Court File and Parties
Court File No.: CV-16-562936 Motion Heard: 15 October 2018 Superior Court of Justice - Ontario
Re: Appoline Aldea and Arnulfo Belen, Plaintiffs And: Marlon J. Levy and Toronto Transit Commission, Defendants
Before: Master Jolley
Counsel: Joseph Chan, Student-at-Law for the Moving Party Defendant Toronto Transit Commission Peter Cozzi, Counsel for the Responding Party Plaintiff Aldea
Heard: 15 October 2018
Reasons for Decision
[1]
Background
The plaintiff Aldea (the “plaintiff”) has listed 18 documents in Schedule “A” to her affidavit of documents. The defendant Toronto Transit Commission (“TTC”) brings this motion to compel the plaintiff to deliver copies of those Schedule “A” documents or, at a minimum, to allow TTC to inspect the documents in advance of conducting its examination for discovery of her.
2The plaintiff admits that the documents are relevant by virtue of listing them in her Schedule “A”. However, she states that she only has two of those document categories, namely the pleadings and correspondence. She does not have any of the other documents she has listed in Schedule “A”, being the accident benefits and property damage documents, liability and damage documentation, income loss documents and medical documents. She is not prepared to obtain those documents unless the TTC pays the cost of doing so upfront.
3When asked how the plaintiff intended to bring these documents with her to her examination for discovery as required by Rule 30.04(4), her counsel advised that she would not bring the documents but would undertake to provide them upon the TTC’s agreement to pay the costs upfront.
4The plaintiff has also refused to produce the documents for inspection, taking the position that they are available “at some other convenient place” as set out in Rule 30.04(3), namely the physicians’ offices or employers’ offices and the defendant can inspect them there and pay the costs required of those service providers.
[5]
Analysis
This approach ignores two fundamental principles. First, by listing the documents in Schedule “A” of her affidavit of documents, the plaintiff had sworn that she does not object to producing the documents for inspection. She cannot now object to their production or impose some terms on when they will be produced.
6Second, as noted in Yang v Gazey [2011] O.J. No. 6137 and Hollo v. Toronto Transit Commission 2010 ONSC 1656, it is not the defendant’s responsibility to fund the plaintiff’s lawsuit. Here the TTC has not even taken the position that it will not cover the cost. What it requires is production of the documents along with an invoice from the service provider and an invoice from plaintiff’s counsel showing that the invoice has been paid. The cases presented by the plaintiff are distinguishable as they deal with a party’s undertakings and refusals or requests under Rule 30.10, not a party’s Schedule “A” documents. I adopt the following from Saunders v. John Doe 2016 ONSC 2060 at paragraph 21:
It is clear from the manner in which the motion before me was argued that the plaintiff does not appreciate the distinction between his documentary discovery obligations and obligations which may arise on the basis of undertakings given, at the request of the defendant, to produce documents. It is the plaintiff’s obligation to secure, at his expense, the documents upon which he intends to rely in support of his claim, list those documents in his affidavit of documents, make those documents available for inspection by the defendant, and, if requested to do so, produce copies of the documents to the defendant (with the copies produced at the defendant’s expense).
7The failure of the plaintiff to produce the documents has already resulted in the cancellation of her examination for discovery that was scheduled for 23 August 2018.
[8]
Disposition
The plaintiff is hereby ordered to obtain the documents listed in Schedule “A” of her affidavit of documents and either provide copies of those documents to the TTC or make the documents available at the office of Mr. Cozzi for inspection. She has already requested copies of the documents from the service providers and is to follow up with those from whom she had not heard in 20 days and pay those who require payment. She is to advise defendant’s counsel when she is in receipt of all the productions in her Schedule “A” so that the documents can be reviewed or copies obtained and the examination rescheduled.
[9]
Costs
The TTC has requested its costs of the motion on a partial indemnity basis in the amount of $1,120. Had the plaintiff been successful she would have requested the sum of $4,310.95 on a partial indemnity basis. The amount sought by the TTC is a fair and reasonable amount that the plaintiff could expect to pay for costs in all of the circumstances of the motion. I order the plaintiff to pay the TTC its cost of the motion in the amount of $1,120 within 30 days.
Master Jolley
Date: 16 October 2018