Court File and Parties

COURT FILE NO.: CV-16-550371

MOTION HEARD: 20180205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cuong Mach, Plaintiff

AND:

Viviana Barmasch and Ezequiel Barmasch, Defendants

BEFORE: Master B. McAfee

COUNSEL: Tiziana Serpa, Counsel for the Moving Parties, the Defendants

Tanis Lorain Bolt, Counsel for the Responding Party, the Plaintiff

HEARD: February 5, 2018

REASONS FOR DECISION

[1] This is a motion brought by the defendants for various relief. The parties have resolved many issues as set out in a handwritten consent that I have marked as Appendix “A.” An order shall go in accordance with the handwritten consent marked as Appendix “A.”

[2] The relief that remained at issue at the outset of the hearing was answers to undertakings (5) and refusals (8) arising from the examination of the plaintiff that occurred on January 26, 2017, re-attendance on examination for discovery and costs. Some of the relief that remained at issue was resolved during argument as set out below.

Undertakings

[3] The undertakings that remained at issue at the outset of the hearing set out in the defendants’ Amended Schedule “A” Form 37C Chart as Q. 724, Q. 999 (only with respect to A & W Pharmacy), Q. 1094, Q. 1107 and Q. 1133 given on the examination for discovery of the plaintiff.

[4] The only issue is whether the defendants ought to be required to pay to the plaintiff the cost of obtaining the records before the records are provided to the defendants. It is defendants’ position that they are not required to pay for the records. It is the plaintiff’s position that the defendants ought to pay to the plaintiff the cost of obtaining the records before they are produced.

[5] I was not referred to any evidence in the transcript or elsewhere indicating that the defendants agreed to pay for the cost of production of the records. There is no discovery plan wherein the issue of payment has been addressed. There being no agreement to the contrary, the defendants are not required to bear the cost of production at this stage. At the end of the day, payment of these disbursements can be revisited and are subject to the discretion of the trial Judge (Popovski v. Timbercreek Asset Management Inc., [2016] O.J. No. 4541 (Master) at para. 11, citing Demiroglu v. Kwarteng, [1998] O.J. No. 4472 (Master); affirmed, [1999] O.J. No. 3117 (S.C.J.); affirmed, [2000] O.J. No. 4526 (Div.Ct.)).

[6] These undertakings shall be answered. The defendants need not pay the cost of production at this stage. The issue of the cost of production can be revisited at the end of the day, subject to the discretion of the trial Judge.

Refusals

[7] The refusals that remained at issue are set out in the defendants’ Amended Schedule “B” Form 37C Chart as Q. 1111, Q. 1164, second full question on page 2, third full question on page 2, second full question on page 3, third full question on page 3, first full question on page 4 and second full question on page 4.

[8] Q. 1111 is a refusal to re-attend on examination for discovery. On the motion, the parties agreed that after the defendants are in receipt of the outstanding records and after the defendants have reviewed those records, if the defendants still seek a re-attendance, the plaintiff will agree to re-attend. However, the parties did not agree on who pays the cost of the re-attendance. At this stage I am not satisfied that the plaintiff should bear the cost of re-attendance as requested by the defendants. The plaintiff has already been examined for approximately 9 hours. The parties shall bear their own costs in the normal course. The cost of any re-attendance can be revisited at the end of the day, subject to the discretion of the trial Judge.

[9] With respect to Q. 1164, on the motion the parties agreed that the plaintiff will answer all further questions pertaining to his wife limited to psychological, pre-accident issues.

[10] With respect to the second and third full question on page 2, on the motion the parties agreed that the questions are limited to the 2011 injury (not 2014). The plaintiff agrees to answer the questions, subject to the prepayment by the defendants of the cost of obtaining the records. My ruling set out at paragraph 6 above applies.

[11] With respect to the second full question on page 3, the only issue is the cost of production of the records. My ruling set out at paragraph 6 above applies.

[12] With respect to the third full question on page 3, on the motion the plaintiff agreed to answer the question. There is no issue of the cost of production of the records.

[13] With respect to the first full question on page 4, I am satisfied that the question is relevant based on the pleadings and in particular based on paragraph 9 of the statement of claim. The question shall be answered.

[14] With respect to the second full question on page 4, on the motion the parties agreed that the plaintiff would make best efforts to answer the question only after a defence medical examination has been scheduled before a psychologist.

Re-Attendance

[15] See ruling with respect to Q. 1111 above.

Costs

[16] The defendants seek costs of the motion in the all-inclusive sum of $5,872.37. The parties resolved many of the matters at issue. The contested issue of payment of records and the refusal at the first full question on page 4 were determined in favour of the defendants. The contested issue of the cost of any re-attendance was determined in favour of the plaintiff.

[17] In my view the amount sought is too high. The amount sought also includes disbursements in the amount of $1,910.56 including transcripts. The specific amount for the transcripts is not set out. In my view the defendants ought to bear the cost of obtaining the transcripts at this stage, subject to being revisited at the end of the day and subject to the discretion of the trial Judge. The trial Judge will be in the best position to determine what use was made of the transcripts during the action including trial.

[18] Having regard to all of the circumstances of this motion, the defendants are entitled to costs. A fair and reasonable amount that the plaintiff could expect to pay for costs is the all-inclusive amount of $2,000.00. I am satisfied that payment other than within 30 days is more just. The costs are payable by the plaintiff to the defendants in the cause.

Master B. McAfee

Date: February 6, 2018