Court File and Parties

COURT FILE NO.: CV-16-547348 DATE: 20190531

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zdenko Vanek, Michelle Vanek and Jacob Vanek, a minor by his Litigation Guardian, Zdenko Vanek, Plaintiffs AND: Sean Sutherland and Intact Insurance, Defendants

BEFORE: Master P.T.Sugunasiri

COUNSEL: Sutton, M., Counsel for the Plaintiffs (Moving Parties) Leung, T., Counsel for the Sean Sutherland

HEARD: May 31, 2019

Reasons for Decision

Overview:

[1] This is a $7 million motor vehicle accident case in which at least two of the Plaintiffs claim catastrophic impairment. The parties are at the discovery stage. As part of his disclosure, Sean Sutherland has listed two surveillance reports. In the normal course, a defendant must disclose the particulars of his surveillance only at the time of his discovery.[^1] The order of discovery is governed by when each party serves their Notices of Examination. A party must first serve a sworn affidavit of documents before she can serve the Notice of Examination (Rule 31.04).

[2] The parties only delivered unsworn affidavits of documents before serving their Notices of Examination. Despite this, Sean examined Zdenko. Michelle and Sean were to be examined on March 14, 2019. On the morning of March 14th, Michelle served her sworn Affidavit of Documents. As anticipated by defence counsel, Sean did not show up. Michelle believed that she was entitled to examine Sean first on the 14th and therefore entitled to the surveillance particulars. Michelle refused to be examined without them. Defence counsel's solution to the problem was to offer the surveillance particulars on the condition that Michelle would limit her damages to his policy limits. In the end, neither Michelle nor Sean were examined, and the parties are at an impasse.

[3] The issue in this motion is whether the defence should disclose the particulars of his surveillance before he examines Michelle Vanek. I conclude that he must. Michelle perfected her right to examine Sean by serving her sworn affidavit of documents on March 14, 2019. I explain my reasons below.

[4] As a matter of housekeeping, the Plaintiffs would also like a mediation date which is both required by the Rules of Civil Procedure and the Insurance Act. It was originally scheduled for October 2, 2019 but was cancelled by defence counsel. I have no motion to waive mediation. On the other hand, the Plaintiffs have until 2021 to set the action down for trial. Given the difficulties counsel appears to be having in securing Sean's ongoing participation, the Plaintiff should afford Sean's insurer some leeway to determine its position before forcing it to mediation. I remain seized of the timetabling issue if the parties cannot come to an agreement.

Chronology of Events:

[5] In a case like this, the chronology of events is relevant.

Parties exchange pleadings

[6] On February 24, 2016 the Plaintiffs issued their Statement of Claim ("Claim"). Sean served his Defence and Counterclaim against Zdenko, and Jury Notice on January 23, 2017. Zdenko delivered his Defence to Counterclaim on October 20, 2017.

Sean examines Zdenko

[7] Sean served his unsworn Affidavit of Documents and Schedule A productions on December 18, 2017. Within that Affidavit was his Schedule B listing two surveillance reports.

[8] He then served Zdenko with a Notice of Examination dated January 23, 2018 to examine him for discovery on January 29, 2018. Sean completed his examination of Zdenko on the 29th.

Plaintiffs change solicitor and Michelle serves unsworn affidavit of documents

[9] On February 8, 2018 Thomson, Rogers began to act for the Plaintiffs. On the same day, Michelle Vanek delivered her unsworn Affidavit of Documents.

Plaintiff serves Notice of Examination, then Sean serves Notice of Examination

[10] On March 8, 2019, Sean's counsel confirmed by letter that Sean, Michelle and Jacob Vanek were to be examined on March 14, 2019. Counsel then said that "My office has not been able to secure Mr. Sutherland for his discovery. Efforts are ongoing and we will advise if we are able to confirm his attendance, but at this time, he is not confirmed for next week." Counsel for Sean also advised that Jacob's productions were insufficient to examine him. On the same day, the Plaintiffs served their Notice of Examination for Sean's examination.

[11] On March 11, 2019, Sean served his Notice of Examination on Michelle. By this time, no one had delivered a sworn Affidavit of Documents.

Michelle serves sworn Affidavit of Documents and is ready to be examined on March 14, 2019, Sean does not show up

[12] On March 13, 2019, in anticipation of a potential examination of Sean (despite counsel's letter that they had not been able to secure him for the 14th), the Plaintiffs requested the particulars of the two surveillance reports. Counsel for Sean again advised that they had not been able to confirm his attendance.

Michelle serves her sworn Affidavit of Documents but does not submit to examination

[13] On the morning of March 14, 2019, Michelle served her sworn Affidavit of Documents and was ready to be examined. Sean did not show up as anticipated by defence counsel. The Plaintiffs obtained a Certificate of Non-Attendance as was their right.

[14] The parties then discussed next steps. Michelle was willing to proceed if Sean provided particulars of the surveillance video. Counsel was only willing to do so prior to Sean's discovery if the Plaintiffs agreed to limit damages to the policy limits. Michelle's examination did not proceed.

Issues:

[15] Under the rules, Michelle is entitled to particulars of the defence's surveillance at the time of Sean's examination for discovery. If she has a right to examine Sean first, then she would receive the particulars before her own examination. To determine whether Sean must disclose the particulars of surveillance before Michelle's examination, there are four issues I must decide:

a. Is Michelle or Sean presumptively entitled to examine first?

b. Does Michelle's subsequent service of a sworn Affidavit of Documents on March 14, 2019 validate the Notice of Examination that she served on Sean on March 8, 2019?

c. Is there a reason to change the order of examination from what r.31.04 provides?

d. If Sean is never examined, is Michelle entitled to the particulars of surveillance prior to her examination?

Law and Analysis:

Is Michelle or Sean presumptively entitled to examine first?

[16] Rule 31.04 governs a party's entitlement to examine an opposing party, and the order of examination. I note that each plaintiff is a separate party and has an individual right of discovery of the defendants (Rule 31.03). In this case, Zdenko, Michelle and Jacob are separate plaintiffs, each with their own right of discovery. Therefore, whatever concessions Zdenko made with respect to his discovery does not bind Michelle nor Jacob.

[17] According to r.31.04, Michelle may examine Sean after he has delivered his defence and Michelle has served an affidavit of documents, unless the parties agree otherwise. Similarly, Sean may examine Michelle after he delivers his defence and his sworn affidavit of documents, unless the parties agree otherwise. One of the cornerstones of an affidavit is that an affiant swears or affirms to the truth of its contents. This is what gives it legitimacy and binds the affiant to the representations he has made in the affidavit. As such, it is presumed that r.31.04 requires a sworn affidavit of documents, not merely a draft.[^2]

[18] Given the foregoing, neither Michelle nor Sean had complied with r.31.04 when they served their Notices of Examination on each other, and neither had a presumptive right to examine on March 14, 2019. I have no evidence that Michelle and Sean agreed to proceed other than in accordance with r. 31.04. The fact that Zdenko allowed himself to be examined without Sean having served a sworn affidavit of documents does not bind Michelle.

Does Michelle's subsequent service of a sworn Affidavit of Documents on March 14, 2019 validate the Notice of Examination that she served on Sean on March 8, 2019?

[19] Michelle submits that she is entitled to examine first because she was the first to deliver a sworn affidavit of documents and serve a notice of examination. The problem is, however, that she did not do these things in the correct order. As Justice Quinn notes in McDonald, supra, an unsworn affidavit ranks no higher than a letter and is a nullity for the purposes of compliance r.31.04. The same applies to notices of examination served on the heels of an unsworn affidavit of documents.

[20] On this reasoning, Michelle's Notice to examine Sean on March 14th was technically a nullity. Neither party provided me with argument or case law to address whether service of a sworn affidavit on March 14th cured the defect in the Notice of Examination. In my view, the court has discretion to cure an irregularity such as this if it is in the interests of justice to do so having considered all of the circumstances of the case. Rule 1.04 directs that the court must construe the rules liberally to secure a just, expeditious and cost effective determination of a proceedings on its merits.

[21] On the facts of this case, I find that Michelle cured the defect in her Notice of Examination of Sean when she delivered her sworn Affidavit of Documents on the morning of March 14, 2019. This entitled her to examine Sean first on that date. Even if I am wrong, Michelle could easily secure her first position in any event. At this moment in time Michelle is the only party entitled to serve a Notice of Examination. To secure her right of first examination, she simply has to serve another Notice of Examination on Sean before Sean perfects his rights. Given these circumstances, it would be an overly technical reading of r.31.04 to require Michelle to take this step rather than simply curing the defect in her March 8, 2019 Notice.

Is there a reason to change the order of examination from what r.31.04 provides?

[22] Rule 31.04(3) states that the first party to serve a notice of examination is entitled to examine first, "unless the court orders otherwise." I have already concluded that an application of the rule to the circumstances of this case entitles Michelle to examine first.

[23] Sean has not given me any reason to change the order of examination. Sean advanced several points. First, he argued that he was in the middle of the Plaintiffs' discovery and is entitled under r.31.04(3) to complete all plaintiff discoveries before he is examined. Second, he notes that Michelle improperly served her Notice on Sean even though defence counsel advised in advance that Sean was unlikely to attend. Third, he states that if Michelle is given the particulars of the surveillance before her examination, it may affect her answers.

[24] I disagree with Sean that because he has already examined Zdenko, he has a right to continue his examination of all of the Plaintiffs before he is examined. Rule 31.04(3) simply states "The party who first serves on another party a notice of examination under rule 34.04...may examine first and may complete the examination before being examined by another party." In other words, if Sean had not completed Zdenko's examination, he would have been entitled to complete it before Michelle could examine him. He did however complete Zdenko's examination. The rule does not aggregate the Plaintiffs. This is clear from the fact that Sean must serve each of the plaintiffs with their own individual Notice of Examination. Michelle is a separate party from Zdenko and her examination is not tied to his other than the fact that Sean only has 7 hours total to examine all of the Plaintiffs (Rule 31.05.1). Michelle is also not bound by Zdenko's choice to be examined without Sean having served a sworn affidavit of documents.

[25] I also disagree that knowing about Sean's likely unavailability invalidates Michelle's Notice because I should dissuade the parties from using the rules to gain a tactical advantage. I do not find anything untoward about Michelle's approach. I have little on the record with respect to discussions about Sean's availability. What I can glean from the record is that the parties agreed at least in principle that both Michelle and Sean would be examined on March 14th but defence counsel was not able to guarantee Sean's attendance. There was nothing wrong with Michelle exercising her right to examine him as discussed. While successful litigation is a collaborative process, Michelle also faces the burden of moving her action along and is entitled to do what she needs to do to prosecute her action and benefit from opportunities the rules may afford her.

[26] Even if I am wrong and Michelle's actions are improper, the important question is whether Sean's case is prejudiced by such impropriety. I have no evidence that Michelle would tailor her evidence once she knows the particulars of her surveillance. Absent evidence, there is no presumptive danger to the integrity of the discovery process if a plaintiff knows the particulars of her surveillance before examination. If this were the case, the rules would never allow a plaintiff to examine a defendant first.

[27] I also note that Michelle is not entitled to the reports themselves which remain privileged. She is entitled to the date, time and location of any surveillance done on her, as well as the nature and duration of the activities depicted. The Ontario Court of Appeal reminds us in Iannarella v Corbett, 2015 ONCA 110 at paras. 40-45, albeit in different circumstances, that early disclosure of surveillance encourages early settlement because it assists a plaintiff in better evaluating her case. Absent prejudice, I adopt the Court of Appeal's reasoning in this case.

If Sean is never examined, is Michelle entitled to the particulars of surveillance prior to her examination?

[28] The jurisprudence is clear that Michelle is entitled to the particulars of surveillance at the time Sean is examined (see Davis, supra). I have concluded that Michelle had a first right of examination on March 14, 2019 if Sean had shown up. This means that she would have been entitled to receive disclosure of the particulars of surveillance on March 14, 2019. The fact that Sean did not attend should not disqualify Michelle from her entitlement. I agree with Michelle that Sean should not be able to resist disclosure of the particulars by simply not attending discovery or failing to schedule a new date. Michelle is entitled to have what would have been available to her on March 14, 2019 had Sean complied with the Notice. Further, if Sean is never examined because he cannot be found, the defence must disclose the particulars of their surveillance prior to Michelle's examination.

Disposition:

[29] For the foregoing reasons, I find that Michelle cured the defect in her Notice of Examination served on March 8, 2019 when she served a sworn Affidavit of Documents on the morning of Sean's examination. She was entitled to examine Sean first. If Sean cannot be located and Michelle agrees to be examined first, the defence must disclose the particulars of any surveillance of Michelle prior to her examination. While Michelle's process has not been perfect, she is the only party who has actually served a sworn Affidavit of Documents. In balancing the interests of the parties, the scale tips in her favour.

Michelle's claim for costs thrown away

[30] Michelle seeks $600.00 in costs thrown away for the failed examination on March 14, 2019. Rules 34.14(2) and 34.15 address costs for improperly adjourned examinations and failed examinations. She argues that she is entitled to these costs because Sean failed to attend his examination and it was the defence's refusal to provide surveillance particulars that prevented Michelle from being examined.

[31] I decline to award these costs. First, while Michelle was entitled to exercise her right to summons Sean for his discovery in the face of knowing that he might not attend, she bears the risk of that decision and the attendant cost. Second, the defence's refusal to hand over surveillance particulars on the 14th was justified. They had a reasonable basis for the refusal and were correct at the time that Michelle had not met the preconditions for such disclosure.

Timetable for Remaining Steps

[32] The parties had a mediation scheduled for October 2, 2019 which the defence has since cancelled. It seems that they continue to have difficulties securing Sean's participation. I agree that the parties must mediate this case by February 24, 2021 and preferably earlier so that the Plaintiffs can set the action down for trial. This is required by r. 24.01.01, the Toronto Consolidated Practice Direction effective May 1, 2017 and section 258.6(1) of the Insurance Act. I am not willing at this juncture to order a date by which mediation must occur. There are possible coverage issues that Sean's insurer and defence counsel may have to resolve before it can move forward. I understood from counsel at the motion that the parties will be able to work together to timetable the remaining steps. I leave it to the parties to do so. If they need assistance they may convene a case conference with me by contacting Christine.Meditskos@ontario.ca. I am also able to sign a consent timetable order if the parties file their draft with the Masters' Administration at 393 University Avenue. I remain seized on the timetabling issue only.

Costs:

[33] If the parties cannot agree on costs, Michelle may file brief written submissions of no more than three pages double-spaced plus her costs outline by September 3, 2019. Sean may respond with the same parameters by September 17, 2019. All submissions shall be filed at the Masters' Administration Office.

Original signed

Master P. Tamara Sugunasiri

Date: August 19, 2019

[^1]: Davis v TTC, 2018 ONSC 7527 at 29 and Hallock v Hothi, 2015 ONSC 1851 at 9. [^2]: Justice Quinn takes a similar position in McDonald v Standard Life Assurance Company, 2007 CanLII 21959 at para. 11.