Court File and Parties

COURT FILE NO.: CV-17-578059-00CP DATE: 20180713 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robin Cirillo, Plaintiff (Responding party) – AND – Her Majesty The Queen In Right Of Ontario, Defendant (Moving Party)

BEFORE: E.M. Morgan J.

COUNSEL: Jody Brown, for the Plaintiff Jeffrey Costain, for the Defendant

HEARD: July 13, 2018

Endorsement

[1] This motion arises out of cross-examinations conducted on affidavits filed by the Plaintiff in support of her upcoming motion for certification of the proposed class action. One of the affidavits is that of the Plaintiff herself, and the other is that of her proposed expert witness, Dr. Nicole Myers.

[2] The Defendant has pursued a similar approach with both affiants. It insists on strict adherence to the Rules of Civil Procedure and the law of evidence, but is overly enthusiastic in that approach. As a consequence, it has asked for too much.

[3] The underlying claim is brought on behalf of all persons in Ontario who, since January 2000, were arrested and detained for more than 24 hours prior to any bail hearing being available. The Statement of Claim alleges that the Defendant breached duties of care and fiduciary duties to the Plaintiff and putative class members. A motion for certification is to be held in two-and-a-half months’ time.

[4] In her affidavit, the Plaintiff stated in a single sentence that, “I would not have the financial means to bring this action on my own.” That short statement prompted counsel for the Defendant to seek in cross-examination 5 years of her tax returns, notices of assessment, details of all other sources of funds available to her, and details of any inquiries she made of “other persons, family members or friends” and full particulars of any financial responses received.

[5] Counsel for the Defendant submits that this line of inquiry is not only directly related to the Plaintiff’s statement in her affidavit, but is relevant to the question under s. 5(d) of the Class Proceedings Act (“CPA”) of whether a class action is the preferable procedure. In my view, it is not relevant to that question. A wealthy person and a poor person have the same rights. In any case, representative Plaintiffs are just that – representatives of the class. Their personal financial circumstances are not part of the issue on certification, provided that they have a valid cause of action, can fairly and adequately represent the interests of the class, and generally meet the other requirements of s. 5 of the CPA.

[6] As it turns out, the Plaintiff has advised the Defendant of her latest annual income and the amount of savings she has in the bank. That is more than enough for the Defendant’s needs. It was unnecessary for the Plaintiff to even mention her state of finances in her affidavit, but having done so the Defendant sought to seize the opportunity to dig as deep as possible. No more financial information need be produced by the Plaintiff.

[7] The Plaintiff in her affidavit described the circumstances of her arrest, detention, transportation, bail hearings, and release. This is all relevant to the claim and to the proposed common issues. She has provided the Defendant with the criminal information documenting her court appearances, as well as certified transcripts and audio recordings of her two court appearances.

[8] Again, in a single line of her affidavit the Plaintiff stated that, “I am still troubled by my two nights in jail.” Counsel for the Defendant took the opportunity presented by that statement to cross-examine her on her state of mental health, whether she has ever undergone psychotherapy, any diagnosis she has had, etc. The Defendant now seeks to have her produce her personal medical records detailing any psychotherapy she has undergone.

[9] Counsel for the Defendant has not made any argument here about the relevance of the Plaintiff’s medical records to the certification issues in s. 5 of the CPA. Again, the Defendant relies on the fact that the Plaintiff raised it herself in her affidavit, and thereby “put in issue” her state of mental health. I disagree. To state that one is troubled by being arrested and detained is to state the obvious; it “puts in issue” nothing that the Defendant need answer and should open up no new line of inquiry. There is nothing in the s. 5 criteria for certification that would require the Defendant to know the Plaintiff’s medical history.

[10] I note in passing that Defendant’s counsel has identified cases in which a Plaintiff’s medical records were indeed ordered produced on a pending motion. As Plaintiff’s counsel points out, however, those were medical cases where the Plaintiff was obliged to establish that he or she had the medical condition in issue. The present case is about bail hearings, and the Plaintiff has indeed produced evidence that she underwent the arrest, detention, and bail procedure giving rise to the cause of action. This is not a medical case, and it does not matter whether the representative Plaintiff is healthy or ailing. The Plaintiff need not produce her medical records on this motion.

[11] The Plaintiff’s proposed expert is Dr. Nicole Myers, an academic who has done studies of bail delays and the causes thereof. Dr. Myers has produced her report and her C.V. along with her affidavit. She has also produced the database used in her study of this subject, consisting of an Excel spread sheet with over 5,000 lines of data. She has further produced all of the typed qualitative notes in her possession that she relied on and referenced in her expert report.

[12] Defendant’s counsel seeks copies of handwritten notes that Dr. Myers made observing bail hearings from 2010 to 2013. These notes were not used by Dr. Myers in her report and do not form the basis of any of her opinions or conclusions in that report. They are draft observational notes from a personal notebook that she has never used for either the current expert report or any academic study or publication. They do not form the basis for the extensive database which Dr. Myers has been produced to the Defendant.

[13] Moreover, an expert under cross-examination on an affidavit on a pending motion is not subject to general, freestanding and exploratory discovery. As indicated, Dr. Myers’ notebook materials may be in her possession, and they may be part of her general observations in this field, but they were not used in her report. They certainly do not come anywhere close to being “the foundation information” necessary for understanding her report: see Conceicao Farms Inc. v. Zeneca Corp., at para 14. The handwritten notes need not be produced.

[14] In addition, the Defendant seeks copies of several draft publications that Dr. Myers lists in her C.V. as works in progress. Again, these studies do not form the basis of her expert report and are not referenced therein. They simply happen to be listed on her C.V. as other matters that she is currently working on.

[15] Counsel for the Plaintiff advises that Dr. Myers has produced to counsel for the Defendant many of her past publications, including her PhD thesis. Defendant’s counsel cross-examined her on her scholarly productions at length; the book of exhibits from her cross-examination is some 500 pages long.

[16] The Court of Appeal has held that drafts of expert reports are not subject to production: Moore v. Getahun, 2015 ONCA 55. If draft copies of the very report in issue need not be produced, then it is difficult to see how draft copies of unrelated academic papers by the expert need be produced. Counsel for the Defendant has provided no rationale or argument for wanting these draft papers other than to claim, again, that the witness opened the issue herself by including them in her C.V. Dr. Myers need not produce the draft papers sought by the Defendant.

[17] As a final matter, at cross-examination counsel for the Defendant presented Dr. Myers with another 500-or-so pages of academic publications by other scholars and asked her if she agreed with those writings. The materials were not provided in advance, and so Dr. Myers was asked her views on the spur of the moment. Counsel for the Plaintiff understandably did not permit her to answer that series of questions.

[18] Plaintiff’s counsel has indicated that he would not object to Dr. Myers providing her responses to these questions in writing now that she has had time to read and digest the material, but he indicated that he would be concerned that the responses might lead to a request for yet a further appearance and more discovery-like cross-examination. He explained that Dr. Myers has already had to travel here from British Columbia once in order to be surprised by this voluminous volume of material not shown to her in advance, and that it would be onerous to have to go through that again.

[19] As Perell J. has stated in Parker v. Pfizer Canada Inc., 2012 ONSC 1652, the guiding principle when it comes to production in this context is fairness. The Defendant must have all the information it needs to meet the case presented by the Plaintiff, and the Plaintiff is not permitted to hold back information or documentation that the Defendant will require in making its case. The Defendant does not need Dr. Myers’ opinions about scholarly works by other academics in order to address the issues in her expert report and on the upcoming certification motion. What they ask is a laborious chore that is disproportionate to any relevance it may have in these proceedings.

[20] The Plaintiff and her proposed expert have not attempted to hide anything from the Defendant in these cross-examinations. They have produced all of the documentation that is “proportionate to the needs of the certification motion and what is necessary to inform the certification hearing”: Daniells v. McLellan, 2016 ONSC 5958. If the courts were to require affiants and experts to produce the documentation and information sought by the Defendant here, it would not contribute to the just resolution of motions but rather would “frustrate the timely and cost-effective adjudication of civil disputes”: Moore v. Getahun, at para 65.

[21] The Defendant’s motion is dismissed.

[22] Plaintiff’s counsel seeks costs in the total amount of $3,244.69. That is almost identical to the $3,330.00 that Defendant’s counsel would seek. Both are reasonably modest, and neither would take the other by surprise: Rule 57.01(1)(0.b) of the Rules of Civil Procedure.

[23] The Defendant shall pay the Plaintiff $3,244.69 in costs, inclusive of all fees, disbursements, and HST.

Morgan J. Date: July 13, 2018