolved by the time of the September 13, 2012 motor vehicle accident. The plaintiff was similarly unclear when questioned about the resolution of her injuries sustained in the September 13, 2012 accident.

[20] Rule 29.2.03 of the Rules expressly provides for proportionality with respect to examination for discovery and production of documents, including whether the information sought is readily available other documentary sources.

29.2.03 (1) In making a determination as to whether a party or other person must answer a question produce a document, the court shall consider whether,

(e) the information or document is readily available to party requesting it from another source. O Reg. 438/08, s. 25.

[21] In applying the rule, a common sense approach as to the production of relevant and necessary documents is required to ensure that the case is ultimately fairly adjudicated at trial. (Dugan v. Lakeridge, 2017 ONSC 1474, at para35.).

[22] The plaintiff argues that it has complied with all undertakings and has provided voluminous and extensive documentary evidence, including clinical reports for the defendant’s review. Compelling production of prior transcripts does not comport with a common sense approach for the production of documents. The plaintiff submits that in accordance with relevancy and proportionality rules pertaining to undertakings and refusals, the prior transcripts are not to be produced.

[23] In Riley v. Taar 2010 ONSC 2122, the plaintiff was involved in a motor vehicle accident, suffered injuries and brought an action. The plaintiff was also involved in a previous motor vehicle accident and suffered personal injuries. It appeared that the plaintiff may have sustained overlapping injuries with respect to the two motor vehicle accidents.

[24] The defendant brought a motion under Rule 30.1.01(6) for the court to order production of the examinations for discovery for the previous action to assist in their inquiries as part of the discovery process. The plaintiff cited his privacy rights as well as the deemed undertaking rule, Rule 30.1.01(3). The plaintiff had produced all of his medical records. Mulligan J. held at para. 8:

…..In my view the limited exception under the undertaking rule applies here. The defendants upon reviewing previous examination for discovery may use them to impeach the testimony of the plaintiff in this proceeding if so warranted. However, the defendants will not be able to do so unless these discoveries are produced…..

[25] The statements of claim in Action CV-12-449448 in relation to the April 1, 2010, June 26, 2010 accidents, Action 89822-14 in relation to the September 13, 2012 accident, and the present action all claim, amongst other things, serious and permanent injuries to the head, jaw, hands, shoulders, neck, psychological mental and cognitive injuries, depression, headaches and loss of income.

[26] Given the evidence of the plaintiff at discovery, concerning the injuries sustained in the 2010, 2012, and 2014 motor vehicle accidents, the resolution if any of those injuries, even with the benefit of documentary medical production provided, is not clear. There is no credible evidence to suggest that the injuries sustained in the previous actions resolved prior to the motor vehicle accident on January 5, 2014.

[27] I find production of the transcripts from the examinations for discovery the plaintiff conducted in Action CV-12-449448 and Action 8982-14, is necessary to assess the extent to which the plaintiff’s current complaints overlap with her injury complaints prior to the January 5, 2014 accident. The production of these discoveries is not a fishing expedition as submitted by the plaintiff.

[28] The result is ordered that:

1. the plaintiff produce examinations for discovery with respect to Action CV-12-449448 and Action 8982-14 within 30 days of the release of this endorsement;
2. the defendants pay the cost of production of the transcripts; and
3. the examinations for discovery may not be used for any collateral purpose but their use should be confined to the opportunity to impeach the testimony of plaintiff in these proceedings.

[29] Both oral and written submissions in the present matter were focused on the issue of production of the previous transcripts. The defendants’ motion that the plaintiff’s action be dismissed because of the plaintiff’s refusals and non-compliance with undertakings; those undertakings now fulfilled, were not addressed.

[30] In the absence of evidence and submissions, the defendants’ motion for dismissal of the plaintiff’s action is dismissed.

Costs

[31] If the parties are unable to agree on costs, they may make written submissions not to exceed three pages. First, counsel for the defendants shall deliver submissions by July 27, 2018. Then within 15 days of receipt of those submissions, counsel for the plaintiff shall deliver submissions. Within five days of receipt of those submissions, counsel for the defendant may deliver a brief reply. All submissions, with proof of service, are to be filed with the trial-coordinator at Oshawa. The trial-coordinator, may accept a party’s submissions although not on of time, with the consent of the other party. When the filing of submissions is complete, the trial-coordinator shall forward all of them to me, as one package, for consideration.

The Honourable Mr. Justice Alexander Sosna Date: June 22, 2018