Court File and Parties
COURT FILE NO.: 17-086 DATE: 2019/05/07 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KENNETH JOHN REKOWSKI by his litigation guardian KAREEN REKOWSKI, KAREEN REKOWSKI and IRENE REKOWSKI, Plaintiffs
AND:
CORPORATION OF THE COUNTY OF RENFREW, STEVE BOLAND, WADE PATERSON, KEITH PRICE, NICK ECKFORD, CONSTANCE MARY ELLAH and ROBERT ELLAH, Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Thomas P. Connolly & Adam J. Aldersley for the plaintiffs John Lundrigan & Heather Mason, for the Renfrew County defendants Tara L. Lemke, for the Ellah defendants Peter J. Sammon, for Theresa Yakabuskie
HEARD: April 24 & 25, 2019
Endorsement
[1] On January 3rd, 2009, there was a serious motor vehicle accident on Magnesium Road (County Rd. 48) in Renfrew County. The plaintiff, Kenneth Rekowski, was the driver of one of the vehicles. According to the pleadings, he suffered numerous injuries, including a catastrophic brain injury.
[2] In this action, commenced on September 11th, 2017, the plaintiff seeks damages from the driver of the other vehicle and from the County of Renfrew. The accident took place in winter conditions and the plaintiff alleges the County had failed in its duty to maintain the road to the standard required by s. 44 of the Municipal Act, 2001 [1]. The plaintiffs claim damages of $18,000,000.00 primarily due to the cost of long term care.
[3] This action was commenced over eight years after the accident. Not surprisingly, the County is defending it not only on the merits but also on the basis that the action is statute barred. The County had no notice that it was implicated in the accident or was likely to be sued. As I will discuss, there had been other litigation and insurance claims but none involving the County. The facts leading up to the instigation of this action are therefore unusual and have given rise to issues relating to the proper scope of production and discovery.
[4] Two motions came on for hearing before me in Pembroke. The first was an omnibus motion brought by the County for various heads of relief including summary judgment dismissing the action against the municipal employees. [2] Much of the motion was resolved on consent but argument proceeded on the sufficiency of documentary production. Because of the previous litigation, the motion raises issues about the scope of the deemed undertaking rule, privilege and the form of affidavits of documents in cases involving large numbers of documents.
[5] The second motion was a motion by the plaintiffs in respect of undertakings and refusals. Again, the question is the scope of production and the ambit of relevance.
[6] There is some urgency to my decision due to upcoming discoveries. I advised counsel I would release written reasons and attempt to provide a template for resolution of further discovery disputes.
Issue No. 1: The Limitation Defence and the Relevance of the Previous Litigation
[7] As mentioned above, the accident occurred in 2009. Kenneth Rekowski was the driver of one of the vehicles involved in the collision. His mother was the owner. The other vehicle was driven by the defendant Constance Ellah. Theresa Yakabuskie (Herron) was a passenger in that vehicle. All of the individuals involved in the accident sustained injuries.
[8] Both Ms. Ellah and Ms. Yakabuskie suffered injury in the accident and they both commenced litigation in 2011. Ellah was represented by Brenda Hollingsworth and sued the Rekowski’s. [3] Yakabuskie and her husband were represented by Peter Sammon. They sued the Ellah’s and the Rekowski’s. [4] The Ellah defendants were represented by Jaye Hooper at Williams Litigation. The Rekowski’s were represented by Kevin Nearing at BLG. Those actions were settled in 2014.
[9] The 2011 actions and the resolution of those actions raise a number of questions which counsel for the County wishes to explore. Firstly, there was no suggestion in any of the original actions that road conditions played a role. Although Connie Ellah sued the Rekowski’s and the Ellah’s and Rekowski’s cross-claimed against each other, no one third partied the County. Nowhere in any of the pleadings were there any assertions that winter road conditions were to blame. None of the parties implicated the County at that time.
[10] Secondly, the pleadings in the present action state that Mr. Rekowski has been hospitalized continuously since the accident. Yet Mr. Rekowski as a defendant and a plaintiff by crossclaim was not represented by a litigation guardian in the earlier litigation. The consents to dismissal of the actions against him state that they “do not affect the interests of any party under disability”.
[11] Mr. Lundrigan wishes to determine if the conduct of the 2011 actions and their subsequent resolution means that Mr. Rekowski was not under a disability. Alternatively, if Mr. Rekowski could never have instructed counsel then Mr. Lundrigan wishes to explore whether Mr. Rekowski was represented by a de facto litigation guardian. In addition, Mr. Lundrigan wishes to know if any of the releases signed by parties in the original actions bar rights of recovery or indemnity in the current proceeding.
[12] Although the Rekowski’s were defendants in the 2011 actions and did not at that time commence their own proceedings, Mr. Rekowski was in receipt of Statutory Accident Benefits from his own insurer. There was never a legal proceeding in connection with the SAB’s but Mr. Rekowski was represented by a lawyer, Derek Griffiths. Mr. Griffiths retained a file which includes correspondence and reports from the accident benefit insurer. Someone must have been instructing Mr. Griffiths on behalf of Mr. Rekowski. His mother, Irene Rekowski, held a power of attorney for property and for personal care which pre-dated the accident.
[13] Mr. Connolly was retained by the Rekowski’s in 2012 but he did not put the County on notice of a claim or commence a legal proceeding. Instead he began an investigation which included a number of requests for information under the Municipal Freedom of Information and Protection of Privacy Act [5]. It was not until September 6th, 2017 that Mr. Connolly wrote a letter purporting to put the County on notice of a claim pursuant to s. 44 (10) of the Municipal Act. On September 11th, 2017 this action was commenced with Kareen Rekowski named as litigation guardian. The affidavit of the litigation guardian had been sworn on August 28th, 2017.
[14] S. 44 (10) of the Municipal Act requires notice of a claim within 10 days of the injury occurring unless pursuant to subsection (12) a judge finds there is a reasonable excuse for the delay and finds that the municipality is not prejudiced in its defence. The County contends that this notice was far too late. Pursuant to the statute, the reasonableness of the delay will be an issue and no doubt the factors that normally apply to “discoverability” will form part of the analysis. [6] Accordingly the defendant wishes to understand what information was available to Mr. Rekowski and his counsel at different points in time.
[15] Of course the major questions around the issues of mental capacity and litigation guardian relate to the limitation period under the Limitations Act, 2002 [7]. The Act bars any action which is commenced more than two years after the date of an accident unless the person suffering the injury can show that he or she could not reasonably have appreciated he or she had a cause of action and a legal proceeding would be appropriate before a later date. [8] In the latter case, the limitation period runs from the time when these facts were or ought to have been discovered (“the date of discovery”).
[16] Regardless of the date of discovery, the limitation period does not run during any time when a plaintiff “is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition and is not represented by a litigation guardian in relation to the claim”. The onus is on the plaintiff to prove such a disability. [9] In this matter, the plaintiff contends that he has been under a mental incapacity since the date of the accident. If proven, his incapacity might also provide a reasonable explanation for not giving notice to the municipality. [10]
[17] Read literally, the Limitations Act permits counsel representing a party in these circumstances to delay the running of the limitation period indefinitely. The limitation period does not run against a person under disability until a litigation guardian is appointed. The Act does provide a safeguard insofar as potential defendants may trigger the running of the limitation period themselves by bringing their own motion to appoint a litigation guardian. Thereafter, the limitation period runs as if the litigation guardian is the plaintiff. [11] Naturally a potential defendant must be aware of the potential claim to take advantage of this provision of the Act. In this case, the litigation guardian was only appointed when the litigation was commenced.
[18] Counsel for the County wishes to make the argument that in reality the plaintiff had a litigation guardian at an earlier date. In Azzeh v. Legendre, supra., the Court of Appeal rejected a technical argument that the limitation period had not started to run because the litigation guardian had not filed the affidavit required by Rule 7 of the Rules of Civil Procedure [12]. In that case an action had been started in the name of a litigation guardian, but the necessary affidavit had not been filed. The failure to file an affidavit was held to be an irregularity and the limitation period was held to run from the date when the action was commenced.
[19] Although the Court of Appeal found that an irregularity in appointing the litigation guardian did not delay the start of the limitation period once an action purporting to name a litigation guardian was started, the court was not prepared to interpret the Limitations Act as capturing less formal steps. The Court of Appeal rejected the argument that actions taken before the claim was started such as pursuing accident benefits without commencing a court action could start the limitation period. This was despite the fact that the person eventually appointed as litigation guardian had been involved in making the claim for accident benefits and had styled herself as the plaintiff’s “guardian.”
[20] In summary, the Azzeh case stands as authority that commencing an action in the name of a litigation guardian will satisfy the requirements of the Act even if the appointment is irregular. On the other hand, the case holds that simply engaging counsel or even pursuing accident benefits on behalf of the plaintiff will be insufficient to end the tolling of the limitation period. [13]
[21] A similar conclusion was reached by Beaudoin J. in Siddiqui v. Saint Francis Xavier High School [14]. This was a summary judgment motion in which the school board had been put on notice of a claim in 2013 following an accident at hockey tryouts. In the notice letter, counsel for the plaintiff had identified the plaintiff’s father as the plaintiff’s litigation guardian. It was not until 2017 that an action was actually commenced, and the affidavit of litigation guardian was filed. The court concluded that s. 9 of the Act cannot “be interpreted in such an informal manner as to negate the protections for minors available under law”. Beaudoin J. concluded that it was only when a litigation guardian was appointed by the court, or as in Azzeh when the court accepted a pleading naming a litigation guardian that the section was satisfied and the limitation period began to run.
[22] I am not being asked to decide the limitations defence but only to determine the scope of relevance in relation to the requests for documentary production. The plaintiff views these cases as a complete answer to the limitations defences and it is possible this will turn out to be correct. [15] But it is not my role on this motion to decide whether or not the limitation defence will succeed. The question before me is whether the evidence necessary for the defendant to make the argument is relevant given the state of the jurisprudence.
[23] There are cases in which the law is so clear that evidence can be said to be irrelevant if its only purpose could be to pursue a fruitless argument. In such a case, it may be possible to strike the pleading under Rule 25.11 in advance of production and discovery. This is not such a case. The defences are pleaded and it is impossible to say that these defences cannot succeed under any circumstances.
[24] The Azzeh decision was an appeal of a pleadings amendment motion. Siddiqui was a summary judgment motion. In Azzeh there was a dissenting judgment. The last word may not be written on this question. Moreover, the Sidiqqui case relates to a minor plaintiff and not to a plaintiff under a physical or mental disability. There is a difference. Minor plaintiffs are dealt with in s. 6 of the Limitations Act whereas “incapable persons” are dealt with in s. 7. The incapacity in question must be incapacity to “commence a proceeding” which is a more nuanced and fact specific finding. There are situations in which a person may be disabled from attending to personal care or incapable of managing property but not be disabled from instructing counsel.
[25] Azzeh is authority that a litigation guardian may not toll the running of the limitation period simply by failing to take procedural steps that are in her control. [16] The case is also authority that appointing a litigation guardian for any claim arising from the accident will start the limitation period running. The court rejected the concept that the litigation guardian must be appointed in respect of a precise claim against that specific defendant before that defendant may benefit from the running of the limitation period. Appointing a litigation guardian to pursue any claim arising from the accident will suffice. [17]
[26] The issue on this motion is whether the County is entitled to access the evidence it may need to advance its argument. I am not able to conclude that these two cases so completely shut the door to the argument Mr. Lundrigan seeks to advance that the evidence he seeks is irrelevant. The County is entitled to explore the question of whether or not Mr. Rekowski’s capacity was considered in the original litigation or whether he was represented by a de facto litigation guardian. The County is also entitled to know if releases were signed which restrict the rights of any of the current litigants. The County is certainly entitled to request any evidence relating to the present claims which was preserved in the earlier litigation.
Issue No. 2: Privilege and the Deemed Undertaking
[27] With respect to the files and the previous litigation, relevance is only part of the equation. There are also considerations of privilege, proportionality and the deemed undertaking. The files of previous lawyers may contain evidence that is not subject to any privilege, but they will also contain correspondence and other documents variously subject to solicitor client privilege, litigation privilege and settlement privilege. There is also the question of the deemed undertaking and who is the beneficiary of that undertaking in each case. The holder of the privilege and the beneficiary of the deemed undertaking is different in each of these files.
[28] I am of the view that the files of Mr. Griffiths, Mr. Nearing, Ms. Hooper and Mr. Sammon are relevant to this litigation. Obviously. any evidence preserved in those files touching on the road conditions, the mechanics of the accident and the injuries sustained by the parties will be relevant. I also agree with the defendant that correspondence or other documents identifying whether or not Mr. Rekowski was perceived as being under a disability and who was instructing counsel on his behalf are relevant to the defence as pleaded.
[29] I do not agree with the submissions of counsel for Ellah that no evidence relating to damages is relevant. There would be no relevance to quantification of Ellah or Yakabuskie’s wage loss or housekeeping claims but there would be relevance to the injuries that were sustained and how serious they were. Generally speaking these files relate to litigation about this accident involving most of the same parties. There is therefore prima facie relevance to the files and I would put the onus on those resisting production to justify what is being withheld.
[30] The deemed undertaking should not be a bar to production of the files for the purpose of this litigation. In the first place it is litigation arising from the same set of facts and involving most of the same parties. The purpose of the deemed undertaking rule is to protect a party which is compelled to give evidence or produce documents against subsequent use of that information in a different proceeding.
[31] I understand that the Rekowski’s may not have been examined for discovery in the 2011 proceedings but if they were then they cannot hide behind the deemed undertaking when they subsequently commence an action as plaintiffs. Any discovery or production made by the Rekowski’s in the 2011 action should be available in this action.
[32] Similarly, in this action the Ellah’s are parties and are asserting cross-claims. Any production or discovery of the Ellah’s in the 2011 actions should be available in the present proceeding. The deemed undertaking should not be used as a shield in what is essentially a continuation of the same dispute arising out of the same set of facts.
[33] Only the Yakabuskie’s would be beneficiaries of the deemed undertaking rule and are not parties in the current action. They did not file material in opposition to this motion and when Mr. Sammon appeared, it was only to advise the court that his clients were not taking any position on the motion. The Yakabuskie’s may well be witnesses in this proceeding. There is no good reason that their discovery evidence from the earlier proceeding should not be available to counsel in the present proceeding.
[34] In summary, I have no hesitation in lifting the deemed undertaking for purposes of this proceeding. That alone, should not be a bar to production of evidence in the hands of any of the previous counsel. Privilege is more complex.
[35] The first question is who has possession, power or control over the original file? This determines who has the obligation to obtain the file, to review it and to include the contents in the affidavit of documents. Clearly, he plaintiffs have power over Mr. Nearing’s file. BLG acted for the Rekowski’s as defendants. Any continuing privilege in the file is a privilege for the benefit of the clients. The plaintiffs are therefore entitled to the entire file or at least so much of the file as any client would be entitled to demand. I understand those files have just been retrieved by BLG and should be available shortly.
[36] It is the obligation of the plaintiffs to produce the files or to properly assert privilege. Accordingly, the documents are to be listed in the appropriate schedule after the files have been retrieved and reviewed.
[37] This is also true of the Griffiths accident benefit file. Mr. Griffiths was advising the Rekowski’s and assisting with the claim for accident benefits. His file is within the power of the plaintiffs and is to be produced subject to proper claims of privilege.
[38] The Ellah file is in the possession, power or control of the Ellah’s. Ms. Hooper was at Williams litigation when she acted for the Ellah’s and Ms. Lemke is at that firm now. Whether the law firm has the file or Ms. Hooper has the file, the Ellah’s are entitled to it. Thus, the obligation to review and produce the file and to determine what claims of privilege to assert, if any, lie with the Ellah’s.
[39] The Yakabuskie’s are not parties to the current litigation. Mr. Sammon in advising that his clients take no position on production of the file, nevertheless advised that he would expect the court to respect questions of privilege. Mr. Sammon has the file and is the guardian of privilege. The Yakabuskie’s did not file material in opposition to the motion and Mr. Sammon did not remain in attendance to present any argument. Accordingly, the Yakabuskie file is to be produced to counsel for the County pursuant to the motion but if the Yakabuskie’s wish to assert continuing privilege over any portion of the contents of the file, Mr. Sammon is to provide a list of what has been retained and the basis of the privilege.
[40] Since the Yakabuskie file will be produced to counsel for the County pursuant to this motion, it will be the County that then has possession of the file and will be obligated to list the contents in a supplementary affidavit of documents.
[41] The contents of the litigation files may be subject to one or more of the following classes of privilege: solicitor client privilege; litigation privilege; and, settlement privilege. Only once it is apparent which forms of privilege are being asserted and over what will it be possible to rule definitively on whether or not the privilege has been waived or must yield to the interests of justice.
[42] Privilege may be waived either explicitly or implicitly. One simple and proportionate way of dealing with the previous files would be to make all of the files available for inspection by all counsel. This may avoid much quibbling and suspicion and avoid the need for future motions. On the other hand, there may be information that is relevant and is prejudicial to the party asserting the privilege and over which privilege continues.
[43] Solicitor client privilege is a durable privilege and is the least likely to yield to the needs of subsequent litigation. This is because the ability of a client to obtain confidential legal advice is at the heart of the justice system and in Canada it has hardened into a quasi-constitutional substantive right. [18] I cannot rule on the existence of that privilege or whether it has been waived without specific knowledge of what is in the file. If there are documents subject to this privilege, they should be listed in Schedule B of the Affidavit of Documents.
[44] Litigation privilege exists to preserve a zone of privacy for the benefit of parties in our adversarial system. It is not a durable privilege in that it comes to an end when the litigation ends but it is durable insofar as it persists during the original action and any related disputes. [19] As the parties continue to be involved in disputes arising from the same accident, litigation privilege would continue to operate during this subsequent litigation. This will be true even for the Yakabuskie because while they are not currently named as parties in this litigation, it is not impossible for them to be drawn into it. Again, it is premature to rule on the existence of the privilege or the extent to which it may have been waived over portions of the file without knowing specifically over what the privilege is claimed. Thus, it will be necessary to prepare detailed Schedules B to the affidavits of documents.
[45] As all parties are aware, settlement documents are presumptively privileged including the ultimate minutes of settlement. [20] Releases are another matter. Releases signed to implement a settlement are intended to be a bar to subsequent litigation. In my view releases are not subject to settlement privilege and they are relevant particularly if they affect the right of any of these parties to advance claims. Releases are to be produced. It is not necessary to disclose the amount of the settlements if that is set out in the release documents. If there are other documents which are relevant to this proceeding and over which settlement privilege is asserted, then those documents are to be listed in Schedule B.
Issue No. 3: Form and Function of the Affidavit of Documents
[46] The issue here is the sufficiency of Schedules A, B and C of the Affidavit of Documents and various supplementary affidavits of documents. This is intertwined with the questions discussed above because the defendant is demanding that the contents of Mr. Griffiths file be included in the appropriate schedule and also that communication relating to the retainer of Mr. Griffiths and subsequently of Connolly, Obagi be disclosed.
[47] Unfortunately, this issue is also intertwined with questions of efficacy, proportionality, discovery planning and the Sedona Canada Principles [21] due to the sheer volume of documents. I am advised for example that the hospital chart exceeds 5,000 pages. I am also advised that these pages have all been assigned unique “bates numbers” and are available electronically.
[48] No one is suggesting that it would be useful to prepare a printed index of the hospital chart and include it in Schedule A but the defendant does object to certain other categories of documents being clumped together in the schedule. There is no doubt that the rules require each party to “list and describe, in separate schedules, every document relevant to any matter in issue in the action.” Which “are or were in the possession, power or control of each party”. [22] The question is whether that is a useful exercise or whether the parties or the court can devise a better system that will serve the parties and the interests of justice more effectively in the circumstances of this particular case.
[49] On that point, the best I can do is point to some general principles. There is no doubt that the rules require an index of documents be prepared and itemized in the appropriate schedule of the affidavit of documents. This requirement which was devised for a paper-based world and manageable quantities of documents is of questionable utility when dealing with vast numbers of electronic documents. This issue was foreshadowed by Justice Lane in the Solid Waste Reclamation Inc. v. Philip Enterprises Inc. case almost 20 years ago. [23] Various attempts have been made to address the problem since then. These include various reforms to the discovery rules including more focused discovery and the requirement for discovery planning [24], the Sedona Canada Principles and the work of the E-discovery Implementation Committee. [25]
[50] I am advised that counsel have a discovery plan and have been working co-operatively. I certainly encourage them to continue to do so and I would discourage them from ever printing thousands of pages of documents just to bring to court. The parties owe it to each other, to themselves and to the administration of justice to agree on which documents are key, to devise a system for the instant identification and retrieval of documents and to take the steps necessary to request an electronic trial if that is appropriate.
[51] I am reluctant to wade into the question of itemization of Schedule A before the parties have made further efforts in this regard and without a better understanding of how the documents are organized. This may be an issue better managed at a case conference than at a motion. Alternatives to the standard Affidavit of Documents are possible. There is no reason the schedules themselves cannot be available in searchable electronic form perhaps hyperlinked to the electronic versions of the productions. However, it is done, the opposing party is entitled to appropriate disclosure identifying all of the documents with sufficient precision to fulfil the objective of the Rule.
[52] Any alternative to the prescribed form must be adequate to the task and must be approached in good faith. Volume and proportionality cannot be used as an excuse for failing to do the difficult and tedious work of winkling out the probative documents and cannot be used as a “document dump” to inflict work on the other party or to conceal the “needle in a haystack” if such exists. Different judges have taken different approaches to this question in the absence of an agreement between counsel. The parties will be infinitely better off if they can present a joint plan of document management to the court than if compliance with the rules must be determined in an adversarial setting. [26]
Issue No. 4: Cross-examination on the Affidavit of Documents
[53] A tactical question in litigation is often whether to proceed with discovery before all potential documents are unearthed. Questions about the adequacy of documentary production are perfectly appropriate discovery questions and Rule 31.06 specifically permits cross examination on the affidavit of documents. No leave is required for this and it is almost always the case that discoveries result in production of further documents.
[54] The problem with this approach is twofold. Firstly, under the current rules, discovery is supposed to be more focused and time limited. There is a risk in using up the time allocated for discoveries in chasing documentary production. More significantly, even if time is likely to be extended where there has been inadequate production, this approach is inefficient and costly. Proceeding prematurely will almost inevitably result in numerous undertakings and a subsequent round of discoveries once those documents are available.
[55] Rule 30.06 permits the court to order freestanding cross examination on the affidavit of documents, where the court is satisfied by any evidence that relevant documents have been omitted or claims or privilege may have been made improperly. Traditionally, this rule could only be invoked where there was clear proof that documents had been omitted. The order would not be granted just because a party believed that there must be more documents. With the advent of mandatory discovery plans, narrowed discovery and the availability of case management, a more tailored and nuanced approach may be appropriate. [27] Nevertheless, it remains with the party whose responsibility it is to make production to make the first cut at doing so and this can be tested during the discovery process. [28] A party that fails to take its obligation seriously may then have to bear the consequences of a further round of discovery or adverse findings on a motion.
[56] Finding mutually convenient dates for discoveries is difficult enough without adding rounds of cross examination in advance if that is not demonstrably more efficient. The litigation guardian will shortly be examined as will Irene Rekowski. An order is not required to cross examine on the affidavit of documents and in fact many of the requests for production may be better addressed through focused discovery questions. It is more efficient to grant additional time for discovery than to order free standing cross examination in advance of that date.
[57] If counsel cannot agree on the time required for discoveries then the minimum time provided in the rule will be extended by one hour. This is not a bar to seeking additional time from the court should that be required.
Issue No. 5: Summary Judgment
[58] The plaintiff has conceded there is no basis for keeping the individual municipal employees in the action. On consent, there will be and order dismissing the action against the named County employees.
Issue No. 6: Requests for third party production
[59] At the request of the moving party, the motions for production of the OPP file and for production of the State Farm accident benefits files are adjourned.
Conclusion & Order in relation to the main motion
[60] In summary, the files from the 2011 litigation are prima facie relevant to the issues in this litigation subject to proper claims of privilege. Settlement privilege does not apply to the releases, if any, but does apply to the minutes of settlement. Rulings on whether solicitor client privilege, litigation privilege or settlement privilege cannot appropriately be made until such privilege is properly asserted. As counsel for the plaintiff and counsel for Ellah have not yet obtained those files or reviewed them or provided disclosure through appropriate schedules in the affidavit of documents, they must attend to this matter as soon as possible.
[61] The current affidavits of documents are apparently deficient because they clump together categories of documents in Schedule A and do not contain precise descriptions of claims for privilege and what it is that the privilege attaches to in Schedule B. The court would support an alternative approach to the affidavit of documents if the parties can agree on a better approach to document management and organization. If agreement cannot be reached, then the court might approve an approach suggested by one of the parties if it is fair to all parties and achieves the purposes of documentary production. Parties are not entitled to simply ignore the rule or to fail to make proper production in the name of proportionality.
[62] The court will not order cross examination in advance of discoveries but will lengthen the time allowed for discovery to accommodate further cross examination on the adequacy of documentary production. Should this give rise to large numbers of undertakings and requests for further rounds of discovery, the court will entertain that request on proper evidence.
[63] If it would be of assistance to the parties, they may request a case conference under Rule 50.13.
[64] The court therefore orders as follows: a. The plaintiffs are to obtain the files from Mr. Nearing and Mr. Griffiths and are to produce those files subject to proper claims of privilege. b. The Ellah defendants are to obtain their file from Ms. Hooper and shall produce the file subject to proper claims of privilege c. The contents of those files are to be properly described in the appropriate schedules in supplementary affidavits of documents. d. Mr. Peter Sammon shall produce the Yakabuskie file to counsel for the County subject to proper claims of privilege on behalf of his clients. If they wish to assert privilege, a list of the documents over which privilege is claimed is to be provided. The County shall produce a supplementary affidavit of documents indexing the contents of the file as well as producing Mr. Sammon’s privilege indexes, if any. e. These files and the supplementary affidavits of documents are to be produced by June 7th, 2019. f. The plaintiffs and the Ellah’s are to provide an index of all documents described by categories in the affidavits of documents at the request of the defendants. A revised affidavit of documents compliant with the rules is to be provided upon request unless otherwise ordered or agreed. g. The deemed undertaking is lifted for the purpose of permitting information produced in the 2011 litigation to be used in this litigation. h. If counsel cannot agree on the time required for discoveries of the plaintiffs’ then the minimum time provided in the rule will be extended by one hour to explore the adequacy of documentary production. This is not a bar to seeking additional time from the court should that be required. i. A further motion may be brought for rulings on whether privilege is properly claimed or has been waived once the production is complete with respect to the previous litigation files and following discovery. j. A case conference may be requested pursuant to Rule 50.13 to discuss production and discovery and to obtain direction from the court if a motion is not necessary. k. Summary judgment may go in accordance with the consent of the parties. l. The motion for production of police records and the accident benefit file is adjourned. m. Costs of this motion are reserved.
Cross Motion
[65] The cross motion was a motion for answers to undertakings and for answers to questions refused on discovery. The issues had been narrowed before the court date. A number of questions were argued as noted in the “Refusals and Undertakings Chart” contained in the factum of the County.
[66] Despite the delay in launching this action and the destruction of certain county records, the County has been able to locate records dealing with the roads patrolled and serviced in the Cobden sector of the county on the night in question. The plaintiffs seek similar records from the other sectors in the Country for comparison purposes. They also seek the records for the entire 2008-2009 winter season and not simply the night in question.
[67] S. 44 (1) – (3) of the Municipal Act sets out statutory standards and statutory defences as follows:
Maintenance
44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge. 2001, c. 25, s. 44 (1).
Liability
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default. 2001, c. 25, s. 44 (2).
Defence
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if, (a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge; (b) it took reasonable steps to prevent the default from arising; or (c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. 2001, c. 25, s. 44 (3).
[68] The issue in this litigation is whether or not the municipality met the statutory standard for maintenance of the roadway by keeping it in a reasonable state of repair “in the circumstances including the character and location of the highway”. Even if it failed in this statutory obligation, it has a complete defence if it took reasonable steps to prevent the default from arising, or if it met the minimum standards set out in O. Reg. 239/02, Minimum Maintenance Standards for Municipal Highways [29].
[69] While the regulation does contain standards for patrolling and inspecting roads and standards for snow and ice removal dependant on the nature of the road, the regulation may or may not cover the particular acts of negligence alleged by the plaintiffs. Whether there was negligence and whether it is covered by a standard set out in the regulation is a question for trial. The issues on which evidence will be required include whether the County “could reasonably have been expected to have known” about dangerous conditions and whether it “took reasonable steps” to prevent the default from arising (if there was a default).
[70] In assessing what a party should reasonably have known and whether its steps were reasonable, it is frequently relevant to examine the standards and practices it has adopted itself. I am therefore of the view that there is some relevance to the standard set by the County in each of its road districts and whether they operated their patrols in the same manner as Cobden. The relevance is limited, however, because the weather conditions, road conditions and nature of the roadways vary dramatically from one area of the County to another.
[71] Similarly, I am of the view that there is relevance as to how the roads were patrolled and serviced on other days with adverse weather events. Each day may be quite different of course but the general pattern of surveillance and maintenance has relevance to whether or not there was a departure from usual standards on the day in question.
[72] On the other hand, I do not consider questions asking the witnesses to give opinions or to speculate on hypotheticals are appropriate questions for these witnesses. It is for example reasonable to ask the witness how often the County did traffic counts for its roads and if there was a policy or practice triggering an updated traffic count. It is not a proper question to ask the question in the form of the hypothetical “if Haley Industries grew from 2003-2009 would that cause the County to do updated traffic counts”. Similarly, it is reasonable to ask if the County had any system for tracking the number of accidents on county roads. It is not reasonable to phrase the question as “agree that the County’s decision not to track accidents, results in a lack of information … to identify winter maintenance hotspots.” These hypotheticals assume facts that the witness has not admitted or they are potentially misleading and they ask for opinions which the witness may or may not be qualified to provide.
[73] In summary, I am ordering answers to Q. 375 on the discovery of Nick Eckford, Q. 460-461 on the discovery of Wade Patterson, Q. 530 on the discovery of Keith Price, Q. 232 on the discovery of Steve Boland (on consent), Q. 441-443 on the discovery of Steve Boland. None of the other disputed questions need be answered.
[74] Production is to be completed within 30 days. The parties may seek further direction if they are unable to agree on follow up questions or the need for further discovery.
[75] In summary, on the cross motion, the court orders answers to the questions set out in paragraph 73 above. The issue of costs is reserved.
Costs
[76] I did not hear submissions on costs. I invite counsel to agree on a costs disposition, but they may otherwise seek direction from my office to argue costs or to have costs dealt with in writing.
[77] If I do not hear from counsel by June 7th, 2019 I will presume that costs have been resolved and there will be no order as to costs.
Mr. Justice C. MacLeod Date: May 7, 2019
Footnotes
[1] S.O. 2001, c. 25 – herein referred to as the “Municipal Act”. [2] See s. 45 (1), Municipal Act, supra [3] Ottawa court file no. 11-50394 [4] Pembroke court file no. 11-040 [5] RSO 1990, c. M.56 as amended – herein “MFIPPA” [6] See for example Patrick v. Middlesex (County), 2018 ONSC 7408 as well as Azzeh v. Legendre, 2017 ONCA 385 [7] S.O. 2002, c. 24, Sched. B – hereinafter “the Limitations Act” or “the Act”. [8] See s. 5 of the Act. [9] S. 7 of the Act. [10] Azzeh v. Legendre, supra @ para. 40 [11] See s. 8 & 9 of the Act. [12] Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [13] Supra @ paras. [14] 2019 ONSC 30, 2019 ONSC 0030 [15] Ms. Siddiqui was represented by the same law firm and her argument succeeded. [16] Supra, at para. 34 [17] Supra, para 37 & 38 [18] Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39 @ para. 26 [19] Blank v. Canada, supra [20] Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37; [2013] 2 SCR 623 and Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35; [2014] 1 SCR 800 [21] Available at https://www.canlii.org/en/info/sedonacanada/2015principles_en.pdf [22] Rule 30.03 [23] Solid Waste Reclamation Inc. v. Philip Enterprises Inc., (1991), 2 OR (3d) 481 (Gen. Div.) [24] Rules 29.1 and 29.2. [25] See http://www.oba.org/EIC/Home and in particular the public comment version of a proposed affidavit of documents [26] See for example, City of Ottawa v. Suncor Energy Inc, 2019 ONSC 1340, MacLellan v. Szczepski, 2005 CarswellOnt 8301 (SCJ) and Canadian National Railway Company v. Western Grain Cleaning & Processing Ltd., 2010 SKQB 59 (Sask. Q.B.) [27] See RCP Inc. v. Wilding, [2002] O.J. No. 2752, 2002 CarswellOnt 2275 (Master) [28] See Seelster Farms Inc. v. Ontario, 2016 ONSC 97 (SCJ) [29] O.R. 239/02, Minimum Maintenance Standards for Municipal Highways, version in force from January 1, 2007 – February 17, 2010.