Court File and Parties
COURT FILE NO.: CV-13-488173 MOTION HEARD: February 27, 2019 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sharon Cromwell Plaintiff/Moving Party
AND:
Toronto Transit Commission Defendant/Responding Party
BEFORE: Master J. Josefo
COUNSEL: C. Finlay, Counsel for the Moving Party Plaintiff on the Motion Email: cfinlay@bergellaw.com
S. Sargent, Counsel for the Responding Party Defendant on the Motion Email: stephen.sargent@ttc.ca
REASONS FOR DECISION and Order February 28, 2019
Overview of the Facts and the Issue
[1] This motion arises out of the plaintiff’s September 7, 2011 claimed accident while boarding a Toronto Transit Commission (“TTC”) subway train. Following that accident, eventually, litigation ensued. Discoveries were conducted.
[2] The plaintiff asserts that, at discovery, the witness for the TTC, described as a “roaming supervisor”, categorically stated that subway trains will not move if a door is open. Yet the plaintiff claims that a train moving with a door open at least in part caused her injuries on September 7, 2011. The plaintiff also submits that some documentary and other evidence at least in part contradicts that purportedly absolutist assertion of the TTC discovery witness.
[3] Given these purported contradictions, as well as the February 7, 2019 email from the plaintiff’s expert Mr. J. Young, should the plaintiff’s representatives (the expert, perhaps others) be, pursuant to the Notice of Motion, “authorized to conduct non-destructive testing of door function and door closing safety function on an exemplar TTC subway train”? That is primarily the question which I must decide in this motion pursuant to Rule 32 of the Rules of Civil Procedure and the relevant case-law.
[4] The other two issues raised, the need for leave for the plaintiff to bring this motion after the plaintiff served and filed a trial record, and the alleged breach by counsel for the plaintiff of Rule 30.01.01, the “deemed undertaking rule”, were secondary issues. To dispose of these secondary issues, I turn to them first.
Leave Granted to the Plaintiff
[5] The plaintiff argued that, while the trial record had been served, there was neither a trial nor even a pre-trial date yet established. It was submitted that, as there was no prejudice to the defendant, this motion should be determined on its merits. The TTC did not object to leave being granted.
[6] Given that lack of objection (which exemplified a very professional approach), and that it is in the interests of justice that matters be decided on their merits where possible, I grant leave to bring this motion.
The Breach of the Deemed Undertaking Rule (Rule 30.01.01)
[7] The purpose of the Rule is to prevent parties using evidence or information obtained by the discovery process (oral examination, documentary discovery, etc.,) for any purpose except for what is required in the proceeding for and in which the evidence was obtained. This Rule existed long before being codified in the Rules of Civil Procedure.
[8] The evidence on record in this case is that counsel for the plaintiff disclosed a substantive communication which he received from counsel for the TTC, which information I find was provided under the continuing disclosure obligation that typically applies in all litigation. Mr. Sargent therein provided additional information about the subway door and related information, which Mr. Finlay broadcast to other lawyers not involved in this within case.
[9] At the hearing before me, Mr. Finlay acknowledged that, in hindsight, he should not have done what he did. I find that he expressed his sincere regret. It was appropriate, yet still impressive, that he ultimately took responsibility for this action.
[10] Mr. Sargent noted that the TTC did not seek a particular remedy, other than perhaps greater costs. There was, for example, no cross-motion brought. Yet Mr. Sargent also deserves kudos from the Court for accepting Mr. Finlay’s expression of regret and for agreeing to “move on”, focusing on the plaintiff’s request to inspect made under Rule 32.
[11] In litigation, parties can make mistakes or errors in judgement. This was one of them. Yet nobody is fully immune. On this issue, in this case, I find no more needs to be written.
Rule 32.01—Order for Inspection
[12] Pursuant to the Rule, a court may order the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding. In this within matter, I understand the plaintiff to assert that testing an exemplar train to verify or vet the operation of the doors, more specifically, if the train will operate (move forward) with the doors open, is necessary given the above-described factual context and evidentiary dispute.
[13] The plaintiff in his factum submits that such is necessary:
- “…To relieve [the opposite party] of being entirely dependent upon what may be sworn to on an examination for discovery”,
- So the plaintiff is not forced to rely on the property owner (in this case, the TTC) “upon information obtained by examination for discovery or documentary discovery”,
- Because, “only by direct inspection of the property can the other party’s experts properly reach the conclusions that will be necessary for them to present reliable evidence to the court and ‘level the playing field’ between the parties”.
[14] It was also submitted that such inspections are to “further the interests of justice, ensuring that cases are decided on their merits by permitting the assessment of physical conditions, etc., by an engineer…”. In that regard, plaintiff relies on Callis v. Stop 48 Ltd. This is a November 30, 1990 Weekly Court decision of Mr. Justice Potts denying leave to appeal a June 27, 1990 decision of Judge Crossland, which decision allowed the plaintiffs to inspect a “go-kart” involved in an accident. In denying leave, Justice Potts reasoned as follows:
However, the most important reason for allowing the plaintiffs to inspect the go-kart is that the trial court should be informed of the general operating characteristics of the go-kart [emphasis added].
[15] In this within case, however, there is no evidence before me that Mr. Young (the plaintiff’s expert) has any gaps in his understanding of the “general operating characteristics” of the subway door system. Rather, from the evidence it appears that he has quite a good understanding of those general operating characteristics. I have thus no doubt that this expert, along with the expert for the TTC (if one is used), will be well able to inform the trial court of how the subway doors operate.
[16] In his above-referenced February 7, 2019 email, contained within the Responding Affidavit of one of the lawyers for the plaintiff, Lorne Climans, filed (on consent of the TTC) at the motion, Mr. Young makes clear that he still has much of the TTC and other documentation remaining to review. He had not, as of February 7, 2019, yet received from counsel for the plaintiff, let alone reviewed, the discovery transcripts of either the plaintiff or the TTC witness. He also had not completed his review of the manual, which task he describes as “still underway”.
[17] Yet even from his incomplete review of the manual, Mr. Young was still able to offer a series of opinions. As just two examples from his email, Mr. Young describes “numerous bypass systems…that the doors can be opened while the train is running”. He also highlights “specific mention that the doors can be up to ¼ inch open from trapped objects and the green light will still indicate that the door is closed and the train can move forward”.
[18] While enthusiastically noting “there is certainly much to test in terms of these different switches and controls listed”, there is no statement from Mr. Young that, without such an inspection or testing, he is in any way hampered from offering expert evidence to the trier of fact. There is also no evidence that Mr. Young, without an inspection, will not, as the plaintiff’s expert, properly reach the conclusions necessary for him to present reliable evidence to the court and ‘level the playing field’ between the parties, as I paraphrase from the excerpt from the plaintiff’s factum quoted above in these reasons at paragraph 12.
[19] This case is akin to the decision of my colleague Master Muir, in Tan-Jen Ltd v. Di Pede, 2015 ONSC 3685, at paragraph 13. In that case, whilst allowing other experts to inspect, an architect was not allowed to do so given the lack of evidence before the court that such an inspection was required in able for the architect to opine. In this within matter, it appears, again, that Mr. Young is able to understand and opine upon the subway door operation quite well, even though he has not yet read the discovery transcripts so he does not have a complete appreciation of the claimed event from the perspective of both parties.
[20] He also has not yet finished reviewing the documents made available by the defendant to the plaintiff, including the various manuals. Once he has reviewed all the documentation, no doubt his understanding can only be improved and enhanced. Yet at present, there is no evidence that the testing is necessary in order for Mr. Young to opine. Again, from the evidence before me, it would appear to not be a requisite. Rather, again, without this testing he opines quite clearly, even at this preliminary stage prior to the completion of his review of all the evidentiary material.
[21] I am also struck by the very vague and, ultimately, evolving, request of the plaintiff in this case. Initially, it was to insert a shoe or a backpack into a subway door and see if the train will operate (move forward) despite this obstruction. Yet Mr. Young makes no mention of this in his email. Rather, he refers to testing “switches and controls”. There is also no discussion by Mr. Young why the testing of “switches and controls” is required, or what is hoped to be accomplished from performing such tests. Mr. Young is simply silent in that regard.
[22] Given the:
- lack of evidence of how the testing will be done,
- lack of clarity and specificity of what, specifically, will be tested, and,
- uncertainty as to why testing is to be conducted (what it will purportedly reveal),
I am unable to conclude that the vaguely proposed testing is at all “necessary”. Justice Quinn in Peel School District No 19 v. 553518 Ontario Ltd., [2000] O.J. No. 3581 held that, for something to be necessary pursuant to Rule 32.01, it must be “useful” or “probative of an issue”. In this case, based on the evidence as it presently exists, I am highly doubtful that such testing, as has been at times differently (and imprecisely) proposed by the plaintiff, would either be useful or probative. It is thus not necessary.
[23] Finally, the testing of an “exemplar” subway car I find is problematic and also not likely to be probative. Given the passage of years, notwithstanding the speculative comment offered by Mr. Young, there is no reliable evidence that the actual subway car which the plaintiff was attempting to enter on the day in question can be found. There is also no reliable evidence that a different subway car, even one of the same manufacture, would operate in the same fashion as the “incident car” is claimed to have operated. In that regard, I find testing would likely be pointless and a mere fishing expedition.
Other options for consideration by the parties
[24] This motion was, inter alia, about the inspection and testing of subway cars. During oral submissions I observed that, quite possibly, the parties could creatively accomplish their litigation objectives by other, less intrusive and less costly, means. Given that a roaming supervisor was the witness for the TTC at discovery, it may be that this individual had a particular (limited) understanding of the subway cars and how these operate. I am not aware that the plaintiff objected to this individual being a witness. In any event, I certainly do not intend to make any order in that regard absent the parties being able to fully address the issue if such becomes necessary. It is also obvious from the record that the defendant provided much, albeit arguably not all, of its documentation pertaining to the operation of subway cars.
[25] Simply pointing out alternative ways forward,
- it may be that the parties could agree that additional documentation be made available by the defendant for the plaintiff, so that Mr. Young can, if he expresses a particular need or a gap in the materials received to date, review such;
- Rule 31.03(2)(b) provides that a further examination of a corporate representative can occur on consent or with leave of the court. It may be that the parties agree that a different witness, for example, an engineer of the TTC who specializes in the subway door operation, be examined on a second (perhaps time-limited) discovery.
I leave such issues to the parties to hopefully resolve without need to resort further to the court. Yet the parties know their litigation remedies if such are required.
[26] Accordingly, for the reasons set out above, I must dismiss the plaintiff’s motion. I do not order the non-destructive testing of door function and door closing safety function on an exemplar TTC subway train, as sought by the plaintiff.
Costs
[27] Turning to costs, it is usual that the Bill of Costs of the unsuccessful party forms the basis of what that party pays in costs. If not yet done, the parties should thus exchange their respective Bills of Costs.
[28] Absent offers to settle the motion or other unusual circumstances, if the costs are relatively equal, and if the defendants seeks costs, the plaintiff could agree to pay what it proposed that it would receive if successful, or close to that quantum. After all, it trite that if the unsuccessful party expected to receive a certain quantum for costs if successful, then such is the amount which it should pay to the successful party.
[29] Hopefully the parties are able to themselves agree on costs. If, however, the parties cannot agree, they may book a tele-conference with me through my Assistant Trial Coordinator. A few days in advance of that tele-conference call, they may file written submissions of no more than three double-spaced pages, along with their respective Bills of Costs.
(original signed) Master J. Josefo