Court File and Parties

COURT FILE NOS.: CV-14-4687 and CV-15-3609 DATE: 2018 08 14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NAVNEET SIDHU, PRABHJIT SIDHU and AMARJIT SIDHU v. GURJAP SINGH TOOR, GURPREET KAUR TOOR, COSECO INSURANCE COMPANY, MARK D. VANSLYKE and KEENA TRUCK LEASING AND TRANSPORT LIMITED

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KULJINDER GILL, Estate Trustee on behalf of the late KHARMVEER GILL, KULJINDER GILL, HARTEJ GILL, GURJOT GILL, GURVEEN GILL, HARBHAJAN GILL, MANJIT BASSI and RAVINDER BASSI v. GURJAP SINGH TOOR, GURPREET KAUR TOOR, MARK D. VANSLYKE and KEENA TRUCK LEASING AND TRANSPORT LIMITED and THE WAWANESA THE MUTUAL INSURANCE COMPANY

BEFORE: COROZA J.

COUNSEL: Tal Letourneau for the moving party, The Wawanesa Mutual Insurance Company Megan Levy-McLaughlin for the moving party, Coseco Insurance Company Samantha Higgins for the responding party, Gurpreet Toor No one appearing for Gurjap Toor

HEARD: May 15, 2018

ENDORSEMENT

Overview

[1] On May 31, 2014, Gurjap Toor was driving a car owned by his mother, Gurpreet Toor. Kharmveer Gill, Navneet Sidhu and Meshan Jeanathan were passengers.

[2] Gurjap allegedly made a U-turn and was struck by a truck. Regrettably, the accident killed Kharmveer. Kharmveer's estate and family members have commenced an action against Gurjap and his mother, Gurpreet, claiming damages arising out of the accident. I will refer to this action as the "Gill action" (CV-15-3609-00).

[3] The Plaintiffs in the Gill action are insured by The Wawanesa Mutual Insurance Company (“Wawanesa”). Wawanesa has denied coverage to the Gill plaintiffs as a result of the accident and is a named Defendant.

[4] Navneet Sidhu was also injured as a result of the accident. Navneet and other Plaintiffs have also commenced an action claiming damages against Gurjap and his mother, Gurpreet. I will refer to this action as the "Sidhu action" (CV-14-4687-00). The Plaintiffs in the Sidhu action are insured by Coseco Insurance Company (“Coseco”). Coseco has denied coverage to the Sidhu plaintiffs and is a named Defendant.

[5] As of October 19, 2016, Gurjap has been noted in default for failing to file a defence in both actions.

[6] Gurpreet has defended the actions and claims that she is not liable for damages because Gurjap did not have consent to operate the car at the time of the accident.

The Two Motions Before This Court

[7] Both Gurpreet and Gurjap were examined for discovery on July 14, 2016. During the examinations, a number of refusals and undertakings were made by counsel on their behalf. Wawanesa and Coseco brought motions before this court requesting that certain refusals and undertakings be answered. Although they are separate actions, Lemay J. has made an order that both actions be tried together. Therefore, I heard both motions together.

[8] In the Gill action, Wawanesa seeks the following orders:

1. Gurpreet shall provide answers to her refusals made at her examination or provide evidence of best efforts thereof within 30 days.
2. Gurpreet's insurance broker, All-Risks Insurance Brokers Ltd.), shall produce a copy of its complete file in relation to all vehicles in the Toor household, including the ownership and drivers of the vehicles.
3. Gurjap shall provide answers to his outstanding undertakings within 30 days.

[9] In the Sidhu action, Coseco seeks the following orders:

1. Gurpreet shall provide answers to her undertakings made at her examination for discovery within 30 days.
2. Gurpreet shall provide answers to questions refused at her examination within 30 days.
3. Gurjap shall provide answers to his undertakings given at his examination within 30 days.
4. Gurjap shall provide answers to questions refused at his examination within 30 days.

Gurjap Has Not Appeared

[10] Although Gurjap was represented by counsel at his examination, he has not complied with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, by filing a defence to the actions. It appears that he is now a self-represented party. To date, Gurjap has not responded to correspondence sent by counsel for Coseco and Wawanesa.

[11] I am satisfied that Gurjap was properly served with these motions. He did not appear. Therefore, I grant the relief sought by Wawanesa and Coseco with respect to Gurjap.

Gurpreet is Opposed to the Motions

[12] Gurpreet is represented by counsel. Gurpreet is opposed to the relief sought by Wawanesa and Coseco.

The Law

[13] My colleague Conlan J. in Yim et al. v. Song et al., 2015 ONSC 7605, comprehensively reviewed the applicable principles that I must consider on these motions. I repeat some of the more important points of his analysis for convenience:

• “Undertakings given at an examination for discovery, including questions taken under advisement, must be answered within 60 days, failing which the party who gave the undertaking or took the question under advisement is deemed to have failed to answer: subrule 37.01(1) of the Rules of Civil Procedure” (para. 21).
• “An undertaking given at an examination for discovery is a promise. It binds the party that gave it. It must be honoured. It is not subject to negotiation” (para. 23).
• “At an examination for discovery, questions are permitted on anything that is ‘relevant to any matter in issue’: Rule 31.06” (para. 24).
• The scope of discovery is defined by the pleadings. “Discovery questions must be relevant and material to the issues in the case as defined by the pleadings” (para. 25).
• “Discovery is not a ‘free-for-all’ or a fishing expedition. It is not an opportunity for counsel to learn the case as s/he goes and ask any and all questions in the hope of stumbling upon something that will help his or her client” (para. 26).
• “A certain degree of proportionality must come into play in determining whether it is proper for a party to refuse to answer a question or refuse to give an undertaking at an examination for discovery” (para. 27).

[14] In his decision, Conlan J. cited the following comments of Aston J. in Kochar v. Kochar, 2015 ONSC 6650, 71 R.F.L. (7th) 183, at para. 4:

[4] One of the major reforms that followed the subsequent work of the Task Force on the Discovery Process in Ontario was an amendment to the Rules of Civil Procedure emphasizing the "proportionality principle" as an overarching and general operative element in those rules. The proportionality principle was already enshrined in the Family Law Rules by Rule 2. Rule 2 encourages courts to downsize the procedure in any given case so long as the court is still able to justly deal with the issue raised. Comprehensive or exhaustive oral examination or production of documents may make access to justice unnecessarily expensive or protracted. Merely proving the relevance of a document may be insufficient to warrant production. To order production the court must be satisfied that it would be "unfair" to the party seeking production to go on with the case without the document or information. In essence the document must be found to be important to a party's case, especially in relation to the amount at stake. [Emphasis added.]

[15] I also adopt Aston J.'s comments in that case.

Analysis

[16] The Plaintiffs in both actions have alleged that Gurpreet is responsible for the negligence of Gurjap. Wawanesa and Coseco adopt that position. Both parties submit that, although the Toyota was registered in Gurpreet's name, Gurjap had her consent to use this car. Wawanesa also specifically argues that when Gurjap obtained his driver’s licence, Gurpreet and her husband bought the Toyota for their son.

[17] During oral argument, counsel for Wawanesa and Coseco made a number of specific requests. They argue that these requests are proper because the live issue in both actions is whether Gurpreet gave her son permission to drive the Toyota on the night of the accident. Gurpreet’s position is that she did not give her son permission and that he took the Toyota without her consent.

The Joint Requests by Wawanesa and Coseco

First Request: Gurpreet shall produce the paperwork from the purchase of the Toyota (including paperwork that would show the safety checks).

[18] The Toyota was purchased by the Toor family about six months before the accident.

[19] Wawanesa and Coseco argue that the paperwork for the purchase of the Toyota will provide direct or circumstantial evidence that the Toors purchased this car for Gurjap. Counsel argue that if there is only a brief period of time separating the date the Toyota was purchased and the issuance of a driver’s license for Gurjap, then this will provide evidence that the car was bought for Gurjap to drive.

[20] I am not persuaded by this argument. While the paperwork may assist in determining ownership of the Toyota, the issues of regular use of the Toyota and ownership are distinct.

[21] The ownership of the Toyota is not a live issue because it is conceded that the owner is Gurpreet. It is also conceded that when the Toyota was purchased, Gurjap was listed as an occasional driver in the car insurance underwriting documents. In my view, the paperwork relating to the purchase of that car has no real probative value about Gurjap's use of that car.

[22] In any event, Gurpreet testified at her examination that she purchased the car and that her son started driving the Toyota as soon as it was purchased. In light of this evidence, it seems to me that the timing of the purchase of the Toyota and the issuance of a driver’s licence for Gurjap is irrelevant.

[23] Wawanesa and Coseco argue that the paperwork relating to the purchase would also include the safety record of the Toyota. Both parties argue that this is relevant because the mechanical fitness of the Toyota is specifically pleaded in the Plaintiffs’ statement of claims in both actions.

[24] In my view, there is very little evidence that the safety record has any relevance to this action. As counsel for Gurpreet points out, there is nothing in the police report of the accident that suggests that the mechanical fitness of the Toyota contributed to the accident. This appears to be a case of alleged driver error. It is alleged that the accident was caused when the Toyota made an ill-advised U-turn and was struck by a truck. There is no evidence on this record that the mechanical condition of the Toyota caused or played any part in the collision.

[25] I decline to make the orders sought by both parties in relation to the paperwork from the purchase of the Toyota, including paperwork regarding safety checks.

Second Request: Gurpreet shall produce the underwriting documentation for all vehicles in the household from two years pre-accident onwards.

[26] Wawanesa and Coseco submit that the underwriting documentation for all cars in the Toor household two years before the accident is relevant. I will briefly summarize Gurpreet's evidence at her examination to place this joint request in the proper context.

[27] According to Gurpreet, the Toyota was purchased six months before the accident from a niece in the United States. At the time of purchase, Gurjap was added as an occasional driver on the insurance documents for the Toyota. Gurpreet explained that her husband had added Gurjap to the insurance by making a telephone call.

[28] The Toors also owned a Mercedes sports utility vehicle and a pickup truck. Gurpreet explained that the pickup truck was used by her husband as a work truck. When her husband was not using the work truck, he used the Mercedes SUV. Prior to the purchase of the Toyota, Gurpreet had driven the SUV. Once the Toyota was purchased, she used the Toyota on a regular basis.

[29] Gurpreet testified that after Gurjap obtained his licence, the use patterns of all three cars did not change in their household.

[30] Counsel for Wawanesa and Coseco argue that the underwriting documentation could support Wawanesa’s position that the Toyota was purchased for Gurjap's use.

[31] Counsel for Gurpreet submits that the documentation has already been delivered. On May 29, 2017, counsel for Gurpreet provided the “Declaration Pages” of Gurpreet's motor vehicle insurance policy, which lists the 2006 Toyota and Gurjap as an occasional driver.

[32] In my view, the request for underwriting insurance information for all cars in the Toor household is overly broad. I am not persuaded that underwriting information in relation to the Mercedes SUV and the pickup truck is relevant. Those two vehicles were not involved in the accident and there is no evidence connecting those two vehicles to the actions.

[33] I do, however, take a different view of the Toyota underwriting documents. I am persuaded that these documents are relevant. If there are documents that exist in addition to the Declaration Pages that have already been provided to counsel, then it is my view that these additional documents should be disclosed.

[34] I am satisfied that underwriting documentation may reveal the intentions of Gurpreet and her husband when the Toyota was purchased. For example, there may be information communicated to insurers about the use of the Toyota that is not reflected in the Declaration Pages that have been disclosed. This information may be documented and could provide evidence to test Gurpreet's assertion that, after Gurjap obtained his license, the use patterns of all three cars did not change in the household, and that she was the one who drove the Toyota on a regular basis.

[35] Therefore, I order that Gurpreet produce underwriting documentation for the Toyota two years pre-accident onwards.

Third Request: Gurpreet shall provide contact information for Jaspreet Kaur or make best efforts to obtain the contact information.

[36] At the time of the accident, Gurpreet testified that Jaspreet Kaur lived with the family in their home. Jaspreet is the daughter of her cousin. Gurpreet testified at the time of her examination that Jaspreet had moved out of their home in January, 2015. Gurpreet testified that she did not have any contact information for Jaspreet and did not know where she lived.

[37] Wawanesa and Coseco submit that because Jaspreet lived in the home, she would have information about the use of the Toyota. Therefore, both parties request that Gurpreet provided them with contact information or make best efforts to obtain her contact information.

[38] I decline to make the order requested for two reasons. First, the submissions of both parties is a bald assertion that Jaspreet has relevant information to provide to the trier about the use of the Toyota. There were no questions asked at the examination to provide any foundation for this assertion. Simply asserting that Jaspreet would have knowledge of the use of Toyota because she lived in the house is speculation.

[39] Second, Gurpreet has already been asked about contact information for Jaspreet during her examination. Gurpreet testified that she does not know where Jaspreet lives and that she has maintained no contact with her since she moved out of the home. I agree with counsel for Gurpreet that the question has been asked and answered.

Fourth Request: Gurpreet should disclose if she asked her son how he got the keys to the Toyota after May 31, 2014.

[40] Gurpreet's position is that on the day of the accident, Gurjap took the Toyota without her consent. During her examination, she testified that she asked Gurjap how he obtained the keys for the Toyota when he was in the hospital. According to Gurpreet, Gurjap never answered the question and he has never advised her how he obtained the keys. Gurpreet did not press the issue at the hospital because Gurjap was very emotional.

[41] Wawanesa and Coseco submit that Gurpreet should disclose if she has followed up on the issue by asking Gurjap about the keys. As I understand their argument, if Gurpreet did not ask Gurjap follow-up questions about the accident, it could speak to the consent issue.

[42] I agree with counsel for Wawanesa and Coseco.

[43] In my view, any follow-up questioning by Gurpreet, standing on its own, has some relevance to the chronology and narrative of Gurpreet's position that Gurjap took the Toyota without her consent on the night of the accident.

[44] Gurpreet’s position is that the car was taken without her consent. The car was involved in a tragic accident. As a matter of logic and human experience, any attempt by Gurpreet to confront her son about how he took the Toyota after the accident is relevant to whether she gave him consent to drive the car. If Gurpreet confronted her son about the taking of the Toyota, this could support her position that he did not have permission to drive the car. If she did nothing, in combination with other evidence, it will be open for Wawanesa and Coseco to ask the trier of fact to draw an inference that she did not ask any questions because Gurjap did not need her permission to drive the car. This goes to an issue that is directly relevant at trial (consent) and is not solely relevant to collateral issues that deal purely with "credibility".

[45] I disagree with Gurpreet's position that she has already testified about this issue. I acknowledge that she has already testified that, to date, Gurjap has not provided her with an answer about the keys. However, counsel for Wawanesa and Coseco are entitled to ask Gurpreet about her actions. Therefore, I order that counsel for both parties may ask questions of Gurpreet as to whether Gurpreet ever spoke to her son following the accident as to how he obtained the keys on the night of the accident.

Additional Request Made by Wawanesa

Fifth Request: Gurpreet shall provide the file for the insurance broker's file (All-Risks Insurance Brokers Ltd.).

[46] As mentioned above, on May 29, 2017, counsel for Gurpreet produced the Statutory Declaration Pages to counsel for both parties. The documents reveal that Gurpreet’s insurance broker is All-Risks Insurance Brokers Ltd.

[47] For the same reasons that I have set out above, in my view, the entire file should be disclosed. Again, I agree with counsel for both parties that there may be detailed notes or other documents kept by All-Risks Insurance Brokers Ltd. in their dealings with the Toors that may reveal the intent of the Toors in relation to the Toyota and Gurjap as a driver. It should be noted, however, that the production of the file is restricted to those notes and documents that deal with the Toyota.

Additional Request Made by Coseco

Sixth Request: Gurpreet shall provide a further copy of the property damage estimate and a signed authorization for the release of the police file.

[48] During oral argument, counsel for Coseco advised that her firm inadvertently lost correspondence sent to them by counsel for Gurpreet on February 9, 2018 that dealt with these two undertakings. Counsel agreed to work out the outstanding undertakings and jointly requested that I make an order that Gurpreet provide a copy of the property damage estimate and a signed authorization consenting to the release of the police file that was opened as a result of the accident.

Conclusion

[49] The following orders shall issue:

1. Gurjap shall answer his undertakings and refusals as set out in the Undertakings Chart contained at Exhibit E of David Thompson's affidavit (Wawanesa) sworn on April 20, 2018 and Tabs 5 and 6 of Coseco's motion record within 60 days;
2. Gurpreet shall attend before an official examiner at her own expense to answer the questions within 60 days at a time that is mutually agreeable by the parties. At the further examination, I order that counsel for both parties may ask questions of Gurpreet as to whether Gurpreet ever spoke to her son following the accident as to how he obtained the keys on the night of the accident. The parties may also wish to deal with discovery through alternative means by reaching a mutually agreeable solution.
3. Gurpreet, at her own expense, shall provide a copy of All-Risks Insurance Brokers Ltd.’s file in relation to the Toyota Corolla within 60 days.
4. Gurpreet shall provide to counsel for Coseco a copy of the property damage estimate and a signed authorization in relation to the police file opened as a result of the accident.

Costs

[50] I would urge the parties to agree on costs. If the parties cannot agree, they may file written submissions to address costs. Submissions are not to exceed three pages excluding bills of costs and cases. Wawanesa and Coseco shall serve and file their submissions within ten days of this endorsement. Thereafter, counsel for Gurpreet shall serve and file her costs submissions within ten days of receipt of costs submissions made by Wawanesa and Coseco. There will be no reply permitted.

Coroza J. DATE: August 14, 2018