Court File and Parties
BARRIE COURT FILE NO.: CV-15-0363 DATE: 20180912 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Kirk Del Pino and Laura Del Pino, Plaintiffs – and – Joanne Kolomeitz, Wiarton Animal Hospital Professional Corporation, The Corporation of The County of Grey and Harold Sutherland Construction Ltd. Defendants
Counsel: Shane Henry, for the Plaintiffs James Kwon, for the Defendants/Moving Parties, Joanne Kolomeitz and Wiarton Animal Hospital Professional Corporation Patrick J. Murphy, for the Defendant, The Corporation of The County of Grey No one appearing, for the Defendant, Harold Sutherland Construction Ltd.
HEARD: July 24, 2018
REASONS FOR DECISION
DE SA J.:
Background
[1] This action arises from a motor vehicle accident that occurred on November 22, 2014. The Plaintiffs, Kirk Del Pino (Kirk) and Laura Del Pino commenced the action by Statement of Claim on March 26, 2015.
[2] The Moving Defendants delivered a Statement of Defence, Counterclaim and Crossclaim on May 19, 2015.
[3] The discovery of Kirk Del Pino was held on February 23, 2016 at which time he gave a number of undertakings and took other questions under advisement. For the most part, these requests have been complied with by the Plaintiff.
[4] The Moving Defendants have now sought additional documentation and information from Mr. Del Pino and his employers with respect to his alleged injuries and pecuniary losses. These requested documents are the subject matter of this motion.
Documents/Information Sought
[5] In the Statement of Claim, Kirk alleges that he has been unable to return to either of the two full-time jobs he has held for approximately 15 years. Prior to the collision he worked as a driver for FedEx during the day and at the lost baggage desk for Air Canada at night. Kirk alleges that he has become unable to perform all of the essential elements of either of these pre-collision occupations. He also alleges that he has lost his future earning capacity, a loss of competitive advantage and a shortened work expectancy. He seeks damages for these losses.
[6] The documents/information sought relate primarily to the calculation of damages pertaining to lost future income. Much of the documentation is sought directly from the Plaintiff’s employers by way of a rule 30.10 Order. Rule 30.10 provides:
Order for Inspection
30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document. R.R.O. 1990, Reg. 194, r. 30.10 (1).
[7] Air Canada and FedEx have agreed to provide the requested documents if ordered to do so. The documents sought include the following:
From Air Canada: a. Attendance records and employee sponsored pension statements for the three year period preceding the date of loss. b. All documentation from Air Canada with respect to Mr. Del Pino’s dismissal and/or suspension and reinstatement as it pertains to future income. c. To explain the meaning of “sold time” and produce the portion from the employment file from accounting showing transactions relating to any “sold” time by Mr. Del Pino in 2015, 2016 and 2017. More specifically, the Defendants ask for an explanation of what “sold time” means in relation to the Plaintiff’s specific employment circumstances/records. While the generic definition of “sold time” is in the disclosed records, what it means in the Plaintiff’s records is unclear.
From FedEx: a. Attendance records and employee sponsored pension statements for the three year period preceding the date of loss. b. Any written policy from FedEx dealing with a truck driver holding a second full-time job. c. All documentation and records from FedEx relating to Mr. Del Pino’s leave of absence of 11 days in 2017 and 16 days in 2016. d. To provide underlying medical records and employment records relating to modified duties “for medical reasons” that Mr. Del Pino has been placed on.
From Great West Life File: The Great West Life file relating to the disability claim file from 2001 forward. During the course of the hearing, the Plaintiff agreed that production is warranted.
Position of the Plaintiff
[8] During the course of the hearing, the Plaintiff agreed to production of the majority of the items listed above. The only documentation remaining in dispute is:
All documentation from Air Canada with respect to Mr. Del Pino’s dismissal and/or suspension and reinstatement as it pertains to future income; and
Any written policy from FedEx dealing with a truck driver holding a second full-time job.
[9] With respect to the suspension and/or dismissal and reinstatement, the Plaintiff takes the position that anything relevant has already been disclosed in the arbitration decision. According to the Plaintiff, the defendants are not entitled to the underlying notes prepared by Air Canada in preparation for the grievance hearing as these complaints have been adjudicated upon at the arbitration. According to the Plaintiff, to revisit the original complaints of Air Canada would impugn the findings made in the arbitration. In short, these other notes are no longer relevant.
[10] With respect to the FedEx policy (second full time job for truck drivers), the Plaintiff again takes the position that the policy, if any, is not relevant. What matters is the Plaintiff’s physical ability to perform two jobs. This is not impacted by any Fedex policy.
Are the Documents Sought Relevant?
[11] In R. v. Arp, [1998] 3 SCR 339, at para. 38, the Supreme Court of Canada described “relevance” as follows:
Relevance depends directly on the facts in issue in any particular case. … To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. As a consequence, there is no minimum probative value required for evidence to be relevant. [Emphasis added and Citations omitted.]
[12] In the civil context, relevance is determined by reference to the pleadings. Relevance for the purposes of production and discovery should be broadly construed given the ultimate goal that issues are to be litigated on their merits. The Supreme Court explained in R. v. Stinchcombe, [1991] 3 SCR 326:
Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met. [Emphasis added.]
[13] Unless a document is privileged or clearly irrelevant, it should be produced by a party to the action. As explained in rule 30.05, the disclosure or production of a document is not to be taken as an admission of relevance or admissibility. The ultimate admissibility of such evidence and/or its probative value can be addressed at trial.
[14] No doubt, if the document/information is only marginally relevant, and there are issues (costs/delay/substantial inconvenience) relating to obtaining the requested information, objections can be made on the basis of proportionality in a specific case. However, for the most part, if documents are obtainable and potentially relevant to an issue in the litigation, they should be produced subject to any particular concerns of privilege. The ultimate probative value/relevance of the documentation/information can often only be understood in the context of the case as a whole. To unnecessarily waste court time and costs litigating the legitimacy of refusals or the relevance of documentation on motions is hardly in the interests of the justice.
Rule 30.10
[15] In Ontario (Attorney General) v. Stavro, the Ontario Court of Appeal dealt with Rule 30.10. In discussing the rule, the Court explained:
In making the fairness assessment required by rule 30.10(1) (b), the motion judge must be guided by the policy underlying the discovery régime presently operating in Ontario. That régime provides for full discovery of, and production from parties to the litigation. It also imposes ongoing disclosure obligations on those parties. Save in the circumstances specifically addressed by the Rules, non-parties are immune from the potentially intrusive, costly and time-consuming process of discovery and production. By its terms, rule 30.10 assumes that requiring a party to go to trial without the forced production of relevant documents in the hands of non- parties is not per se unfair. [Emphasis added.]
[16] The Court also recognized that the discovery process should be kept within reasonable bounds, and should take into account the interests of third parties, proportionality, and the need to have matters progress to trial. The Court explained:
The discovery process must also be kept within reasonable bounds. Lengthy, some might say interminable, discoveries are far from rare in the present litigation environment. We are told that discovery of these defendants has already occupied some 18 days and is not yet complete. Unless production from and discovery of non-parties is subject to firm controls and recognized as the exception rather than the rule, the discovery process will just grow and grow. The effective and efficient resolution of civil lawsuits is not served if the discovery process takes on dimensions more akin to a public inquiry than a specific lawsuit. [Emphasis added.]
[17] The Court also explained that in deciding whether to order production, the factors to be considered by the motion judge should include: 1) the importance of the documents in the litigation; 2) the position of the non-parties with respect to production.
Application to this Case
[18] Documentation from Air Canada with respect to Mr. Del Pino’s dismissal and/or suspension and reinstatement as it pertains to future income: In my view, the arbitration decision does not necessarily include all relevant information contained in the underlying notes. While the arbitration decision may impact the probative value of any complaints/grievances made by Air Canada, it does not foreclose the possible relevance of the underlying documentation.
[19] Any written policy from FedEx dealing with a truck driver holding a second full-time job: In my view, the calculation of future loss is determined, at least in part, by reference to existing employment. If the Plaintiff were to lose his current employment, this will no doubt impact the calculation of future loss. I disagree with the Plaintiff that the “loss of future income” is based strictly on ability to work. It is partly based on the Plaintiff’s employment situation and any risks of losing that employment during the relevant period.
[20] In the circumstances here, nothing indicates that it would be difficult to obtain the documentation sought. On the contrary, both Air Canada and Fedex have indicated that they have the documentation available for production.
[21] Moreover, I expect the documentation sought would have been readily available to the Plaintiff had he requested it from his employer. The documentation should have been obtained by the Plaintiff and produced when requested.
[22] In the circumstances, it would be unfair to require the moving party to proceed to trial without having discovery of the documentation.
Disposition
[23] The following items are ordered to be produced:
Air Canada File:
- The attendance records and employee sponsored pension records for the three years preceding the date of loss are ordered.
- The Plaintiff is ordered to advise and provide particulars relating to references to “Sold Time” and explain its meaning in the context of Mr. Del Pino’s records – 2015, 2016 and 2017.
- The balance of the Air Canada grievance file is ordered.
Great West Life File
- The Great West Life file is ordered to be produced from the period of 2001 forward. There were disability leaves claimed in 2001 and 2003. In my view, the underlying reasons for the leave may be relevant to the calculation of damages (including future losses) as against the Defendant.
FedEx File
- The attendance records and employee sponsored pension statements for the three years preceding the date of loss are ordered produced.
- The leave of absence documentation, including the reasons for the leave are ordered produced. The leaves include the 11 days in 2017 and the 16 days in 2016.
- Any records explaining the reasons for the modified duties with FedEx which commenced in February 2018 are ordered produced.
Paula Taylor File
- The complete file of Paula Taylor of the Bronte Naturopathic Detox & Wellness Centre is ordered to be produced.
[24] Any outstanding undertakings are also ordered to be complied with within 30 days of this Order.
[25] Given that many of the issues were resolved on consent, I order costs in favour of the Moving Defendants in the amount of $2000.