COURT FILE NO.: 16-69706

DATE: 2019/02/08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MOHAMED ISSA

Plaintiff

– and –

SAMI EL KESSERWANI

Defendant

Jordan Dahan, for the Plaintiff

Douglas Treilhard, for the Defendant

HEARD: October 30, 2018

RULING ON MOTION

Corthorn J.

Overview

[1] The Rules of Civil Procedure prescribe consequences for a litigant who fails to disclose a document (r. 30.08(1)), fails to answer a question on discovery (r. 31.07(1)), or fails to correct an answer given on discovery (r. 31.09(1)). Subsequent to the introduction of those consequences, the number of motions brought to obtain answers to undertakings and questions refused declined over time.

[2] Refusals and undertakings motions have not, however, been completely eliminated. Some litigants choose not to risk that a defaulting opposing party may ultimately secure, at trial, relief from the consequences of failure to fulfil documentary and oral discovery obligations. The defendant in this action chose not to take that risk.

Background

[3] The plaintiff alleges that he was injured as a result of a car accident in which he was involved in October 2015. The collision between the plaintiff’s car and the defendant’s car occurred at an intersection controlled by traffic lights.

[4] The plaintiff alleges that his car was struck as he made a left turn from Blohm Drive southbound, onto Hunt Club Drive eastbound. The plaintiff alleges that his car was struck by the defendant’s car which, while travelling westbound on Hunt Club Drive, proceeded into the intersection on a red light.

[5] The defendant denies liability and alleges that the plaintiff is entirely responsible for the collision. Liability for the collision is an issue in this action.

[6] The plaintiff alleges that the injuries he suffered as a result of the collision have caused “permanent and serious impairments of important, physical, mental and psychological functions” (statement of claim, para. 6). The injuries suffered are alleged to include, but not to be limited to, nine parts of the plaintiff’s body. The plaintiff alleges that he experiences in excess of 15 physical and psychological symptoms associated with the injuries.

[7] The prayer for relief in the statement of claim includes claims for general and special damages. The quantum of damages claimed under each category is $1,000,000—for a total of $2,000,000.

[8] The plaintiff’s pleading includes each of the following headings:

• Injuries and Symptoms (paras. 6 – 9);
• Pain and Suffering and Loss of Enjoyment of Life (paras. 10 – 11);
• Loss of Income and Competitive Advantage (para. 12);
• Loss of Household and Home Maintenance Capacity (para. 13);
• Treatment and Cost of Care (paras. 14 – 15); and
• Other Pecuniary Damages (para. 16).

[9] The allegations under all but the first of those headings are boilerplate. The allegations could be cut from the statement of claim in this action and pasted into the originating process of any other personal injury action. The allegations are in no way unique to the plaintiff in this action.

[10] In his pleading, the defendant denies that the plaintiff sustained any injuries as a result of the collision. The statement of defence includes a threshold defence and addresses the impact of the plaintiff’s entitlement, if any, to collateral benefits. Both entitlement to and quantum of damages are issues in this action.

[11] Examinations for discovery were conducted in January 2018. The defendant was examined on the 29th and the plaintiff on the 31st of that month.

[12] A transcript of the examination for discovery of the plaintiff is included in the record. From the transcript it appears that:

• The examination commenced at 10:04 a.m. and concluded at 4:20 p.m.;
• A half-hour break was taken for lunch;
• A number of short breaks, ranging from two to ten minutes, were taken throughout the examination; and
• The plaintiff gave 42 undertakings, answered two questions “under advisement”, and refused to answer 12 questions.

[13] The uncontradicted evidence before the court is that the examination of the plaintiff in January 2018 lasted five hours and 20 minutes. The defendant did not exhaust the seven hours of examination time to which he is entitled, pursuant to r. 31.05(1) of the Rules of Civil Procedure.

[14] The defendant brings his motion for relief with respect to the oral and documentary discovery process.

The Issues

[15] The following four issues are determined on this motion:

1. Is a deadline to be set by which the plaintiff is required to answer the undertakings and questions refused?
2. Is the defendant entitled to continue the examination for discovery of the plaintiff?
3. If the answer to Issue No. 2 is “yes”, is the defendant entitled to exceed the seven-hour maximum for an examination for discovery?
4. Is a deadline to be set by which the plaintiff is required to serve an affidavit of documents?

The Motion Records

[16] Before I address the substantive issues, I shall deal first with a number of issues with respect to the contents of the records filed on the motion.

a) Citation of Statutes in Pleadings

[17] When the pleadings were drafted, the lawyers of record for the parties each made an error all too frequently made. Both pleadings are deficient because of the manner in which reliance on statutory provisions is pleaded. In their respective pleadings, each party lists the provincial statutes upon which they rely and cites them in their entirety.

[18] Reliance on a statute is not fully particularized unless the citation includes the specific section or sections of the statute upon which a party relies. The deficiency in the parties’ respective pleadings can be addressed by (a) a demand for particulars of the specific sections from each statute upon which the opposing party relies, and (b) a response from the opposing party identifying the specific sections upon which he relies.

b) Pleadings as Part of a Record

[19] Both the moving party’s and the responding party’s respective records include copies of the pleadings. The pleadings are, in each case, included as an exhibit to an affidavit. A pleading in the action, which is the subject of a motion, is part of the record in the action. As such, a pleading is included in the motion record as a discreet, separately tabbed document. ‘Evidence’ of a pleading in the subject action is neither required nor proper.

c) Responding Motion Record

[20] The only evidence filed in response to the motion is an affidavit, sworn on October 16, 2018, from Anastasia Sukalsky (“the Sukalsky Affidavit”). Ms. Sukalsky is the lawyer who attended with the plaintiff for his examination for discovery. She is not the plaintiff’s lawyer of record.

[21] There is no substantive evidence in the Sukalsky Affidavit.

[22] The Sukalsky Affidavit includes eight numbered paragraphs:

• Paragraph nos. 2, 3, and 4 identify and refer to the motor vehicle accident report, the statement of claim, and the statement of defence, respectively;
• In paragraph nos. 5, 6, and 7, Ms. Sukalsky states her beliefs with respect to (a) the propriety of the one refusal that remains in issue, (b) examination for discovery of the plaintiff in excess of seven hours, and (c) dismissal of the defendant’s motion; and
• Paragraphs 1 and 8 are the ‘typical’ introductory and conclusory paragraphs included in affidavits. The ‘typical’ concluding paragraph, stating that the affidavit is provided or sworn in support of the subject motion “and for no other or improper purpose”, is not required.

[23] The Sukalsky Affidavit does not include a refusals and undertakings chart as required pursuant to r. 37.10(10)(b). Ms. Sukalsky does not explain why such a chart is not included in the responding motion record.

[24] In summary, the Sukalsky Affidavit is of no assistance to the court in determining the motion.

d) Supplementary Motion Record

[25] On the return of the motion, the defendant sought leave permitting him to rely on a supplementary motion record. That record is dated October 24, 2018. Its contents are limited to a nine-paragraph affidavit sworn by an assistant at the office of counsel for the defendant (“the Timpson Affidavit”).

[26] It is undisputed that the supplementary motion record was served on counsel for the plaintiff. The date on which it was served is not before the court.

[27] The defendant was not permitted to file the supplementary motion record prior to the return of the motion. The attempt at filing was made subsequent to the deadline for filing prescribed by the Rules of Civil Procedure.

[28] The Timpson Affidavit includes, as an exhibit, an updated undertakings and refusals chart (“the Chart”). That document addresses:

a) Answers to undertakings received in September and October 2018. The latter include responses provided in or under cover of a letter dated October 16, 2018 from the office of counsel for the plaintiff; and

b) “Agreements of October 22 and 23, 2018” pursuant to which the plaintiff agreed to:

i) Request the event data recorder for his car from his insurer (Refusal No. 1 and Undertaking No. 4);

ii) Provide prescription summaries for five years prior to the date of the collision (Refusal No. 7 and Undertaking No. 3);

iii) Produce, by November 15, 2018, an expert’s report with respect to loss of income (Undertaking Nos. 12 and 14); and

iv) Provide authorizations executed by the plaintiff permitting various entities to produce documents and records to counsel for the defendant. The documents and records include, for example, the plaintiff’s employment file with the Ottawa Islamic School, the plaintiff’s Ontario Works file, and the records (if any) of a specific psychiatrist (Undertaking Nos. 13, 19, 21 and 32).

[29] The uncontradicted evidence of Ms. Timpson is that on October 22, 2018 (approximately one week prior to the return of the defendant’s motion), counsel for the defendant received from plaintiff’s counsel an expert’s report quantifying the cost of the plaintiff’s future care and treatment at $11,000,000. There is no evidence of the date of that report.

[30] The Sukalsky Affidavit makes no mention of an expert’s report with respect to cost of future care or that it was the intention of plaintiff’s counsel to serve such a report within a matter of days following the date on which that affidavit was sworn (and a matter of days prior to the return of the defendant’s motion).

[31] It would not have been possible for plaintiff’s counsel to secure a cost of care report between October 16 and 22 (the latter being the date of service), unless the expert had been retained well in advance of October 16. Considering the plaintiff’s position—that a “further” examination of the plaintiff is the issue—it is perplexing that the plaintiff would not disclose, in the responding motion record, the impending service of that expert’s report.

[32] Plaintiff’s counsel initially objected to the defendant being granted leave to file and rely on the supplementary record; that objection was ultimately withdrawn. In the end, there was no position taken, on behalf of the plaintiff, with respect to the request for leave to rely on the supplementary motion record.

[33] It is clear from the Chart that, as of October 16, 2018, the plaintiff had not addressed each of the refusals and undertakings. For example, on October 22, 2018 the following items were addressed by what is described in the Chart as an “Agreement”: Refusal Nos. 1 and 6 and Undertaking Nos. 3, 4, 12 and 14. Similarly, by way of an Agreement dated October 23, 2018, Refusal No. 7 and Undertakings 13, 19, 31 and 32 were addressed.

[34] The issues addressed in the plaintiff’s factum are (a) the only refused question that remains in issue, and (b) the oral discovery process. The plaintiff’s factum is dated October 16, 2018—approximately one week before either of the “Agreements” was reached and before the date on which the Timpson Affidavit (Including the Chart) was sworn.

[35] There is nothing before the court to explain how counsel for the plaintiff could have known on the date the factum was signed that all but one refusal and all undertakings would subsequently be dealt with prior to the return of the motion. I draw an inference and find that as of October 16, 2018, plaintiff’s counsel intended to take additional steps, prior to the return of the motion, to fulfil outstanding undertakings and respond to refused questions.

[36] Not only is there no prejudice to the plaintiff if the supplementary motion record is before the court on the motion—the plaintiff would be prejudiced if the supplementary motion record was not before the court. There would be no evidence of steps taken by the plaintiff to answer undertakings and refused questions, including the steps taken subsequent to October 16, 2018.

[37] The defendant is granted leave to rely on the supplementary motion record. Counsel for the defendant did the work that plaintiff’s counsel failed to do. Without the benefit of the Timpson Affidavit, the court would have lacked evidence relevant to the issues to be determined on the motion.

[38] I turn to the four substantive issues.

Issue No. 1 - Undertakings and Refusals

[39] On a motion to compel answers to undertakings, both the moving party and the responding party are required to file a chart in accordance with Form 37C (r. 37.10(10)). In their respective charts, the parties are to set out:

(i) the issue that is the subject of the refusal or undertaking and its connection to the pleadings or affidavit,

(ii) the question number and a reference to the page of the transcript where the question appears, and

(iii) the exact words of the question.

[40] The accuracy of the Chart was not disputed by the plaintiff on the return of the motion. I rely on the Chart to determine the issues on this motion.

a) Refusals

[41] The parties are in agreement that, as of the return date for the motion, the only refused question that remained unanswered was Question 537: “Before the accident, were you ever involved in another motor vehicle accident?”

[42] Counsel for the plaintiff refused to permit the plaintiff to answer that question because it was “open-ended”. Counsel for the plaintiff permitted her client to answer the question for the three-year period prior to the October 2015 collision. In his answer, the plaintiff described a collision in which he was involved in Ottawa in that three-year period.

[43] Is the plaintiff required to answer the question as it relates to the five-year period prior to the date of the collision? He is not. The number of motor vehicle accidents in which the plaintiff was involved prior to October 2015 is not relevant to any issue in the action.

b) Undertakings

[44] The majority of the undertakings were answered as of October 16, 2018. The undertakings that remained unanswered were nos. 4, 11, 12, 13, 14, 19, 21, 32, and 35. Three months have elapsed since the Chart was prepared. In the normal course, it would be expected that the steps required to fulfil the undertakings have been taken in that time.

[45] The extent to which the defendant was required to pursue answers to undertakings is addressed in the Costs section of this endorsement. Given the shortcomings in the manner in which the plaintiff addressed his obligations with respect to the oral and documentary discovery process, a deadline is required by which undertakings and questions previously (but no longer) refused are to be answered. The relief granted in that regard is set out in the Disposition section of this endorsement.

Issue No. 2 - Examination for Discovery of the Plaintiff

a) Positions of the Parties

[46] The defendant requests an order requiring the plaintiff to re-attend for “a continuation of his examination for discovery to answer questions arising out of his answers to undertakings and refused questions that this court may order him to answer”. The relief requested by the defendant suggests that the examination for discovery of the plaintiff is, as yet, incomplete.

[47] The plaintiff’s position is that the examination for discovery is complete; as a result, the defendant must satisfy the court that he is entitled to a “further examination for discovery” of the plaintiff.

b) The Law and Analysis

[48] Given the divergent positions of the parties, it is necessary to determine whether the examination for discovery of the plaintiff was completed in January 2018. If so, then r. 31.03(1) applies and the defendant requires leave of the court to conduct a “further” examination for discovery of the plaintiff. If not, then the defendant must satisfy the court that answers to undertakings and previously refused questions give rise to follow-up questions that fulfil the purpose of discovery (Senechal v. Muskoka (Municipality), 2005 11575 (Ont. S.C.), at paras. 5, 7).

[49] By giving an undertaking to answer a question posed on examination for discovery, the party giving the undertaking acknowledges that the question asked is proper (S.E. Lyons and Son Ltd. v. Nawoc Holdings Ltd. (1978), 1978 1429 (ON SC), 20 O.R. (2d) 234 (H.C.J.), at para. 4). An examination for discovery is not complete until all proper follow-up questions have been asked and answered (Blais v. The Toronto Area Transit Operating Authority, 2011 ONSC 1880, 105 O.R. (3d) 575, at para. 62).

[50] At para. 7 of his decision in Senechal, Master MacLeod (as he then was) provided examples of situations in which it is appropriate for the court to make an order requiring a party to attend for follow-up questions to complete the party’s examination for discovery. In providing those examples, Master MacLeod considered the following (at para. 5):

Generally speaking, had … the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer than genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question had been answered.

[51] The exhibits to the Timpson Affidavit include two examples of the documents received in answer to undertakings and questions refused. The examples are intended to highlight discrepancies between the plaintiff’s discovery evidence and the contents of the documents produced.

[52] The examples relate to the plaintiff’s claim for damages for loss of income and loss of competitive advantage. First, the plaintiff’s discovery evidence is that, in 2014 prior to the collision, he stopped working at the Ottawa Islamic School because he went on paternity leave. A copy of the plaintiff’s Employment Insurance file was produced in answer to Undertaking No. 15. Included in that file is a copy of the Record of Employment issued to the plaintiff in June 2014 by the School. The response to box 16, the “Reason for issuing this ROE”, is “Shortage of work / End of contract or season”. Through follow up questions with respect to the answer to Undertaking No. 15, the defendant seeks to clarify the discrepancy between the plaintiff’s answer on examination and the contents of the Record of Employment.

[53] Second, the plaintiff’s discovery evidence is that, prior to the collision, he worked at an IT company called “CGI”. Taken under advisement (and therefore a refusal) was a request made for the plaintiff to produce a copy of his complete employment file from CGI. Ten days prior to the return of the motion, the question was answered. The answer given was: CGI does not have an employee file for “any employee matching the date of birth and social insurance number [for the plaintiff].” Through follow up questions with respect to the answer to the previously refused question, the defendant seeks to clarify the discrepancy in the evidence with respect to the plaintiff’s pre-accident employment history.

[54] The answer to the refused question with respect to CGI was provided in October 2018. Yet the letter produced by counsel for the plaintiff in response to the refused question is dated February 22, 2018 (“the February Letter”).

[55] The February Letter is from “CGI Information Systems Management Consulting” and is addressed to a “Mr. Parks” at the office of the plaintiff’s counsel. The letter is identified as being in response to a letter of request (a) dated February 15, 2018, and (b) addressed to Canadian Global Information. The author of the February Letter says that the latter name “is not our company’s name”.

[56] The contents of the February Letter gave rise to an obligation on the plaintiff’s part to either correct his answer about employment with CGI or to continue in his efforts to identify the IT company to which he referred as “CGI” when examined in January 2018. There is no evidence before the court to indicate that the plaintiff is making any effort to identify the name of the IT company.

[57] I find that:

a) The plaintiff gave an incorrect answer about his employment history;

b) Upon receipt of the February Letter, the plaintiff was in a position to correct that answer; and

c) The plaintiff waited eight months before doing so and only did so because the return date for the defendant’s motion was approaching.

[58] The plaintiff has now answered or is in the process of answering over 40 questions posed on his examination for discovery that, by the very act of undertaking to answer or subsequently answering, he acknowledges are proper questions. Not all of the undertakings given and questions refused (for the latter, that the plaintiff now agrees to answer) have been answered. In the circumstances, it is understandable that the defendant has not provided the court with a list of the questions his counsel intends to pose, if permitted by the court to do so, in follow up to the answers received. In the context of the discovery process in this action, it would not be reasonable to require the defendant to provide a list of proposed follow up questions.

[59] I find that appropriate follow-up questions will permit the defendant to know the case he has to meet, for example with respect to the plaintiff’s claim for damages for loss of income (Cushing v. Beaulieu, 2015 ONSC 1871, at para. 39). I also find that the answers to the follow-up questions will assist the defendant in preparing his case (Ramdath v. George Brown College, 2012 ONSC 2747, at paras. 32, 93).

[60] In summary, the plaintiff shall re-attend for the continuation of his examination for discovery. The defendant shall be permitted to pose questions that are properly in follow-up to answers to undertakings and to questions previously, but no longer, refused.

Issue No. 3 - Duration of Examination for Discovery of the Plaintiff

a) Positions of the Parties

[61] The defendant requests leave to exceed, if necessary, the seven-hour maximum for the examination for discovery of the plaintiff. The defendant does not propose a specific amount of time for the completion of the examination. The plaintiff’s position is that the defendant does not require more than the maximum seven hours to complete the examination for discovery of the plaintiff.

b) The Law and Analysis

[62] Rule 31.05.1(2) sets out the factors to be considered when determining whether a party is entitled to exceed the seven hours prescribed for the examination for discovery of an opposing party. Six specific factors are identified together with a seventh general factor (“any other reason that should be considered in the interest of justice”).

[63] Applying the six specific factors to the matter before the court, I find as follows:

a) The “amount of money in issue” is significant. The claim for damages for cost of care is supported by an expert’s report valuing the plaintiff’s damages under that category at $11,000,000. The plaintiff is also advancing a claim that he is unable to work as a result of the accident. The damages for past and future loss of income will add to the “amount of money in issue”;

b) The issues to be determined include:

i) The plaintiff’s claim that he has suffered both physical and psychological injury;

ii) The defence theory that the plaintiff’s pre-accident condition caused or contributed to some of the symptoms that the plaintiff alleges, are exclusively related to the October 2015 collision; and

iii) Liability for the collision.

The factual and legal issues are sufficiently complex that it will assist the court at trial if proper follow-up questions are answered;

c) It is reasonable in this two-party action, in which the defendant is facing a seven or eight-figure claim for damages, for the examination for discovery of the plaintiff to exceed seven hours in length;

d) The financial positions of the parties are not relevant on this motion;

e) The plaintiff was not properly or fully prepared for the discovery process. A number of documents that were the subject of undertakings were in the power, possession, or control of the plaintiff prior to his examination for discovery (i.e., photographs of the damage to his vehicle, medical records, employment records, and documents from the accident benefits insurer’s file). Those documents are relevant to the plaintiff’s claim and should have been produced prior to the examination for discovery of the plaintiff.

In addition, the parameters of the plaintiff’s claim for damages for loss of income were not fully certain at the date of examination for discovery (see pp. 203-231 of the transcript). That uncertainty led to undertakings being given. The plaintiff’s conduct in terms of his level (or lack) of preparedness for examination for discovery is relevant to the outcome on the motion; and

f) A denial or refusal to admit anything that should have been admitted is not relevant on this motion.

[64] The defendant has one hour and 40 minutes remaining from the seven-hour maximum, prescribed by the Rules of Civil Procedure, in which to complete the examination for discovery of the plaintiff. To that amount I add another two hours. In total the defendant has three hours and 40 minutes to complete the examination for discovery of the plaintiff.

Issue No. 4 - Plaintiff’s Affidavit of Documents

[65] The plaintiff consents to the relief requested with respect to his affidavit of documents. A deadline is set for service of that document.

Disposition

[66] I order as follows:

1. The plaintiff shall answer the undertakings listed by number and on the terms set out below:

Undertakings

4. In the event the plaintiff has not already secured from his motor vehicle insurer the event data recorder for his vehicle, he shall do so and, within 30 days of the date of this order, he shall make the event data recorder available for inspection to the defendant or his authorized representative;

5. The plaintiff shall, within 30 days of the date of resolution of his LAT application, advise the defendant of such resolution including the terms of the resolution;

12 and 14

If the plaintiff failed to produce the expert’s report (or experts’ reports) by November 15, 2018, as undertaken, he shall produce the experts’ reports within 30 days of the date of this order;

13, 19, 21, and 32

If the plaintiff has not provided one or more of the authorizations permitting release of documents and information to the office of counsel for the defendant, he shall provide such authorizations to counsel for the defendant within 30 days of the date of this order; and

35. The plaintiff shall, within 30 days of the date of this order, produce to the office of counsel for the defendant a complete copy of the plaintiff’s CAMH file, including the records related to the plaintiff’s admission to CAMH in January 2018.

36. In the event the plaintiff is unable to comply with any part of paragraph 1, he shall, within 40 days of the date of this order provide the defendant with copies of all written correspondence (including emails) sent or received as evidence of his efforts to comply with that part of paragraph 1.

37. The plaintiff shall re-attend for the continuation of his examination for discovery to answer questions that are properly in follow-up to answers to undertakings and to questions previously, but no longer, refused:

a) On a date to be agreed upon by counsel for the parties;

b) In Toronto, unless the parties otherwise agree; and

c) For no more than an additional three hours and 40 minutes.

4. The plaintiff shall, within 30 days of the date of this order, serve the defendant with a copy of the plaintiffs’ sworn affidavit of documents.

5. The balance of the defendant’s motion is dismissed.

Costs

[67] The evidence is uncontradicted with respect to efforts made by the office of defendant’s counsel to obtain answers to undertakings given and to questions refused by the plaintiff. In summary, the steps taken in that regard are (all dates are in 2018):

April 11 - A letter from defendant’s counsel is sent to plaintiff’s counsel requesting (a) answers to undertakings and refused questions; and (b) the plaintiff’s position on questions taken under advisement;

May 1 - The same letter is repeated;

June 8 - A law clerk from the office of counsel for the defendant sends counsel for the plaintiff an email to which is attached an undertakings chart. A request is made for outstanding undertakings to be answered “at your earliest convenience”;

July 23 - The law clerk forwards to plaintiff’s counsel a copy of the June 8 email AND repeats the request for responses, etc.;

Aug. 9 - The law clerk sends a letter by email to plaintiff’s counsel. The letter lists 36 undertakings that remain outstanding and eight questions that were either refused or taken under advisement. A request is made for answers and the plaintiff’s position, respectively, “at your earliest convenience”;

Aug. 23 - The defendant’s counsel receives a copy of the transcript from the examination for discovery of the plaintiff;

Aug. 28 - The notice of motion, including an undertakings and refusals chart, is served on plaintiff’s counsel. A return date of October 30, 2018 is identified in the notice of motion;

Sept. 21 - The defendant’s motion record is served on counsel for the plaintiff; and

Oct. 16 - The plaintiff’s responding motion record, factum, and book of authorities are served on the defendant’s counsel.

[68] As a result of bringing the motion, the defendant obtained the relief requested with the exception of that related to one refused question. All of the undertakings and questions refused were answered or addressed by way of agreement in the weeks that followed service of the motion record.

[69] The relief granted on the motion relates primarily to the continuation of the examination for discovery of the plaintiff and to service of the plaintiff’s affidavit of documents.

[70] Was it absolutely necessary for the defendant to bring the motion? It was not. The defendant could have chosen to rely on the Rules of Civil Procedure that address the failure of a party to disclose a document (r. 30.08(1)), the failure of a party to answer a question on discovery (r. 31.07(1)), and the obligation on a party to correct answers given on discovery (r. 31.09(1)).

[71] The defendant is facing a significant claim for damages. The damages claimed and as set out in the valuation of the cost of future care may well exceed the third party insurance limits available to the defendant. Regardless of any insurance limits issue, the defendant is entitled to (a) know the case he will have to meet, and (b) take the steps necessary to prepare for trial. The defendant is well within his rights to take steps, such as this motion, in an effort to ensure that he is, including at trial, in a position to respond to the claims made against him.

[72] The level of success achieved by the defendant on the motion supports an award of costs in the defendant’s favour in any event of the cause.

[73] I recognize that the plaintiff is not in a position to pay costs. The plaintiff’s inability to pay costs could, if costs are payable forthwith, result in the plaintiff being precluded from proceeding with his action. It is not my intention that costs awarded to the defendant prohibit the plaintiff from doing so.

[74] In summary, the plaintiff shall, in any event of the cause and only upon a final resolution of the action by way of a negotiated settlement or trial, pay to the defendant his costs of the motion.

[75] In the event the parties are unable to agree upon one or both of the scale for and quantum of costs, they shall make submissions as follows:

a) The submissions shall be limited to a maximum of four pages (excluding the bill of costs);

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;

c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;

d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages;

e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this ruling is released; and

f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.

[76] If no submissions are delivered pursuant to subparagraph (e) above, there will be no further order with respect to costs.

Madam Justice Sylvia Corthorn

Released: February 8, 2019

COURT FILE NO.: 16-69706

DATE: 2019/02/08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MOHAMED ISSA

Plaintiff

– and –

SAMI EL KESSERWANI

Defendant

RULING ON MOTION

Madam Justice Sylvia Corthorn

Released: February 8, 2019