Court File and Parties
COURT FILE NO.: CV-14-00518579 MOTION HEARD: 20181017 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Edsell, Plaintiff AND: Matthew Huggins, Intercontinental Hotels Group (Canada) Inc. also operating as the Intercontinental Toronto Centre, Defendants
BEFORE: Master B. McAfee
COUNSEL: S. Razenberg, Counsel for the Plaintiff David Edsell G. Harper, Counsel for the Defendant Intercontinental Hotels Group (Canada) Inc. also operating as the Intercontinental Toronto Centre
HEARD: October 17, 2018
Reasons for Decision
[1] This is a motion brought by the plaintiff David Edsell (Edsell) for answers to undertakings and questions refused on the examination for discovery of a representative of the defendant Intercontinental Hotels Group (Canada) Inc. also operating as the Intercontinental Toronto Centre (IHG) held on July 13, 2017. The plaintiff also seeks an order that the representative of IHG re-attend on examination for discovery to answer proper questions arising from the answers to undertakings and refusals ordered answered.
[2] The plaintiff and IHG consent to an order that IHG shall satisfy undertaking nos. 18, 39, 42, 70 and 75 within 60 days of October 17, 2018.
[3] The plaintiff and IHG also agree that undertaking no. 8 is no longer at issue. The plaintiff is no longer pursuing refusal no. 14.
Undertakings
[4] Undertaking Nos. 45, 47 and 48: I am not satisfied that best efforts to answer these undertakings have been demonstrated. The undertakings shall be answered or evidence of best efforts to answer the undertakings provided within 60 days.
[5] Undertaking No. 71: The plaintiff now agrees to limit undertaking no. 71 to employees of IHG. At undertaking no. 70 IHG agreed, in accordance with Rule 31.06(2) of the Rules of Civil Procedure, to provide a list of names and addresses of persons who might reasonably be expected to have knowledge of the transactions and occurrences in issue in the action. At undertaking no. 71, IHG agreed to provide a summary of their evidence in accordance with that Rule. On the motion, IHG takes the position that a summary of evidence is not required under Rule 31.06. While Rule 31.06 does not specifically refer to providing a summary of evidence, the case law decided thereunder indicates that, if requested, a summary of the substance of the evidence of those persons who might reasonably be expected to have knowledge of the matters in issue must be provided (see Todd Archibald and Tamara Sugunasiri, Ontario Superior Court Practice, 2019 (Toronto, Ont.: LexisNexis, 2018), at pp.1368-1369). The undertaking remains outstanding and shall be answered limited to employees of IHG within 60 days.
Refusals
[6] Refusal No. 4: Copies of the notes for the week prior to the date of the incident have now been provided. I am not satisfied of the relevance of the notes post-dating the incident in question based on the pleadings. There is no pleading of negligent investigation of the incident. The question need not be answered.
[7] Refusal Nos. 5 and 10: I am satisfied that the questions are relevant based on the pleadings and in particular based on paragraph 6 (a)-(d) of the statement of claim. The questions shall be answered within 60 days.
[8] Refusal No. 9: On the motion IHG submitted that the question is objected to on the basis that the question calls for a legal conclusion. The question asks whether it would have been reasonable to have a doorman there at night. At paragraph 5 of its statement of defence and crossclaim, IHG pleads that it took reasonable care in the maintenance and upkeep of the premises including the provision of adequate security. I am satisfied that the question is relevant on the basis of that pleading and that the question does not call for a legal conclusion. The question shall be answered within 60 days.
Re-Attendance
[9] While a re-attendance is not an absolute right, having regard to the number of undertakings (approximately 75) and the nature of the undertakings and refusals ordered answered, I am satisfied that a re-attendance will serve a useful purpose. The plaintiff agrees to limit the re-attendance to one hour and 30 minutes.
Costs
[10] With respect to the issue of costs, I am satisfied that some costs are payable to the plaintiff. I am also satisfied that an order that costs be paid to the plaintiff in any event of the cause is more just in all of the circumstances. Certain undertakings remain outstanding and have agreed to be answered or ordered to be answered. Certain refusals have been answered or ordered to be answered. The plaintiff was successful in obtaining an order for re-attendance. However, the vast majority of undertakings were answered in advance of the motion, certain refusals were not pursued and one contested refusal was not ordered to be answered.
[11] Costs of the motion are fixed in the all-inclusive sum of $1,500.00 payable by IHG to the plaintiff in any event of the cause.
Summary of Order
[12] Order to go as follows:
- On consent of the plaintiff and IHG, IHG shall satisfy undertaking nos. 18, 39, 42, 70 and 75 within 60 days of October 17, 2018.
- Undertaking nos. 45, 47 and 48 shall be answered or evidence of best efforts to answer shall be provided within 60 days.
- Undertaking no. 71 shall be answered limited to employees of IHG within 60 days.
- Refusal nos. 5, 9 and 10 shall be answered within 60 days.
- The representative of IHG shall re-attend on examinations for discovery to answer proper questions arising from the answers given to undertakings and refusals ordered answered, limited to one hour and thirty minutes in length.
- Costs of the motion are fixed in the all-inclusive sum of $1,500.00 payable by IHG to the plaintiff in any event of the cause.
Master B. McAfee