Court File and Parties

ONSC 5227 COURT FILE NO.: 240/16 DATE: 20190910

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sam Al Kirschner, Plaintiff AND: The Corporation of the Municipality of Chatham-Kent, Defendant

BEFORE: Justice A. K. Mitchell

COUNSEL: B. Leatherdale, for the moving party (Defendant) A. Wolfe, for the responding party (Plaintiff) J. Chan, for the non-party, The Ministry of the Attorney-General

HEARD: June 17, 2019

ENDORSEMENT

Overview

[1] The defendant brings this motion pursuant to rule 30.10 seeking production of all documentation in the possession of the Ontario Provincial Police, the St. Thomas Police Service, the Strathroy-Caradoc Police Service and the Ministry of the Attorney General (collectively, “MAG”) pertaining to the investigation and prosecution of offences leading to the plaintiff’s arrest in January 2017 for possession of stolen property, namely heavy equipment, and fraud in excess of $5000.

[2] The motion was originally returnable on March 20, 2019 and was adjourned on the court’s motion to today to allow MAG an opportunity to review the requested documents and provide their position as to the extent of disclosure they were willing to make having regard to their own concerns, if any.

[3] By endorsement made March 20, 2019, Templeton J. granted leave to the defendant to amend its motion materials and to the plaintiff to file a cross-motion, if necessary. The defendant filed an Amended Notice of Motion seeking, in addition to the original disclosure relief, leave of the court to bring this motion. The plaintiff did not file a cross-motion.

[4] The plaintiff opposes the motion. MAG takes no position on the motion. MAG filed with the court both a copy of the unredacted requested documents and a redacted copy of these same documents.

Background

[5] This action involves a claim for damages arising from a single motor-vehicle accident which occurred on May 16, 2014. The plaintiff, Sam Kirschner, owns and operates his own bulldozing and excavating company as a sole-proprietor. The plaintiff alleges that while operating his dump truck on Longwoods Road near Bothwell he was forced off the road by an unidentified motor vehicle. He claims that to avoid a collision, he directed his vehicle to the shoulder of the road where he alleges he collided with a negligently designed and maintained drainage catch.

[6] The plaintiff claims he has suffered serious and permanent injuries and seeks damages of approximately $10 million, including damages for past and future income losses.

[7] The statement of claim was issued on May 11, 2016 and the statement of defence and cross-claim was served on July 28, 2016. Both liability and damages are contested.

[8] The action was set down for trial on February 6, 2018. A pretrial was conducted on June 6, 2019; however, adjourned to allow a Workplace Safety and Insurance Board (“WSIB”) hearing to be conducted. At the time the motion was argued, the matter was scheduled to proceed to trial during the trial sittings commencing September 16, 2019 and the WSIB hearing had not yet been scheduled.

[9] The defendant submits that a decision by the WSIB will be determinative of the issues in this action and advised that it intended to seek an adjournment of the trial to allow the WSIB hearing to proceed in advance of the trial of this action. Plaintiff’s counsel advised they had been instructed to oppose any such adjournment request.

Rule 48.04 – Leave to bring a motion

[10] Rule 48.04 requires any party who consents to having a matter set down for trial to obtain leave of the court to bring any motion for continued discovery.

[11] In this case, the trial record was filed on February 6, 2018 and on May 18, 2018, on consent of both parties, pretrial and trial dates were scheduled. It is not disputed that the defendant consented to having this matter set down for trial.

[12] Setting down an action for trial is not a mere technicality. The test for granting leave is whether there has been a “substantial and unexpected change in circumstances” such that the court’s adjudication process would be materially affected without the requested discovery.[^1]

[13] The defendant quite properly amended its notice of motion to include a request for leave. However, the defendant did not file any additional evidence to support its expanded request for relief. The scant evidence on this issue contained in the Affidavit of Sheila Handler sworn January 17, 2019 is as follows:

On or about November 28, 2018, I became aware of a news article posted to the “104.7 HeartFM” website on May 4, 2017. The article indicates that the plaintiff was one of six people arrested as a result of a joint investigation by the Ontario Provincial Police, the St. Thomas Police Service and the Strathroy-Caradoc Police Service in relation to over $220,000 in stolen heavy equipment, including “2 skid steers, a mini excavator and a side by side ATV”. The article suggests that the police expected to find even more stolen property and indicates that the plaintiff was charged with “Possession of Property Obtained by Crime over $5,000” and “Fraud over $5,000”.

[14] While this news article was not discovered until after the action was set down for trial, the news article was published more than 9 months prior to the action being set down for trial. The news article relates to charges laid long before the action was set down for trial. With reasonable diligence the news article and the information relating to the charges laid against the plaintiff were discoverable long before February 2018.

[15] Retaining new legal counsel who merely employs a different approach to discovery does not constitute a “substantial and unexpected change in circumstances”. I find there is no evidence to support granting leave. Therefore, leave is denied.

[16] Having denied leave, no further analysis of the substantive issues on the motion is necessary; however, I will consider the merits of the motion for the sake of completeness.

Rule 30.10 – Production of Documents in the Possession of a Non-party

[17] Rule 30.10(1) requires the defendant to prove that:

(a) the production requested from MAG is relevant to a material issue in the action; and

(b) it would be unfair for the defendant to proceed to trial without the discovery of the evidence.[^2]

[18] The court must be satisfied that there is a reasonable possibility the information sought is logically probative of a material issue at trial.[^3] The “semblance of relevance test” is no longer the law in Ontario.

[19] To obtain documents from a non-party, it is not necessary to show the documents sought are vital or crucial for trial preparation. The court should consider various factors including the importance of the documents; whether pre-trial production is necessary to avoid unfairness; whether discovery from the parties is adequate and, if not, whether responsibility for the inadequacy rests with a party; whether the non-party resists production; the availability of the documents or information from other sources; and the relationship between the non-party and the parties.[^4]

[20] To support its request, the defendant submits that the MAG files will be of great value to the discovery process given the enhanced investigatory tools available to police but unavailable to civil litigants. The defendant submits the MAG files might bear fruit beyond the discovery conducted to date with respect to the plaintiff’s financial position, including the profitability of his business.

[21] In response, the plaintiff submits that the contents of the MAG files are not relevant to the issues of liability and damages in this action and argues that the request is merely a “fishing expedition”.

[22] The situation here is somewhat unique given that it is a party (and not the non-parties) who opposes the relief sought by the defendant. MAG, being the collective non-parties, take no position with regards to production of their file. However as per the Stavro test, this is only one factor to consider and is not dispositive.

[23] Had I found standing to hear the motion, I would have dismissed the motion for the following reasons:

(a) I am not persuaded these files and the police investigation into the charges for equipment theft and fraud are relevant to the issues in this action. The charges post-date the accident by almost 3 years and are entirely unrelated to the accident. Furthermore, I am not persuaded by Ms. Handler’s limited evidence on the issue of relevance as follows:

I verily believe that the extent of the plaintiff’s involvement in the use, theft or resale of the heavy machinery that was the subject of the joint police force investigation has implications for the plaintiff’s economic claims, psychological state, and physical capabilities when the theft or thefts occurred. Given that the machinery stolen included excavation equipment, the details of the plaintiff’s involvement may also bear on the state of his excavation business.

At its highest, the evidence contained in the MAG files in support of these charges may suggest bad character and may have been relevant to the plaintiff’s overall credibility had convictions been entered. However, the plaintiff pleaded not guilty to these charges and the charges were ultimately withdrawn in February 2018. The withdrawal of these charges further negates any possible relevance the contents of these files might have to the issues in this action. I further note that the defendant has not identified any specific credibility or character issue arising from the discovery evidence.

(b) In addition to finding that the defendant has failed to meet the test for relevance, I further find there has been no unfairness in the discovery process. Extensive discovery of the plaintiff’s claims has been undertaken to date. The defendant has conducted three examinations for discovery of the plaintiff - March 23 and 26, 2017 and August 14, 2017, with the most recent discovery having been conducted following publication of the news article. The defendant has conducted 26 days of covert video surveillance of the plaintiff. There has been extensive discovery of the plaintiff’s financial, business and medical records resulting in thousands of pages of records having been produced to date; and

(c) There is no evidence of the defendant’s experts indicating any need to review the contents of the MAG files so as to complete their respective reports and provide their opinions with respect to the plaintiff’s claims.

[24] At some point, the discovery process must end. In this action and with respect to the request for production of the MAG files, that time has come.

Disposition

[25] Motion dismissed.

Costs

[26] Further to the direction of the Court, both parties filed a Costs Outline after this decision was taken under reserve. I was not advised of any Offers to Settle. The plaintiff being the successful party on the motion is presumptively entitled to his reasonable partial indemnity costs. The plaintiff has submitted a claim for partial indemnity costs of the motion of $24,233.37. By comparison, the defendant’s partial indemnity costs are $6,274.97.

[27] Senior and junior counsel for both parties are of comparative years of experience yet the difference between their respective costs of this motion is staggering. Perhaps both parties were able to “read into” my questions during argument what the outcome of the motion would be and tailored their respective costs submissions accordingly. It appears the plaintiff is hoping for a windfall. That is not the purpose of a cost award.

[28] The issues on the motion were straightforward and not complex. The relevant caselaw could be gleaned from the annotated Rules of Civil Procedure. The majority of the time spent working on this motion was spent by a lawyer with two years’ experience. The time spent by this lawyer was 63.36 hours or 8 hours a day for 8 days. This amount of time is excessive having regard to the nature of the issues on the motion and the materials filed. I note no cross-examinations were conducted.

[29] I find that a fair and reasonable costs award is $10,000 inclusive of fees, disbursements and HST payable by the defendant to the plaintiff.

“Justice A.K. Mitchell”

Justice A. K. Mitchell

Date: September 10, 2019

[^1]: See Hill v. Ortho Pharmaceutical (Canada) Ltd. (1992), 11 C.P.C. (3d) 236 (Ont. Gen. Div.). [^2]: R.R.O. 1990, Reg. 194. [^3]: Vachon v. Titley, [2013] O.J. No. 3868 (S.C.J.) at para. 9; citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. [^4]: Ontario (Attorney-General) v. Stavro, (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39 (C.A.) (“Stavro”)