COURT FILE NO.: CV-13-4850-00B1
DATE: 2019 11 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: APARNA SANWALKA, personally, DIYAH SANWALKA, and PATRICK ROY SANWALKA HARRIS, minors, by their Litigation Guardian, APARNA SANWALKA
Plaintiffs
– and –
THE REGIONAL MUNICIPALITY OF PEEL and PEEL HOUSING CORPORAITON
Defendants
AND BETWEEN:
BI-VIEWS BUILDING SERVICE LTD., operating as BIVIEW BUILDING SERVICE LTD., BIVIEW BUILDING SERVICES LTD. and BIVIEW BUILDING SERVICES, JOE PACE & SON CONTRACTING LIMITED, JOE PACE & SON CONTRACTING INC. and INNOVATIVE CONTENT SOLUTIONS INC.
Third Parties
– and –
TRIPLE A CONTRACTING AND RESTORATION LIMITED and BARRAGER’S CLEANERS LIMITED
Fourth Parties
BEFORE: EMERY J.
COUNSEL: S. Juzkiw for the Plaintiffs, S. Inkol for the Defendants, E. Turkienicz for the Bi-View Third Parties, R. Coughlin for the Third Party, Innovative Content Solutions Inc. and W. Samson for the Fourth Party, Barrager’s Cleaners Limited
HEARD: October 22, 2019
endorsement
Emery J.
[1] The plaintiffs Aparna Sanwalka (“Aparna”) and her children Diyah Sanwalka (“Diyah”), and Patrick Roy Sanwalka-Harris (“Patrick”), commenced this action six years ago against the Regional Municipality of Peel and Peel Housing Corporation (collectively, “Peel”), seeking a total of $4.7 million in damages. The plaintiffs allege in the statement of claim that Peel, as their landlord and provider of subsidized housing, owed them a duty of care. They allege that Peel breached that duty of care, and that they suffered personal injury because of mould detected in their residential unit. They also claim for the damage and loss to personal property during the remediation of that residential unit.
[2] Each of the plaintiffs seek general damages, special damages, and punitive damages in the action. Peel has in turn made a third party claim against each of the following:
a) Bi-Views Building Service Ltd. (“Bi-Views”) – retained by Peel to carry out initial remediation work at the plaintiffs residence; and
b) Innovative Content Solutions Inc. (“Innovative”) – retained to sort, inventory, clean and pack the personal property belonging to the plaintiffs during the remediation process.
[3] Innovative then joined the following as fourth parties:
c) Triple A Contracting and Restoration Limited – retained by Innovative to clean and disinfect the personal property of the plaintiffs before that property was packed up and removed from the plaintiffs’ residence;
d) Barrager’s Cleaners Limited – retained by Innovative to pick up, sort and inventory certain items of personal property belonging to the plaintiffs, including the dry cleaning of certain items; and
[4] Aparna was initially the litigation guardian in this action for her daughter Diyah and her son Patrick. Diyah turned 18 years of age on June 24, 2019. She has indicated through counsel that she intends to continue her claim in her own right now that she is an adult. Aparna has indicated that she no longer intends to act as litigation guardian for Patrick. Aparna’s father, Shashi Sanwalka, and her mother Rama Sanwalka, as Patrick’s grandfather and grandmother, have now sworn affidavits to act as Patrick’s litigation guardians.
[5] I am the designated judge appointed under the One Judge Model to hear all matters in this action except those court events aimed at settling any claim on its merits. I am advised that the parties encountered difficulty with scheduling further examinations for discovery after Aparna and Patrick were examined on November 8, 2018. I am further advised that the parties require the intervention of the court to ensure compliance with the disclosure obligations owed by the plaintiffs under the Rules of Civil Procedure and with other procedural requirements. I therefore directed the parties to bring motions on October 22, 2019 to be heard by me at the same time.
[6] Peel brought a motion for the regularization of the pleadings, further disclosure in the form of a further and better affidavit of documents, and to schedule further examinations for discovery of Aparna, among other things. Aparna brought a motion seeking terms to accommodate certain disabilities when her examination for discovery continues because she claims to have the following mental health conditions: Attention Deficit Hyperactivity Disorder, Dyslexia, Post Traumatic Stress Disorder, and an Adjustment Disorder with mixed anxiety and depressed mood symptoms.
[7] The following orders were made on those motions.
On the peel motion
[8] On consent, this court orders that:
a) The plaintiff Patrick Roy Sanwalka Harris is to file the new affidavits sworn by Shashi Sanwalka and Rama Sanwalka to act as his litigation guardians by October 28, 2019. This deadline has since been extended to November 15, 2019;
b) The plaintiff Diyah Sanwalka is to move for an order to continue that removes Aparna Sanwalka as her litigation guardian, so that she proceeds as a plaintiff in her own right;
c) Leave to amend the title of proceeding and the relevant paragraphs in the statement of claim accordingly, by October 31, 2019. This deadline has since been extended to November 22, 2019;
d) Each of the plaintiffs shall serve a further and better affidavit documents containing all relevant medical and clinical notes, records, and reports, including diagnostic testing results, from all treating health care providers they intend to rely upon at trial, and any other relevant documents they have an obligation to disclose under Rule 30.02(1) and Rule 30.07, by December 20, 2019;
e) The plaintiff Aparna Sanwalka shall use her best efforts to answer all outstanding undertakings given by her or on her behalf at the first day of her examination for discovery on November 8, 2018, and to provide the relevant records from the Peel Children’s Aid Society relating to each Patrick and Diyah with respect to the claims any plaintiff is making in this action, by December 20, 2019;
f) All Schedule A documents shall be served by the plaintiffs on Peel and to all third and fourth parties electronically by December 20, 2019;
g) All parties shall be at liberty to attend at Aparna’s residence, 12 Ledger Point Crescent, Brampton, Ontario at a mutually convenient date and time on or before December 20, 2019 to inspect the contents of approximately 16 boxes of evidence stored in her garage that she referred to on the first day of her discovery on November 8, 2019;
h) The plaintiffs shall ensure that the boxes in Aparna’s garage at 12 Ledger Point Crescent in Brampton be preserved in their current state pending the inspection of those boxes by the defendants and any third or fourth party;
i) Aparna shall attend her continued examination for discovery on a mutually convenient date prior to February 28, 2020;
j) Diyah shall attend and be examined for discovery prior to February 28, 2020;
k) Peel and any third and fourth party may be examined for discovery prior to June 1, 2020;
l) Any further undertakings given by any plaintiff and the undertakings given by Peel or by any third or fourth party at their respective examinations for discovery shall be answered with 60 days after the date that examination for discovery is conducted;
[9] This court orders, not on consent:
a) The plaintiffs shall bring a motion under Rule 30.10 to obtain documents or productions relating to any plaintiff from a non-party at 9:00 am on Friday November 22, 2019 to meet the timeline for serving a further and better affidavit of documents; and
b) Any party may bring a motion for sanctions in the event of the failure of any plaintiff to serve a further and better affidavit of documents containing the disclosure required, and within the time provided by this order.
On the motion of the plaintiffs
[10] The orders the plaintiffs were seeking to appoint new litigation guardians to act for Patrick, for Diyah to file an order to continue her claims in this action as a stand-alone plaintiff, leave to amend the statement of claim and for an order setting a timetable for next steps were granted on consent in the context of Peel’s motion.
[11] This left only that part of the motion where Aparna requests an order setting out terms of accommodation for her at her continued examination for discovery. Those accommodations are set out in paragraph 2 of the affidavit Aparna has sworn in support of that relief:
a) Any questions shall be provided at least 48 hours in advance, so that she may use her assisted devices to help process those questions efficiently;
b) A support person of her choosing who could help provide both assistance with communications and/or emotional support as needed during her discovery shall attend with her;
c) Breaks shall be taken from questioning at her discretion;
d) Any questions posed to her on the day of her discovery shall be displayed through teletype on a TV monitor with an assistant available to help her to interpret such questions; and
e) She shall have 30 days to contemplate and/or change any answers given during her discovery after review of the discovery transcripts.
[12] The motion of Aparna for this relief is dismissed for the following reasons.
A. Advance notice of proposed questions
[13] Aparna seeks an order permitting her the accommodation of receiving written questions in advance of her oral examination for discovery. It is significant that she does not seek an examination for discovery by written questions and answers under Rule 35. She is therefore seeking a hybrid form of an examination for discovery.
[14] The form of an examination for discovery of a party to a civil action in Ontario is mandated by Rule 31.02. Rule 31.02(1) states as follows:
31.02 (1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court. R.R.O. 1990, Reg. 194, r. 31.02 (1).
[15] Subrule 31.02(2) then goes on to state as follows:
(2) Where more than one party is entitled to examine a person, the examination for discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise. R.R.O. 1990, Reg. 194, r. 31.02 (2).
[16] Rule 31.02(1) makes two things clear. The first is that an examination for discovery may take the form of an oral examination, or at the option of the examining party, in the form of written questions and answers. It is the examining party who controls the method of the examination for discovery. Second, there is a prohibition on the examining party to subject a person to both forms of examination except with leave of the court. This suggests that the forms of examination are mutually exclusive. It would be unfair for an examining party to conduct an alternate form of examination when one has already been chosen.
[17] Subrule 31.02(2) modifies subrule (1). Where more than one party is entitled to examine a person, it is mandatory that the examination for discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise. Therefore, consent of all parties entitled to examine the person must consent to another form of examination.
[18] In this action, Peel has already conducted an oral examination for discovery of Aparna Sanwalka on November 8, 2018. I heard submissions from counsel for Peel that this examination for discovery proceeded without objection, or any requirement for the accommodations she now seeks. It was only on the second day scheduled for her continued oral examination for discovery that Aparna’s counsel produced a letter from Dr. Kimmons dated August 20, 2015 to seek those accommodations, and the examination for discovery did not proceed for that reason.
[19] Rule 31.02 does not provide the party to be examined with the right to dictate or to seek the form that examination for discovery may take. In any event, as more than one party is entitled to examine Aparna, the examination for discovery shall take the form of an oral examination as Peel and the third and fourth parties do not consent to any other form. This would include the hybrid from of discovery that Aparna proposes.
[20] There is always the inherent jurisdiction of the court to control its own process. However, that authority must be exercised sparingly, and only after considering guiding principles set out in the authorities, the circumstances of the party requesting that relief, and the rights of all other parties to fair and proper discovery.
[21] None of the parties could direct me to a case involving the hybrid form of examination for discovery that Aparna proposes. The cases provided to me deal primarily with the discretion of the court to permit examinations for discovery by written questions and answers. A review of those cases reveals the following principles pertaining to the exercise of that discretion:
It is insufficient that discovery will be upsetting or stressful. In the absence of discovery abuse, the onus is on the party resisting oral discovery to establish by persuasive medical evidence that the party is unable to attend for discovery; Ferrara v. Roman Catholic Episcopal Corp. for the Diocese of Toronto in Canada, [1996] O.J. No. 2164 (Gen. Div.);
The onus on the party to be examined for another form of discovery is a high one because it is recognized that oral discoveries are preferable to written examinations in most cases: Botiuk v. Campbell, 2011 ONSC 1632;
Exemption from oral examinations should only be granted “in the clearest and most positive of cases, where the avoidance of certain injury to a litigant offsets the rights of litigants to due process under the Rules”: Sterling v. The Lower Nichola Indian Band et al., 2018 CanLII 59735 (Federal Court) at paragraph 12, and Ontario (Attorney General) v. Condominium Unit 1210, 2012 ONSC 5485 at para. 8.
[22] There is good reason for preferring oral examinations for discovery to exchanging questions and answers in writing, and for setting the bar high to justify making an order allowing for an exception to the general rule. This direct form of examination involves the rights of the examining party to confront the party making the claim in a safe environment, with a view to asking questions in a spontaneous manner. The confrontation by an adverse party over a discovery table more closely simulates the trial process than an exchange of written information, and allows for a defendant to question a plaintiff making allegations of wrongdoing face to face. It serves to reduce any effort to evade, and to obtain the truth of the material facts alleged in the claim or defence. Master Haberman distilled the specific reasons why oral discoveries are preferable in Botiuk by explaining that:
[44] The onus is a high one because it is recognized that oral discoveries are preferable to written examinations, in most cases. When a party is examined orally, he has little time to consider the reason for the question, to analyze how his response will impact on his position in the litigation or to provide a response that, though not necessarily dishonest, is somehow less than forthright. The oral process is a more spontaneous one, the pace of which makes it difficult for anyone other than a skilled manipulator of the facts to provide a dishonest account that is consistent throughout. Oral questions allows the examiner to put each seemingly innocuous question to the party being examined, without tipping his hand until the final question in a particular area. This surprise element is an important part of getting to the truth of the matter.
[23] In Ozerdinc Family Trust v. Gowlings, 2015 ONSC 2366, Master MacLeod (as he then was) addressed the need for persuasive medical evidence to allow another form of discovery this way:
[25] It is hard to quarrel with the need for cogent medical evidence. Where such evidence is persuasive, “unable to attend” should be interpreted to include “unable to attend without risk of serious harm”. I was referred to the decision of the Alberta Court of Queen’s Bench in Ms. R. v. W.A. [14] In that decision at paragraph 23 & 24 the court adopts the view that “if the plaintiff is able to demonstrate a likelihood of serious injury if she submits to the examination for discovery, then she is able to avoid the examination”. This is consistent with the view of Aitken J. in Kidd v. Lake. At paragraph 19 of that decision she cites earlier decisions of this court in which the court had adopted the view that competent children should not be subject to discovery if there was a significant risk of harm. Aitken J. stated that she did not take this “as meaning this is the only situation in which it would be appropriate for the court to exercise its discretion and deny an order for an examination.”[15]
[24] In the materials before me, I have only the letter from Dr. Kimmons dated August 20, 2015 for medical evidence to support Aparna’ s request for receiving advance notice of the questions that will be asked. A close review of that letter reveals that Dr. Kimmons wrote that letter to a lawyer, George Alexander Novak, in connection with Aparna’s involvement with the Children’s Aid Society (“CAS”) regarding her children. Dr. Kimmons set out the potential for misunderstandings or misperceptions on Aparna’s part if not accommodated because of attention deficit hyperactivity disorder, post traumatic stress disorder and adjustment disorder. He offered the professional opinion that these were legitimate diagnoses for which accommodations were required at that time. He did not provide an opinion with respect to the dyslexia mentioned in the letter.
[25] Dr. Kimmons further made baseline recommendations to accommodate Aparna, many of which find current expression in the motion before this court.
[26] I note that Dr. Kimmons was writing for Aparna in August 2015 about an upcoming assessment of parenting capacity. He recognized that the assessor would be a mental health professional, someone he expected would be better able than most people at recognizing the supports needed along the way. Dr. Kimmons also asked the reader to keep in mind that “appropriateness and utility of accommodation can vary on a day to day basis and that flexibility in this regard may be required.” He ended his letter by asking the reader to consider that the foregoing opinions be considered a “work in progress” rather than a final document addressing the disabilities and the accommodation that Aparna might require.
[27] I do not consider the letter by Dr. Kimmons to be sufficient to meet the test for this court to exercise discretion to order that Aparna is entitled to receive questions from counsel in advance of her continued examination for discovery for a number of reasons.
[28] First, the letter from Dr. Kimmons is over four years old. The letter was written to a lawyer not involved in these proceedings, and in the context of a pending assessment of parenting capacity by the Children’s Aid Society.
[29] Second, the letter itself excludes support for accommodation for a dyslexia condition that Aparna claims, leaving psychological mood or behavioural disorders to address. These disorders would manifest themselves at an oral examination for discovery if questions were supplied in advance in any event. Aparna will have counsel there to ensure that the cadence of the examination and the nature of the questions are appropriate to allow her to provide proper answers.
[30] Third, even if Dr. Kimmons had prepared a more recent letter referencing this action and providing opinion evidence to support Aparna’s request for accommodation when her examination continued, that would not be proper evidence before the court unless Dr. Kimmons had sworn an affidavit. Justice D.M. Brown made it clear in Sanzone v. Schechter, 2016 ONCA 566 that opinion evidence of an expert on a motion must be adduced through an affidavit from that expert:
[16] As a general rule, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observation of or participation in the events in issue, as explained in Westerhof v. Gee Estate, 2015 ONCA 206, 310 O.A.C. 335, at paras. 60-62. A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060, [2014] O.J. No. 1802, at para. 29, aff’d 2014 ONCA 887.
[31] A letter from Dr. Kimmons dated August 20, 2015 is therefore inadmissible. In its absence, there is no cogent medical evidence before the court to support this request. This ruling is founded on principles of evidence that concern how the opinion of an expert may be accepted by the court into evidence on a motion. It has nothing to do with the issue that the letter as an exhibit to someone else’s affidavit is hearsay evidence, which is an argument on which none of the counsel made submissions.
B. The presence of a support person
[32] A support person may accompany Aparna to the examination for discovery, but shall not be present in the room when she is examined for discovery. The support person may wait for Aparna in the waiting room to speak with her during breaks, provided that the support person shall not be a witness at trial.
C. Requirement for breaks
[33] The customary courtesy of taking breaks should be observed at the examination for discovery. There is no need for a further order.
D. Questions posed by teletype during the discovery
[34] There is no medical evidence that Ms. Sanwalka requires the projection of questions on to a screen or monitor during her examination for discovery to properly answer any question. There is no evidence before the court as to her eyesight, hearing, ability to read or digest information, or of the dyslexia she claims would inhibit her ability to hear questions as they are asked and to process each question as and when it is asked to provide her answer without waiting for conversion of that question into print.
[35] It has not escaped my attention that counsel for Bi–Views has filed evidence in response to Aparna’s motion that she was able to testify before a Standing Committee of the Ontario legislature on November 14, 2014 about the need for oversight of children’s aid, and fielded questions from committee members without difficulty. This attendance occurred eight months before Dr. Kimmons wrote his letter.
[36] There is also evidence attached to the responding affidavit of Charmaine Kelsie from Aparna’s Linkedin profile that Ms. Kelsie accessed online. In that profile, Aparna described her position as the Office Manager at the Counselling Institute until September 2016, as a business owner, and currently as the Executive Director/Education Advocate for The Education Solution, where she supports the parents of special needs children. In this profile, Aparna lists her skills, one of which is public speaking.
[37] I conclude from this evidence that Aparna is capable of answering questions put to her without the assistance of audio-visual support.
E. 30 days to contemplate and/or change any answers
[38] An order in the nature of this request is not necessary in view of Rule 31.09(1). Rule 31.09(1) provides that, where a party subsequently discovers that the answer given to a question at an examination was incorrect or incomplete when made, or is no longer correct or complete, a party shall forthwith provide the information that corrects or completes the answer in writing to every other party.
[39] Subrule 31.09(2) further provides that the information in writing to correct or complete and answer may be treated at trial as if it formed part of the original examination for discovery of the person who was examined.
[40] The provisions of Rule 31.09 already allows Aparna an opportunity to correct or complete any answer she gives at her continued examination for discovery. After giving that further information, the examining parties may require that any new information be verified by an affidavit, or that she undergo a further examination for discovery. Rule 31.09 provides a careful balance to assure the party who has been examined that they have the opportunity to correct or complete their discovery evidence, and the examining parties to seek verification of any information as truthful.
Costs
[41] I encourage the parties to resolve the issue of costs for these motions between them. If they require the involvement of the court to determine costs, the following shall apply:
The party seeking costs shall serve and file written submissions by November 15, 2019.
The party responding to costs shall then have until November 29, 2019 to serve and file responding submissions.
Written submissions shall consist of no more than two double spaced, type written pages, not including offers to settle or any bill of costs.
No submissions in reply shall be permitted without leave.
[42] All written submissions with respect to costs shall be sent by fax or by email to my judicial assistant, Ms. Melanie Powers, at 905-456-4834, or melanie.powers@ontario.ca in Brampton.
Emery J.
Released: November 5, 2019
COURT FILE NO.: CV-13-4850-00B1
DATE: 2019 11 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
APARNA SANWALKA, personally, DIYAH SANWALKA, and PATRICK ROY SANWALKA HARRIS, minors, by their Litigation Guardian, APARNA SANWALKA
Plaintiffs
– and –
THE REGIONAL MUNICIPALITY OF PEEL and PEEL HOUSING CORPORAITON
Respondents
AND BETWEEN:
BI-VIEWS BUILDING SERVICE LTD., operating as BIVIEW BUILDING SERVICE LTD., BIVIEW BUILDING SERVICES LTD. and BIVIEW BUILDING SERVICES, JOE PACE & SON CONTRACTING LIMITED, JOE PACE & SON CONTRACTING INC. and INNOVATIVE CONTENT SOLUTIONS INC.
Third Parties
– and –
TRIPLE A CONTRACTING AND RESTORATION LIMITED and BARRAGER’S CLEANERS LIMITED
Fourth Parties
ENDORSEMENT
EMERY J.
Released: November 5, 2019