Court File and Parties

Court File No.: CV-15-00534698 Motion Heard: 20190315 Superior Court of Justice - Ontario

Re: Althea Eldemire, Plaintiff And: The City of Toronto, Defendant

Before: Master B. McAfee

Counsel: C. Lucknauth, Counsel for the Plaintiff S. Rosenbaum, Counsel and S. Zucchi, Student for the Defendant

Heard: March 15, 2019

Reasons for Decision

[1] This is a motion brought by the plaintiff Althea Eldemire (the plaintiff) for answers to undertakings, questions taken under advisement and questions refused on the examination for discovery of a representative of the defendant, the City of Toronto (the defendant) that took place on January 16, 2018.

[2] At the time of the hearing of the motion, five undertakings, four questions taken under advisement and eight refusals remained at issue.

[3] This action arises as a result of an accident that occurred on September 15, 2014. The plaintiff alleges that she was driving on Wilson Avenue and turned left onto Elrose Avenue when the driver’s side front wheel of her vehicle dropped into a large hole in the road causing her to be jolted inside the vehicle. A statement of claim was issued on August 19, 2015, wherein the plaintiff seeks damages in the amount of $1,000,000.

[4] In the statement of defence dated March 8, 2017, the defendant denies that any incident took place as alleged by the plaintiff. The defendant pleads that, if such an incident took place, it was simply an “accident” for which no party is in law responsible. The defendant denies that the place of the accident was in any unsafe condition or state of repair.

[5] In determining the propriety of the questions taken under advisement and refused, I have applied the relevance test stated at Rule 31.06 of the Rules of Civil Procedure, the principles of proportionality set out at Rule 29.2.03 and considered the scope of discovery as summarized by Justice Perell in Ontario v. Rothmans Inc., 2011 ONSC 2505 (Ont. S.C.J.) at para. 129, as cited by Master Champagne, as she then was, in DST Consulting Engineers Inc. v. 2299910 Ontario Inc., 2017 ONSC 1464 (Ont. S.C.J. – Master) at para. 29.

[6] The numbering and question and page references below are taken from the plaintiff’s chart set forth at tab 2 of the supplementary affidavit of Nital Gosai sworn March 5, 2019. What follows are my rulings.

Rulings on Refusals and Questions Under Advisement

[7] Refusal No. 1, Q. 40, P. 12: The defendant objects to this question on the basis that answering this question may prejudice the defendant’s position on a pending motion for leave to examine another representative of the defendant. In the responding chart some information is provided as to why the representative was produced. In my view, when the party to be examined selects the representative, as was done in this case, to ask the reason why the particular representative was selected is not improper. The question shall be answered.

[8] Refusal No. 3, Q. 62, P. 16: The plaintiff asks if it is agreed that the City has a statutory duty to keep the streets safe and in repair. On the motion, the defendant argued that this question calls for a legal conclusion and objected to this question (and Refusal Nos. 8 and 9) on that basis. The defendant relies on Six Nations of the Grand River Indian Band v. Canada (Attorney General) at paras. 1 and 3. I am satisfied that the question is relevant based on the pleadings and in particular based on paragraph 5(a) and (b) of the statement of claim and paragraphs 13, 14 and 24 of the statement of defence. See also the City of Toronto Act, 2006, S.O. c.11, section 42. The application of Six Nations is not limited to complex cases. The question does not ask for a response that is determinative of the ultimate issue (see Six Nations at para. 3). As stated by Campbell J. in Six Nations at para. 10, “…there is a right to discovery with respect to “matters” relevant to the lawsuit, not just “facts”. The question shall be answered.

[9] Refusal No. 4, Q. 94, P. 27: The plaintiff asks for an undertaking for the work practices or best practices or safe work procedures as provided to Northwest Construction. The defendant responds that there are “…70 of them that deal with everything dealing with sewers and watermains and I’m not prepared to give you 70 manuals.” I agree with the position of the defendant on the motion that refusal no. 4 is too broad and need not be answered.

[10] Under Advisement No. 1, Q. 94-95, P. 28-30: The plaintiff then attempted to narrow the scope of Refusal No. 4. The defendant provides evidence that “…there’s a practice on watermain repair. There’s a practice on hydrant replacement. There’s a practice on valve replacement. There’s a practice on water service renewals. There’s a practice on sewer service line repairs. There’s a list of activities that we perform on a daily basis to the underground, to our infrastructure and each one of those has a practice.” The plaintiff seeks production of the practice manuals for the watermain repair, the hydrant replacement, the valve replacement, the water services renewals, the sewer service renewals and any other water practice manual that would be provided to this corporation. At this stage of the proceeding, notwithstanding that the defendant’s position is that the loss was a result of an issue within the sewer line, there has been no determination in that regard. There was construction to the watermains in the vicinity of the accident and the construction is pleaded at paragraphs 5(g), (h) and (i) of the statement of claim (see also Exhibit “B” to the supplementary affidavit of Nital Gosai sworn March 5, 2019). I am satisfied that the practice manuals for watermain repair, water service renewals, the sewer service renewals are relevant based on the pleadings. I am not satisfied that practice manuals for hydrant replacement and valve replacement are relevant to any matters pleaded. The request for any other water practice manual is too broad. The question shall be answered with respect to watermain repair, water service renewals and sewer service renewals only.

[11] Under Advisement No. 2, Q. 95, P. 30-31: I am not satisfied that this question is relevant based on the pleadings. I was not referred to any pleading concerning a lack of proper training. The question need not be answered.

[12] Refusal No. 5, Q. 120, P. 40: I am not satisfied that this question is relevant based on the pleadings. I was not referred to any pleading concerning budgets, repair costs or that any failure to maintain or lack of repair was due to financial constraints. The question need not be answered.

[13] Refusal No. 6, Q. 121, P. 41: I am satisfied that this question is relevant based on the pleadings and in particular based on paragraphs 4, 5(a), (b) and (c) of the statement of claim and paragraphs 13 and 14 of the statement of defence. The plaintiff pleads that the accident was a result of a hole. At this stage in the proceeding there has been no determination of the type of hole or the cause of the hole. The question shall be answered.

[14] Refusal No. 8, Q. 210, P. 68 and Refusal No. 9, Q. 211, P. 68: The defendant objects to the questions on the same basis as refusal no. 4, arguing that the questions call for a legal conclusion. I am satisfied that the questions are relevant based on the pleadings and in particular based on paragraph 5(a)-(i) of the statement of claim and paragraph 11 of the statement of defence. See ruling with respect to refusal no. 4. The questions shall be answered.

[15] Refusal No. 12, Q. 324, P. 107-108: The defendant’s position is that the question was answered on the examination for discovery at page 108 of the transcript. However, the answer provided in the responding chart does not address whether there are any practice directions or manuals. On the motion, defendant’s counsel confirmed that there are no such practice directions or manuals. The question has now been answered based on the representation of defendant’s counsel.

[16] Under Advisement No. 3, Q. 98, P. 31: On the motion, the defendant confirmed that the objection to this question was on the basis of relevancy. I am satisfied that the question is relevant based on the pleadings and in particular based on paragraphs 5(a)-(f) of the statement of claim. The question shall be answered.

[17] Under Advisement No. 4, Q. 264, P. 84: The defendant’s position is that the loss was a result of an issue with the sewer line and that records related to watermain work are irrelevant. At this stage in the proceeding there has been no determination of the cause of the hole. The plaintiff pleads the construction that took place in the vicinity of the accident at paras 5(g), (h) and (i) of the statement of claim. The construction was for watermain replacement (see exhibit B to the supplementary affidavit of Nital Gosai sworn March 5, 2019). I am satisfied that this question is relevant based on the pleadings. The question shall be answered.

Undertakings

[18] Undertaking No. 1, Q. 160, P. 51 and Undertaking No. 10, Q. 319, P. 105: I am satisfied that the questions have been answered. See answers to undertaking nos. 1 and 10 in the responding chart. On the motion, counsel for the defendant also confirmed to the court that there was no second call. The undertakings have been answered.

[19] Undertaking No. 3, Q. 164, P. 54, Undertaking No. 7, Q. 282, P. 88 and Undertaking No. 12, Q. 367, P. 119: During the motion, it was agreed that the defendant would answer these undertakings within 30 days. On consent, an order shall go accordingly.

Costs

[20] With respect to costs of the motion, while each party achieved some success on the contested issues argued, the plaintiff achieved more success than the defendant. No undertakings had been answered before service of the motion record. The retirement of the representative of the defendant does not adequately explain the length of the delay in providing the answers. Some undertakings remain unanswered. The plaintiff served supplementary material shortly before the return of the motion. Some of the supplementary material was not relevant to this motion. The defendant incurred costs responding to the supplementary material that was not relevant to this motion. In all of the circumstances of this motion the plaintiff is entitled to some costs of the motion but not in the amount sought and not payable within 30 days. A fair and reasonable amount that the defendant could expect to pay for costs is the all-inclusive sum of $1,500. payable by the defendant to the plaintiff in the cause.

Master B. McAfee Date: March 25, 2019