COURT FILE NO.: CV-13-485765
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF ANTHONY SMALLING, deceased, MARCIA WELCOME, PAUL CAMPBELL, SHANTEL SMALLING, MITCHELLE WELCOME, KNOXINE WELCOME and JARIYAH MCCABE, a minor by his Litigation Guardian, MARCIA WELCOME
Plaintiffs
– and –
TORONTO COMMUNITY HOUSING CORPORATION, GREENWIN INC. and THE CORPORATION OF THE CITY OF TORONTO
Defendants)
Alan Honner, for the Plaintiffs
Andrew Cosgrave, for the Defendant,
Toronto Community Housing Corporation
HEARD: January 25, 2018
G. DOW, J.
REASONS FOR DECISION
[1] The plaintiffs appeal the decision of Master Jolley June 27, 2017 with regard to the remaining defendant, Toronto Community Housing Corporation (hereinafter the “the defendant”) refusing to answer certain questions asked at the defendant’s examination for discovery held on September 2, 2014. The action is a claim for negligence against the defendant arising from a non-party, Juede Noel shooting Anthony Smalling outside the defendant’s property at 7 Capri Road, Etobicoke, on July 29, 2011. Anthony Smalling died as a result of his injuries.
[2] The parties did not dispute the standard of review of the Master’s decision was correctness as described by Justice Low in Zeitoun v. Economical Insurance Group, [2008] O.J. No. 1711 (at paragraph 40) where she states: “the decision will be interfered with only if the Master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error”.
[3] The essence of the plaintiffs’ submission is that the determination of relevance and whether a question should be answered is governed by the pleadings and not the evidence (or lack thereof) subject to proportionality. The plaintiffs rely on the comment of Master Haberman in Romspen Investment Corporation v. Woods et al, 2010 ONSC 30005 (at paragraph 16) where she stated “subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met – the question asked is relevant”.
[4] In reviewing the factual matrix, it is not disputed there was no barrier to the perimeter of the property. Juede Noel drove onto the property to deliver a support payment to the mother of their child who resided in the building . He and the mother, Alicia Edwards were no longer in a relationship. Anthony Smalling and Alicia Edwards were in a relationship at that time. Anthony Smalling was outside the building with others when Juede Noel arrived. Juede Noel gained access to the building by a tenant entering at the same time. Anthony Smalling and the others were still outside the building when Juede Noel exited. Words were exchanged as or after Juede Noel got back into his car. Juede Noel fired a gun striking Anthony Smalling twice.
[5] The defendant keeps records of incidents at its building, known as CORA which were agreed to be produced for the year prior to the incident. The records detail damage to property and assaults. The request for five years of records before the incident was refused. The defendant also employs patrol officers that periodically visit its buildings including 7 Capri Road to inspect and ensure access points to the building and surveillance cameras are in proper order. The patrol officer keeps records in a memo book of his or her observations which presumably relate to more (or less serious events) than what results in incidents as recorded by CORA. These records also identify the author and this was refused to be provided in its entirety.
[6] Overall, the basis for the Master agreeing to sustain the defendant’s refusal appears to have been such documentation was not relevant to how Juede Noel came to be outside the premises and interact with Anthony Smalling that evening.
[7] To a limited extent, I disagree. As part of its allegations of negligence, the plaintiffs have raised the defendant’s duty to provide adequate security in the face of what it knew was occurring on the premises and that greater security would have resulted in Juede Noel not taking the action he did. To do so, and having pleaded it as a particular of negligence, the plaintiffs are entitled to the defendant’s knowledge, information or belief including documentation relevant to that issue. As a result, in so far as the Master’s decision to not permit the plaintiffs to obtain production of the records of the patrol officers as it pertains to 7 Capri Road prior to the date of loss, a palpable error has occurred and cannot stand. This appears to be what was asked for in question 85 and it shall be answered for the one year prior to the date of loss.
[8] Similarly, question 99 requires an answer with regard to information, if any, in the possession or control of the defendant pertaining to permits granted or security required for tenants to conduct events outside the building on the defendant’s property.
[9] The balance of the appeal is dismissed. In my view, the balance of questions in the Master’s decision were decided in a manner that was within her discretion to determine, and she did so. The Master also adequately explained why she made the conclusion that she did.
Costs
[10] The parties exchanged Costs Outlines with each other and myself following submissions. The plaintiffs claimed $5,527.72 inclusive of HST and disbursements on a partial indemnity basis. The defendant’s partial indemnity claim was $3,640.18 on a partial indemnity basis, inclusive of HST. While both parties were partially successful, my conclusion is the plaintiffs should receive a portion of their claim for costs which I would asses at $2,000.00 inclusive of fees, HST and disbursements, payable in any event of the cause.
Mr. Justice G. Dow
Released: February 9, 2018
COURT FILE NO.: CV-13-485765
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF ANTHONY SMALLING, deceased, MARCIA WELCOME, PAUL CAMPBELL, SHANTEL SMALLING, MITCHELLE WELCOME, KNOXINE WELCOME and JARIYAH MCCABE, a minor by his Litigation Guardian, MARCIA WELCOME.
Plaintiffs
– and –
TORONTO COMMUNITY HOUSING CORPORATION, GREENWIN INC. and THE CORPORATION OF THE CITY OF TORONTO
Defendants
REASONS FOR DECISION
Mr. Justice G. Dow
Released: February 9, 2018