Court File and Parties

Court File No.: 4393/11 Date: 2018/08/27 Superior Court of Justice - Ontario

Re: DAVID SMITH and SAMANTHA SMITH, Plaintiffs And: J.H. GALLANT LIMITED, CANADIAN TIRE CORPORATION, LIMITED REXON INDUSTRIAL CORP., REXON INDUSTRIAL CORP., LTD. And POWER TOOL SPECIALISTS, INC., Defendants

Before: Justice I.F. Leach

Counsel: Louis J. Crowley, for the plaintiffs Teri MacDonald, for the defendants

Heard: June 6, 2018

Endorsement

Background and overview

[1] By way of general background and litigation history:

• This product liability litigation has its origins in an incident which is said to have occurred on or about June 14, 2009, when Mr Smith allegedly injured his left hand and fingers while using a table saw designed, manufactured, distributed and sold by the defendants, acting in various capacities.
• On June 13, 2011, Mr Smith and his spouse issued a statement of claim commencing this action, alleging that the incident and resulting damages were caused by various failings and breached duties of the defendants in relation to the table saw. In the pleading, Mr Smith seeks general damages of $1 million and special damages of $500,000, (including loss of employment income and loss of competitive position), and Mrs Smith seeks damages of $500,000 pursuant to the Family Law Act, R.S.O. 1990, c.F.3. Those claims are supplemented by requests for interest and costs.
• The defendants other than J.H. Gallant Limited delivered their statement of defence on or about April 17, 2012.
• On or about April 19, 2012, the defendant J.H. Gallant Limited delivered its statement of defence, formally confirming that it was being represented by the same defence counsel retained by the other defendants.
• On July 9, 2015, plaintiff counsel conducted an oral discovery examination of a Canadian Tire representative, whose evidence apparently was to bind each defendant. On the same day, defence counsel conducted an oral discovery examination of Mr Smith.
• On September 13, 2015, defence counsel conducted an oral discovery examination of Mrs Smith.
• On or about December 24, 2015, the plaintiffs then served and filed a trial record, effectively setting the matter down for trial pursuant to Rule 48.02 of the Rules of Civil Procedure. In due course, the matter was assigned a pretrial hearing date of May 17, 2018. The parties subsequently agreed upon having the matter placed on the trial list commencing September 10, 2018.
• Each side, nevertheless, continued to make further preparations, (including the retention of experts and the making of associated arrangements for assessments and report preparation/service), and to follow up on outstanding matters, (including undertakings and refusals). That in turn led to disputes about the extent to which each side was extending appropriate co-operation and/or compliance.
• On or about April 9, 2018, the defendants served a motion record, initially returnable on April 17, 2018, seeking orders requiring Mr Smith to attend a number of defence medical examinations and assessments, and abridging the time for serving corresponding defence expert reports. However, return of the motion on April 17, 2018, was simply a prelude and necessary procedural step towards having the defendants’ motion adjourned to a special appointment hearing on June 6, 2018. To obtain that special appointment hearing, the parties filed, in accordance with the regional practice direction, a certificate of readiness incorporating a timetable of all steps remaining to ready the motion for hearing, and associated deadlines to ensure the matter would be ready to proceed as contemplated on June 6, 2018.
• Prior to the hearing date of June 6, 2018, there nevertheless apparently were deviations from the contemplated and set timetable on both sides. For example:
  • Although the defendants were to serve and file any further motion record by April 27, 2018, they filed a further amended record that day, and another amended record on May 31, 2018. The latter amendments included expansion of the notice of motion prayer for relief to include orders requiring answering of undertakings and refusals, and an order compelling Mr Smith to attend for a continued and/or further oral discovery examination.
  • Although the defendants were to serve and file their factum by April 27, 2018, their factum filed that date was supplemented by a further factum served on or about May 30, 2018.
  • Although the plaintiffs were to serve and file any responding motion record by May 14, 2018, (and the timetable said nothing about any cross-motion), they delivered a cross-motion record on or about June 1, 2018, and a supplementary cross-motion record on or about June 5, 2018.
  • Although the plaintiffs were to serve and file a factum by May 28, 2018, it seems none was delivered.
• On May 16, 2018, Justice Grace, (the Local Administrative Justice here in London), cancelled the pretrial hearing scheduled for the following day, apparently because the outstanding examination, assessment and discovery issues effectively would prevent a meaningful pretrial in the circumstances. Counsel were instructed to attend court on May 18, 2018, at which time the parties apparently agreed and confirmed that the matter was not ready for trial. It accordingly was struck from the trial list on consent, on the understanding that new dates for the pretrial and trial could be set in consultation with the trial co-ordinator, once the matter was ready to proceed.

[2] Before me now, for formal decision, are only the lingering aspects of:

a. the aforesaid motion brought by the defendants, seeking relief including various orders compelling Mr Smith to attend a number of independent medical examinations and other assessments, satisfy undertakings, answer refusals, and attend a continued or further oral discovery examination; and b. the aforesaid cross-motion brought by the plaintiffs, seeking relief including orders compelling the defendants to serve a sworn affidavit of documents, satisfy undertakings, and provide further details of efforts made to obtain information that might no longer be available.

[3] In particular, when the motions came before me at a special appointment hearing on June 6, 2018, I was advised by counsel that the parties had been able to reach an agreement on many of the issues raised by the motions.

[4] To document and implement that agreement, the initial substantive portions of my handwritten endorsement, made at the time of the aforesaid special appointment hearing, read as follows:

On consent, interim order to go granting relief as set forth in all paragraphs of draft order marked as Exhibit “A” for identification at this hearing, with exceptions of paragraphs 11, 13 and 14, (with numbering of paragraphs of interim order to be renumbered accordingly, and with date in paragraph 9 of Exhibit “A” draft order to be amended on consent from July 31, 2018, to August 21, 2018).

[5] The specified paragraphs of the draft order expressly not implemented by my endorsement concerned the matters upon which the parties could not agree, namely:

i. whether the plaintiff Mr Smith should be ordered to attend a defence vocational assessment, as requested by the defendants; ii. whether the plaintiff Mr Smith should be ordered to attend a continued and/or further oral discovery examination, as requested by the defendants; and iii. the manner in which costs of the motions should be addressed and resolved.

[6] I received oral submissions from counsel in relation to the first two matters before reserving my decision on those issues, on the understanding that the parties then would be permitted to address the outstanding cost issue by way of written submissions, once my substantive decision on the other two remaining issues had been released.

Rule 48.04

[7] Before turning to the lingering substantive issues and outstanding requests for relief raised by the defendants’ motion, I pause to note that I am mindful of the provisions of Rule 48.04.

[8] That rule generally provides, subject to certain specified exceptions, that “any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court”.

[9] In this case, defence counsel formally did not seek such leave in its original or amended notices of motion. However:

• as noted above, it was the plaintiffs and not the defendants who set the matter down for trial;
• although the defendants did previously consent to the matter being placed on the trial list, it now has been struck from the trial list;
• to the extent the defendants seek a further discovery examination to follow up on Mr Smith’s previous undertakings and refusals, those aspects of the defendants’ amended motion arguably would have fallen within the exceptions to Rule 48.04(1), effectively created by Rules 48.04(2)(iii) and 48.04(3);
• counsel for the plaintiffs did not rely on Rule 48.04 in his opposition to any of the remaining substantive relief being sought by the defendants; and
• as the matter currently has no scheduled pretrial hearing or trial date, there are no pressing trial scheduling constraints and expectations, respect for which Rule 48.04 is designed to promote.

[10] In the circumstances, to the extent leave for the defendants to proceed with their motion may still be required by Rule 48.04(1), (and it arguably is not), I think it appropriate for such leave to be granted.

Request for order requiring assessment by defence vocational assessor

[11] The defendants seek an order compelling Mr Smith to attend a defence vocational assessment to be carried out by Mr Cameron Adams-Webber, a certified vocational evaluator and rehabilitation counsellor based in the city of Burlington, Ontario.

[12] A curriculum vitae for Mr Adams-Webber was filed in evidence, and there was no dispute about his being qualified to perform the vocational assessment desired by the defendants.

[13] The defendants note that they independently were requesting such a vocational assessment in correspondence, sent to plaintiff counsel, even before they were served with two expert reports prepared by another vocational assessor/counsellor retained by the plaintiffs; i.e., Allan Mills of DMA Rehability, here in London. In other words, the defendants emphasize their view that a defence vocational assessment is reasonable and appropriate in any event, in the particular circumstances of this case.

[14] However, the defendants also say that direct interaction between Mr Adams-Webber and Mr Smith is required not only to establish a proper basis for a meaningful, comprehensive, objective and unbiased vocational assessment, but also to ensure that the expert opinion of Mr Adams-Webber is fairly placed on an even footing with that of Mr Mills. In particular, it is said that the trier of fact almost certainly will find any vocational assessment and opinion of Mr Adams-Webber less persuasive than that of Mr Mills, if Mr Adams-Webber necessarily is obliged to proceed on the basis of incomplete and/or indirect information which he lacks the ability to confirm or explore in more detail.

[15] Moreover, the defendants emphasize that Mr Adams-Webber is willing to make arrangements, as necessary, to have the direct interactive aspects of the vocational assessment take place here in London, in a manner designed to avoid or minimize any possible inconvenience to Mr Smith. The defendants also are content to have the direct interaction between Mr Smith and Mr Adams-Webber limited to a maximum of three hours, consistent with what seems to have been the extent of direct interaction between Mr Smith and Mr Mills.

[16] In response, the plaintiffs emphasize that they have agreed to defence medical examinations by two health care practitioners, and to a defence assessment by a life care planner, (in a manner similar to the assessment carried out by the life care planner retained by the plaintiffs), but say that Mr Smith should not be required to engage directly with the vocational assessor retained by the defendants.

[17] In that regard, it is not disputed that the court has jurisdiction to order that Mr Smith participate in such an assessment.

[18] However, plaintiff counsel submits that the matter cannot and should not be approached on a simple “tit for tat” basis, (i.e., with the defendants being entitled to proceed in a certain manner simply because a similar approach was adopted by the plaintiffs or their expert), and that the defendants have failed to put forth sufficient evidence as to why Mr Adams-Webber needs to engage with Mr Smith directly. In particular, plaintiff counsel notes there is nothing from Mr Adams-Webber himself explaining why such direct interaction might be necessary, and submits that this is a case where the extensive medical reports and documentation should suffice to provide Mr Adams-Weber with a basis for his contemplated vocational assessment.

[19] In my view, an order should go requiring Mr Smith to attend a vocational assessment with Mr Cameron Adams-Webber, subject to the assessment taking place here in London on a mutually convenient date, and Mr Smith being required to spend no more than three hours of time directly interacting with Mr Adams-Webber.

[20] My reasons in that regard include the following:

• I think it important to bear in mind the general importance of pretrial discovery procedures and full pretrial disclosure to our system of addressing and resolving civil disputes. As repeatedly emphasized by our Court of Appeal, such procedures eliminate and narrow issues, avoid surprise at trial, facilitate settlement, promote trial efficiency, and generally promote basic fairness. [1] All of that is consistent with the overall interpretative provision in Rule 1.04(1) of the Rules of Civil Procedure, which require that the rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.
• In this particular case, the plaintiffs allege that the defendants are responsible for injuries that have disabled Mr Smith, (previously engaged primarily in carpentry and renovations with occasional automotive repair), to the point where he now effectively is incapable of returning to any form of gainful employment. It is said that reality warrants very substantial damages, (currently capped at $500,000), for income loss and loss of competitive advantage.
• Those allegations now are buttressed by the vocational assessment of Mr Mills, who opines that Mr Smith is competitively unemployable, having regard to the combined effect of:
  • the chronic pain and functional limitations associated with Mr Smith’s left hand;
  • complications arising from associated chronic pain, fatigue and serious mood impairment;
  • the reality that Mr Smith can no longer perform the transferable skills developed in his former employment, or the physical demands and tolerances, (such as climbing ladders, carrying and lifting), required of other forms of related manual employment;
  • Mr Smith’s lack of math knowledge, computer skills and other education or qualifications; and
  • challenges to retraining and job changes created by Mr Smith’s older age, learning disabilities and weak literacy skills, generally making him unsuited to classroom retraining, and effectively making it impossible for him to transition to sedentary jobs.
• As conceded by plaintiff counsel, it is now beyond dispute that the court has inherent jurisdiction to order a party to undergo an assessment by someone who is not a “health practitioner”, as defined in section 105 of the Courts of Justice Act, R.S.O. 1990, c.C.43. Our Divisional Court and Court of Appeal have made it clear that the provisions of section 105 and corresponding Rule 33 of the Rules of Civil Procedure do not “occupy the field”, when it comes to the possibility of court ordered examinations and assessments. The court has inherent jurisdiction to order an examination or assessment by someone who is not a “health practitioner”, even when the examination or assessment in question cannot be characterized as a “diagnostic aid” to a health practitioner’s opinion. Although that inherent jurisdiction should be exercised only “sparingly” and in “clear cases”, it is appropriate to do so when the court concludes that invoking the jurisdiction is necessary “in the interests of justice”, and “required for the defendants to meet the plaintiffs’ case”. [2]
• I do not disagree with plaintiff counsel’s submission that a “clear case” warranting the “sparing” exercise of that inherent jurisdiction should not be readily assumed, on behalf of a defendant, simply because a plaintiff has chosen to retain a particular specialist and submit to a corresponding examination or assessment by that specialist, and the defendant desires a “matching report”. Various decisions have noted that there is no automatic “tit for tat” in that regard, and that a perfectly matching report is not necessarily required “in order to level the playing field”. [3] Certainly, one side engaging in an inappropriate and/or disproportionate assessment exercise should not entail ready court sanctioning of the other side engaging in the same inappropriate and unnecessary exercise, having regard to considerations such as those emphasized in the provisions of Rule 1.04(1.1).
• Having said that, other decisions of this court have emphasized that, where a plaintiff elects to submit to an assessment by a non-health practitioner, and signals his or her intention to place corresponding expert opinion evidence before the court emanating from that assessment, the plaintiff can hardly argue that a similar assessment by a similar non-health care practitioner chosen by the defence would be unnecessary or unfair. [4]
• In this particular case, I have examined carefully the reports and methodology of the plaintiffs’ vocational assessor, Mr Mills, on whose expertise the plaintiffs rely. Having regard to the particular circumstances of this case, Mr Mills did not think it sufficient, when asked to perform a proper and reliable vocational assessment, to rely on information provided by plaintiff counsel and/or extant file documentation, such as the extensive records and reports prepared by health care practitioners, and the indirect reports of Mr Smith’s history, complaints and conditions set out therein. To formulate a proper, objective and defensible expert opinion, Mr Mills instead obviously felt it necessary and appropriate:
  • to conduct a telephone interview of Mr Smith, during which Mr Smith was asked to provide details of his education, medical and work history directly in an interactive manner;
  • to supplement that telephone interview with a personal meeting, during which information provided directly from Mr Smith was confirmed for accuracy and supplemented, in the same interactive manner; and
  • to carry out direct observations, during a “battery of tests” administered by Mr Mills.
• In my view, further evidence is not required to establish that a vocational assessment lacking such foundational support would not be complete or thorough, or merit similar weight.
• Having regard to all the circumstances, I am satisfied that this accordingly is a clear case where the vocational assessor chosen by the defendants should have a similar opportunity to interview, observe and test Mr Smith directly, in an interactive manner, in the interests of justice. The plaintiffs have put Mr Smith’s vocational abilities in issue in this litigation, and the corresponding claim is significant. The defendants must be permitted to test those allegations under fair conditions, which in my view include, at a minimum, the conditions their own expert felt were reasonable and necessary in the particular circumstances of this case.
• My views in that regard are reinforced by the absence of any evidence to suggest that having Mr Smith engage in a similar vocational assessment by Mr Adams-Webber, in conditions designed to minimize inconvenience to Mr Smith, (e.g., by having the assessment carried out in London, with an attendance lasting no more than three hours), would in any way be abusive, cause unreasonable delay, (bearing in mind that this litigation no longer has any set pretrial or trial date), or furthers any suggested ulterior purpose.

[21] An order shall go accordingly.

Request for a continued and/or further oral discovery examination

[22] The defendants also seek an order that Mr Smith attend for a continuation of his oral discovery examination, (insofar as defence counsel wants to ask further questions relating to the undertakings and refusals now addressed by the interim order agreed upon by the parties), and/or a further oral discovery examination, (insofar as defence counsel wants to ask further questions relating to the plaintiffs’ theory of the case that a subsequent injury to Mr Smith’s same hand, and disability resulting from that subsequent injury, effectively were caused by the first accident and hand injury).

[23] I will address the request for a “further” oral discovery examination first.

[24] In that regard, a party to an action normally may examine any other party who is adverse in interest only once. [5]

[25] While Rule 31.03(1) contemplates and permits a party’s examination of an adverse party more than once “with leave of the court”, a party seeking such leave must demonstrate a legitimate reason for the desired further examination. [6]

[26] The defendants say a further examination is warranted in this particular case because they effectively have been surprised by a significant new and/or previously undisclosed theory of causation now being advanced by the plaintiffs. In particular:

• The plaintiffs say that, until relatively recent service of an expert medial report by Dr Robert Richards, (a specialist in plastic and upper extremity surgery employed at the Hand and Upper Limb Clinic at St Joseph’s Hospital here in London), the theory of causation and damages being advanced by the plaintiff essentially was confined to suggestions that the defendants were responsible for the first hand injury sustained by Mr Smith on June 14, 2009, (involving the table saw), following which Mr Smith eventually was able to return to work on a full time basis for approximately one year until he sustained a debilitating second hand injury to the same hand on November 1, 2010, (when a falling trap door crushed his little finger, eventually resulting in partial amputation and loss of feeling as far as that finger was concerned).
• At the time of Mr Smith’s oral discovery examination on July 9, 2015, he was still off work and indicated that he was struggling with depression. However, he did not advise, infer or suggest in any way that his second accident was caused or contributed to in any way by the injuries sustained in the first accident.
• Nor was (or is) there any express reference whatsoever to the second accident and further hand injury of November 1, 2010, in the statement of claim issued by the plaintiffs on June 13, 2011, which has not been the subject of any amendments.
• In the circumstances, defence counsel conducting the oral discovery examination of Mr Smith proceeded on the basis that the second accident was not relevant to the damages being claimed by the plaintiffs, and asked only a few cursory questions in that regard.
• However, in the expert report prepared by Dr Richards on January 18, 2018, and served by plaintiff counsel on February 14, 2018, Dr Richards noted that Mr Smith was relating the second “crush injury” to the little finger of his left hand, (i.e., the accident on November 1, 2010), to the stiffness in that hand caused by the first injury, in that Mr Smith was claiming to have had “difficulty opening and controlling the large metal hatch which then fell”, causing him to sustain the further injury. Dr Richards went further, and opined that the second accident “was contributed to by the disability from the first accident as [Mr Smith] was unable to use his left hand normally and protect it”.
• The plaintiffs submit that such indications and expert opinion evidence significantly changes the plaintiff’s theory of the causation and damages, insofar as it effectively attributes the second hand injury and any disability or loss resulting from that injury to the first hand injury as well. In the circumstances, they say fairness and the underlying goals of pretrial discovery warrant a further oral discovery examination of Mr Smith; e.g., permitting the defendants to explore the alleged mechanism of the second accident in more detail, and to investigate the alleged impact of the second accident on Mr Smith’s alleged medical condition and income loss.

[27] Plaintiff counsel opposes any further oral discovery examination of Mr Smith in that regard, in part based on an assertion that defence counsel conducting the earlier examination was specifically advised, during “off the record” discussions on the day of the examination:

• that the defendants bore legal responsibility for Mr Smith’s second hand injury;
• that the plaintiffs took the position the second accident occurred as a result of the previously sustained “table saw” hand injury, due to a resulting lack of function and/or weakness in the affected hand; and
• that defence counsel examining Mr Smith accordingly should ask any questions he deemed appropriate in that regard.

[28] Plaintiff counsel indicated his belief that the examining defence lawyer then had examined on such issues “with the same level of details as he did with all other questioning”.

[29] In the circumstances, it was argued by plaintiff counsel that the defendants had exhausted their appropriate and fair opportunity to ask Mr Smith relevant questions under oath, as far as the second accident was concerned, and that the requested further oral discovery examination of Mr Smith accordingly would be abusive, unnecessary and unproductive.

[30] I disagree, and think fairness requires Mr Smith to attend a further oral discovery examination permitting the defendants to explore in detail the alleged causal connection between the first hand injury and the second, and corresponding loss, including such matters as:

a. the nature and extent of the particular initial hand injuries and limitations said to have contributed to the second injury; b. the precise mechanics and circumstances of the second incident; and c. the nature and extent of the injuries, resulting disability and/or income loss or loss of competitive position attributed to the second incident, (and therefore indirectly to the first incident on the plaintiffs’ theory of the case).

[31] My reasons in that regard include the following:

• I agree with the defendants that possible attribution of the second accident to the first is a very significant issue and development, particularly if the evidence accepted by the trier of fact should establish that Mr Smith was not permanently disabled and effectively rendered unemployable by the first accident, but sustained that alleged incapacity only through a second accident for which the defendants may bear no responsibility. In my view, the significant potential impact of such causation arguments on quantification of the plaintiffs’ claims for general and specific damages, (and income loss in particular), is self-evident.
• I also agree with the defendants that the plaintiffs’ pleading contains nothing that would fairly and properly alert the defendants to any suggestion that the plaintiffs intended to attribute the second hand injury of November 1, 2010, and its consequences, to the first hand injury of June 14, 2009. A statement of claim is intended to clarify the issues in dispute, provide fair notice to defendants of claims being made against them and the facts relied upon in support of such claims, and help define the parameters of relevance in order to ensure litigation and trial efficiency. To promote such ends, Rule 25.06(1) expressly requires a statement of claim to include a concise statement of the material facts upon which the plaintiff relies for his or her claim. In this case, the statement of claim contains absolutely no mention of the second accident and injury to Mr Smith’s hand, which are clearly material facts based on the plaintiffs’ current theory of the case reflected in Dr Richard’s report. In my view, they are not facts which should have been permitted to lay in the figurative “pleading weeds”; e.g., by effectively sheltering them under broad and indirect references to injuries and damages “resulting” from the first specified incident and injuries on June 14, 2009. If references to the second accident and resulting injury and loss inadvertently were omitted from the plaintiffs’ original pleading, in my view they should have been the subject of express amendments to the plaintiffs’ pleadings. That fairly would have put the defendants on notice of the claims and causation arguments they were obliged to meet, (if the amendments were requested and made before Mr Smith’s oral discovery examination), and/or buttressed the defendants’ entitlement to a further examination, (if the amendments were requested and made after Mr Smith’s oral discovery examination).
• For various reasons, I am not persuaded by after-the-fact assertions by plaintiff counsel and Mr Smith that “off the record” discussions on the day of Mr Smith’s examination effectively and fairly brought the plaintiffs’ previously unstated theory of causation relating to the second accident and hand injury home to defence counsel, prior to the examination being concluded. Without limiting the generality of the foregoing:
  • Only hearsay evidence, (provided by a lawyer working with plaintiff counsel, who claimed to have heard such contentious indications from plaintiff counsel arguing the motion and from Mr Smith), was presented in support of such assertions. In my view, any such evidence, relating to such an important and contentious matter, should have been provided by direct sworn evidence, with plaintiff counsel entrusting argument of the motion to someone else.
  • Such evidence also was provided very belatedly, (i.e., just the day before the motion was argued before me), and in contravention of the timetable established by the certificate of readiness filed by the parties to secure the special appointment motion. In the circumstances, defence counsel arguing the motion understandably indicated that the defendants effectively were given no time to address the alleged assertions of plaintiff counsel and Mr Smith; e.g., by the preparation and filing of direct sworn evidence from defence counsel who conducted the oral discovery examination of Mr Smith, denying that any such off the record discussions took place. I was informed that such evidence definitely would have been tendered by the defendants, had they been given any meaningful opportunity to do so.
  • Having reviewed the transcript of the oral discovery examination of Mr Smith, I reject the suggestion that examining defence counsel addressed the second accident and its consequences in anything remotely resembling the same detail as the attention paid to the first incident and hand injury specifically identified in the plaintiffs’ statement of claim. Circumstances before, during and following the incident on June 14, 2009, (including prior use of the table saw, its intended use on the day in question, the precise timing and circumstances of its use, surrounding conditions and surfaces, the “slow motion” mechanics of the incident, efforts or possible efforts by the plaintiff to avoid or evade injury, resulting injuries, and ensuing treatment), were examined in minute detail in questioning that extends over the course of approximately 90-100 pages of examination transcript. In contrast, the mechanics of the second accident were addressed very briefly over the course of less than two pages of transcript, and there are only 3-4 passing additional references to the second accident found elsewhere in the record of the examination. In the circumstances, I find it very difficult to believe and accept that examining defence counsel would have adopted such a demonstrably different approach to questioning in relation to the first and second accidents, had he received proper and timely notice that the plaintiffs were attributing the second accident to the first, and claiming losses stemming from both without distinction. In the result, I do not think examining defence counsel did receive such notice.
• My views in that regard are buttressed various indications and answers Mr Smith did give during his oral discovery examination, in relation to the second accident. For example:
  • During the examination of Mr Smith, defence counsel expressly requested clarification and confirmation, (at paragraph 95 of the transcript), that hand injuries resulting from Mr Smith’s first accident in June of 2009 were treated only by Dr Richards and Mr Smith’s family doctor, that Dr Scilly had provided treatment only in relation to the hand injuries sustained in the second accident, and that Mr Smith’s family doctor and Dr Richards accordingly were the only physicians the defendants had to “worry about” as far as the hand injury claim was concerned. Mr Smith confirmed that they were, and plaintiff counsel made no effort to intervene or offer any corrections in that regard – as might fairly have been expected if it was known at the time that the second hand injury accident was being attributed to the first. In my view, that reinforces an impression that neither counsel was thinking, at the time, that the second accident and its consequences were being attributed to the first.
  • Similarly, when asked during the examination whether he took any medications more than one year after the first accident, because of the first accident, Mr Smith’s answer was “no”. This too suggests that Mr Smith was not, at the time, drawing any connection between the first and second accidents, or their respective consequences. Once again, there also was no intervention or clarification from plaintiff counsel to suggest otherwise.
• For present purposes, I also think it significant that Mr Smith, (at least based on the brief and limited descriptions available), may have provided different accounts of the mechanics of the second accident when speaking with defence counsel during the oral discovery examination and later to Dr Richards. In particular, during his oral discovery examination, Mr Smith indicated that his hand (without specification as to right or left) let go of a pipe while it was being lowered through a trap door to a basement, after which his hand (without specification as to right or left) knocked the prop holding the trap door open, causing the trap door to shut on his left hand. However, in the account provided to Dr Richards, Mr Smith apparently claimed that, because of stiffness in his left hand from his first injury, he had difficulty “with opening and controlling the large metal hatch which then fell”. In my view, this underscores the importance, (given the plaintiffs’ current theory of the case regarding causation), of properly exploring and confirming, for the benefit of all concerned, the circumstances and mechanics of the second accident.
• More generally, I am again mindful of the fundamental purposes of pretrial discovery emphasized by our Court of Appeal, noted above. Our modern approach to civil litigation is clearly designed to move us well beyond the days when substantive outcomes effectively were determined by significant issues and evidence being kept in the shadows until trial, thereby rendering them incapable of thorough advance presentation, exploration and assessment. As noted above, pretrial discovery procedures, and oral discovery examinations in particular, are intended to eliminate and narrow issues, avoid surprise at trial, facilitate settlement, promote trial efficiency, and generally promote basic fairness. In my view, the particular circumstances in this case are such that those various goals will not be fostered without the “further” oral discovery examination sought by the defendants, for the purposes identified in paragraph 30, supra. In particular, I see little or no benefit in allowing this action to continue its progress towards trial with the defendants having significant unanswered questions about the second accident and its consequences and the possible causal connection of both to the first accident left unanswered, while the plaintiffs continue to withhold such relevant information and evidence. In the interests of fairness, promotion of settlement and trial efficiency, I think the plaintiffs should be obliged to put their figurative cards on the table in that regard through a further oral discovery examination. In my view, the rationale for compelling such disclosure by a further oral discovery examination is particularly strong in circumstances where there currently are no pressing time constraints in terms of any scheduled pretrial or trial.

[32] As noted above, the defendants also sought an order to “continue” their oral discovery examination of Mr Smith, in relation to his previous undertakings and refusals; e.g., to ask Mr Smith further questions concerning the additional information and documentation either supplied since his original examination, or to be supplied through the further steps agreed upon by the parties.

[33] The court has jurisdiction to order further/continued oral discovery examination, in relation to written attempts to satisfy originally “incomplete” answers, when it is satisfied that such further examination is required for the useful purpose of ensuring full and fair disclosure. [7]

[34] This is because, generally speaking, had answers to undertakings been available at the time of the original oral discovery examination, not only would the answers have been given under oath as part of the transcript, but the examining party would have been entitled to ask appropriate follow up questions as part of the original examination. Subsequently, provided answers that genuinely gives rise to follow up questions therefore arguably should give rise to a right to “complete” the original oral discovery as if the questions had been answered at the time. [8]

[35] However, the right to such further/continued examination, to follow up on subsequently provided answers, is a limited and not absolute right. While no general rules are possible, each case must be considered on its merits, with the onus being on the party seeking such further examination to demonstrate that any such further attendance would serve a useful purpose. [9] In part, that involves an assessment of the information provided pursuant to the undertaking, and whether it genuinely gives rise to a demonstrated need for follow up questions. [10]

[36] Having regard to considerations of proportionality, emphasized by Rule 1.04(1.1), I certainly do not think such continued discovery examinations should be the norm when originally incomplete answers are addressed by undertakings, even belatedly. The giving of undertakings during oral discovery examinations is a routine and common practice, and the time, expense and delays inevitably associated with facilitating re-attendance for further examination may rarely be justifiable.

[37] In the present circumstances, where Mr Smith already will be attending for a further oral discovery examination, (for the reasons outlined above), there arguably would be little or no reason why the defendants should not be permitted to ask relevant follow-up questions genuinely arising from the satisfied undertakings. I would encourage the parties to proceed co-operatively in that regard, bearing in mind that answering relevant questions is not a penalty or punishment, but a component of proper fair and full disclosure that promotes just settlements and determinations of disputes.

[38] However, the manner in which the matter came before me, (whereby further steps were agreed upon to address and answer undertakings not yet satisfied, and there accordingly was little or no argument as to what proper relevant follow up questions genuinely might or might not arise from such efforts), precludes me from making any advance determinations as to what further questions may genuinely and fairly arise from the material and information to be produced.

[39] For the time being, I therefore think it sufficient to order Mr Smith’s attendance at a further examination for the purposes outlined in paragraph 30, supra, without prejudice to the ability of the parties to seek further relief from the court in the future, if and as necessary, once the parties have completed the further agreed steps towards satisfaction of undertakings and full disclosure. [11]

Costs

[40] Again, it was always contemplated that the parties would have an opportunity to address costs of their motions by way of written submissions, once they had an opportunity to receive and review my substantive decision resolving the issues addressed above.

[41] Of course, it is always preferable, (and frequently more cost-efficient), for parties to discuss and agree on cost resolutions acceptable to all concerned.

[42] However, if the parties are unable to reach an agreement on entitlement and/or quantum in relation to outstanding cost issues:

a. the defendants may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision; b. the plaintiffs then may serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the defendants’ written cost submissions; and c. the defendants then may serve and file, within one week of receiving any responding cost submissions from the plaintiffs, reply cost submissions not exceeding two pages in length.

[43] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

“Justice I. F. Leach” Justice I.F. Leach Date: August 27, 2018

Footnotes

[1] See, for example: Ontario v. W.G. Thompson (1981), 32 O.R. (2d) 69 (C.A.); and Iannarella v. Corbett (2015), 124 O.R. (3d) 523 (C.A.). [2] See Ziebenhaus v. Bahlieda, 2015 ONCA 471, at paragraphs 9-15. [3] See, for example: MacDonald v. Rai, [2005] O.J. No. 2556 (S.C.J.), at paragraph 6; and Suchan v. Casella, [2006] O.J. No. 2457 (Master), at paragraph 7. [4] See, for example, Vanderidder v. Aviva Paving Inc., 2010 ONSC 6222, [2010] O.J. No. 5011 (S.C.J.), at paragraphs 33-35. [5] See Rule 31.03(1) of the Rules of Civil Procedure. [6] See Muslija v. Pilot Insurance Co., [1991] O.J. No. 872 (Gen.Div.); and Marcoccia (Litigation Guardian of) v. Gill, [2006] O.J. No. 4972 (S.C.J.). [7] See Rule 31.09(2)(b), and Ratana-Rueangsri v. Shorrock, [2009] O.J. No. 900 (S.C.J.), at paragraph 24. [8] See Senechal v. Muskoka (Municipality), [2005] O.J. No. 1406 (Master), followed in Trewin v. MacDonald, [2007] O.J. No. 1249 (S.C.J.), and Ratana-Rueangsri v. Shorrock, supra. [9] See Ratana-Rueangsri v. Shorrock, supra, at paragraph 26, and the authorities cited therein. [10] See Cushing v. Beaulieu, [2015] O.J. No. 1411 (S.C.J.), at paragraphs 29-31. [11] It should be noted and emphasized that I am not seized of this matter, and that efforts to bring the matter back before me are likely to delay rather than expedite the hearing of any further motions relating to this matter, given my other trial commitments. In particular, any judge of the court should and would be able to hear further motions regarding the adequacy of disclosure in this matter.