Court File and Parties

COURT FILE NO.: CV-16-57741

DATE: 2018/11/23

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Larysa Yakub, Plaintiff

AND

Wal-Mart Canada Corp. and Wal-Mart Stores Inc., Defendants

BEFORE: Justice M. O’Bonsawin

COUNSEL: Christopher A. Obagi for the Plaintiff

Joël M. Dubois for the Defendants

HEARD: November 23, 2018

ENDORSEMENT

Overview

[1] This personal injury action arises out of a slip and fall that occurred on March 10, 2014, at the Supercentre Wal-Mart Ottawa which is controlled by Wal-Mart Canada Corp.

[2] Pursuant to Rule 31.03(2)(a) of the Rules of Civil Procedure, Ms. Yakub is entitled to examine any officer, director or employee of the corporate Defendant, Wal-Mart. She has elected to examine Ms. C., the Store Manager present at the time of the alleged fall. Ms. C. authored the Customer Incident Report and the First Aid Report. Wal-Mart has refused to produce Ms. C. for examination for discovery citing that she is on medical leave from the store.

[3] Wal-Mart has provided Dr. Canil’s letter dated November 9, 2018. She is a medical oncologist with the Ottawa Hospital Cancer Centre. Dr. Canil advises that Ms. C. has been diagnosed with metastatic renal cell carcinoma to the liver and adrenal glands. In addition, Dr. Canil advises as follows:

Over the years [Mrs. C.] has had treatment with extensive surgeries, radiation therapy and several different drug therapies for this disease. Due to recent progression of the cancer, she has started a third line systemic treatment at our cancer centre with immunotherapy. Unfortunately, this is an incurable cancer.

Ms. [C.] has had multiple complications requiring admissions to hospital over the summer. As a result of the symptoms of cancer and the side effects of treatment, she is extremely fatigued and nauseated. This may result in difficulty concentrating and recalling events. In addition, we anticipate further side effects will arise in the upcoming months due to her new therapy. I do not feel that Ms. [C.] is medically fit to attend for discovery. Given the terminal nature of her disease and limited prognosis, it is important that [she] focuses her limited energy on fighting her cancer. As her condition will deteriorate over time, it will be very unlikely that she will be well enough to attend in the next 12 months.

Analysis

[4] Ms. Yakub refers me to Farris v. Staubech Ontario Inc., [2004] O.J. No. 3961, (Ont Sup Ct), in which Master Hawkins confirms that the examining party has the right to select the officer, director or employee to be examined on behalf of a corporation. If the latter wishes someone else to be examined, the onus shifts to the corporation to show the reason that the selection made is inappropriate. “The court will not lightly interfere with the choice the examining party has made” (Farris, para. 2).

[5] The burden required to overturn the examining party’s choice of representative is a heavy one. It is the role of the examining party, not the Court, to decide who is the best corporate representative. Once the examining party has invoked its prima facie right to select any officer, director or employee to be examined on behalf of the corporate party, the Court should not substitute its own opinion on the merits of a selected representative (DeSousa v. Aviva Insurance Co. of Canada, 2013 ONSC 185 at para. 7; MacRae v. Santa, 2003 ONSC 3937 at para. 10; Cineplex Odeon Corp. v. Toronto Star Newspapers Ltd., [1986] O.J. No. 2584 at para. 7).

[6] There are rare cases where the witness may be substituted for another. However, the threshold in these situations is high. Pierce J. confirmed this notion in MacRae when he discussed avoiding examination for discovery based on medical grounds. He stated as follows:

There is a heavy onus on a litigant seeking to avoid examination for discovery on medical grounds to satisfy the court of those grounds. In G.C.C. Limited v. Thunder Bay (City) (1980), 16 C.P.C. 15 (Ont. Master), Master Sandler, having reviewed the medical evidence related to an officer of a corporation named in an appointment for discovery, noted at page 17:

The onus that a litigant has to avoid examination for discovery based upon ill health, is a heavy one, as it is all too easy to subvert the course of justice by using this excuse, and a Court must be satisfied that a clear case has been made out before it relieves a litigant of his obligation to submit to discovery or otherwise testify, on the grounds of ill health.

[7] I agree with Ms. Yakub that there is a particularly heavy onus on Wal-Mart seeking to exempt Ms. C. for medical reasons. The Court must be satisfied that a clear case has been made out prior to relieving Ms. C. of the obligation to undergo examination for discovery. In MacRae, the City Solicitor made a bald statement that the witness should be discharged on medical grounds. This is not the case in this matter. Ms. C. suffers from terminal cancer. Dr. Canil is clear in her letter dated very recently that Ms. C. is not medically fit to attend examination for discovery. I find this evidence sufficient to support Wal-Mart’s request that Ms. C. not attend examination for discovery.

Conclusion

[8] Based on my reasons above, I dismiss Ms. Yakub’s motion seeking an Order compelling the attendance of Ms. C. at examination for discovery on behalf of the Defendant, Wal-Mart Canada Corp.

Costs

[9] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA) at 302 [Boucher]). The amount awarded is intended to be fair and reasonable for the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher at paras. 24, 26).

[10] The Court has discretion to award costs pursuant to s. 131 of the Courts of Justice Act, and Rule 57.01 of the Rules (Goldman v. Weinberg, 2017 ONSC 4743 at para. 4 (citing Chandra v. CBC, 2015 ONSC 6519)). Rule 57.01(1) sets out a number of factors to be considered in determining costs.

[11] Parties often argue that costs should follow the event. This was confirmed in Schreiber v. Mulroney, 2007 CanLII 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para. 2. Substantial indemnity costs are the exception to the rule.

[12] I have taken into consideration the factors in Rule 57.01(1), for example, the matter was not complex, the issue was important to Wal-Mart and the fact that I did not conclude that the conduct of the parties were inappropriate. Consequently, I exercise my discretion and order Ms. Yakub to pay Wal-Mart its reasonable costs in the amount of $2,337.41 inclusive of fees, disbursements and HST) within 30 days of this Endorsement.

Justice M. O’Bonsawin

Date: November 23, 2018

COURT FILE NO.: CV-16-57741

DATE: 2018/11/23

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Larysa Yakub, Plaintiff

AND

Wal-Mart Canada Corp. and Wal-Mart Stores Inc., Defendants

BEFORE: Justice M. O’Bonsawin

COUNSEL: Christopher A. Obagi for the Plaintiff

Joël M. Dubois for the Defendants

ENDORSEMENT

Justice M. O’Bonsawin

Released: November 23, 2018