COURT FILE NO.: 14-62800
DATE: March 4, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
APRIL ROMAIN, CODY ROMAIN, HAILEY MCGOVERN and TIFFANY MCGOVERN, BY THEIR LITIGATION GUARDIAN APRIL ROMAIN, AND JOSEPH MCGOVERN
Plaintiffs
– and –
ALLEN REID AND D-SQUARED CONSTRUCTION LTD.
Defendants
Hamish Mills-McEwan for the Plaintiffs
Douglas Treilhard for the Defendants
HEARD: March 3, 2020
REASONS ON A MOTION FOR THIRD PARTY PRODUCTION
S. GOMERY, J.
[1] On July 11, 2013, Martin McGovern died in a motorcycle accident. His widow April Romain, and her three children Cody, Hailey and Tiffany, have sued Allen Reid, the driver of the dump truck that collided with Mr. McGovern’s motorcycle, and D-Squared Construction Ltd., the truck’s owner. Ms. Romain and her children seek damages under the Family Law Act for, among other things, loss of guidance, care and companionship they expected to receive from Mr. McGovern.
[2] In this motion under rule 31.10, the defendants seek production of the complete file of the Children’s Aid Society of Ottawa (the “CAS”) with respect to Ms. Romain and her three children, from 1999 to present. The defendants contend that they need the record in order to assess the quality of the relationship between the plaintiffs and Mr. McGovern. They argue that, given the nature of the plaintiffs’ claim, they must expect that all details about their relationship with Mr. McGovern are “fair game”.
[3] At the hearing of the motion, I told counsel that I was dismissing it, with reasons to follow. These are my reasons.
[4] A party seeking production of records from a third party must persuade the court that they contain information relevant to the material issues in litigation and that it would be unfair not to obtain production prior to trial; Ontario (Attorney General) v. Ballard Estate, 1995 CanLII 3509 (ON CA), [1995] O.J. No. 3136, 26 O.R. (3d) 39 (C.A.). Before the court balances these considerations, however, the moving party must show, pursuant to the test in r. 31.10(2), that it has been “unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine”.
[5] The defendants have examined Ms. Romain for discovery. During the examination, she referred to the CAS’ involvement in her family on various occasions. She testified that Mr. McGregor was addicted to drugs when she was pregnant with their two daughters, and that the CAS prohibited him from living with Ms. Romain and the children for about two years after Tiffany’s birth in 2004. The plaintiffs have also disclosed hospital, medical and court records that show that the CAS had further involvement with the family. They have disclosed a 2007 court order, for example, that granted custody of the children to Ms. Romain, and restricted Mr. McGregor’s access to supervised visits.
[6] Despite this evidence, defence counsel asked Ms. Romain very few questions about the nature and extent of the CAS’ involvement. Counsel for the defendants did not ask her, for example, whether CAS workers interviewed her, Mr. McGregor and the children and, if so, on how many occasions; if CAS workers conducted any home visits; how many times Ms. Romain contacted the CAS and why; if she recalled any particular workers; if the CAS referred Ms. Romain or Mr. McGregor for counselling or advised her to take any other steps or, if so, whether she did so; or whether the CAS was involved in supervising Mr. McGregor’s visits pursuant to the 2007 order.
[7] Lawyers for the defendants have not, to date, conducted any examinations for discovery of the three other plaintiffs. Cody, Hailey and Tiffany are now between 15 and 20 years old. There is no suggestion that they would be incapable of testifying. They could also be asked about their relationship with Mr. McGregor and what, if anything, they recall about the CAS’ involvement with the family.
[8] The evidence that the defence could obtain from the plaintiffs on these topics would permit the court to assess the potential probative value of the CAS record. It would also provide the defendants – and the court – with insight into the nature and scope of information that the CAS may have in its possession.
[9] Because they have not pursued this discovery, the defendants cannot even tell the court what kinds of documents or information they expect to find in the CAS records. They instead seek a very broad production order that would capture every type of record collected or created by the Society over a 21-year span.
[10] In Finlayson v. Taylor Leibow Inc., [2008] O.J. No. 2295 (ONSC), the Court dismissed a defence motion for production of records from a children’s aid society. Cavarzan J. concluded at para. 17 of his decision that the motion amounted to “a speculative and unmeritorious fishing expedition for evidence to assist the defence”.
[11] In Kabutangana v. Coachman Insurance Co., 2016 ONSC 6330, J.C. George J. likewise rejected a motion for production of a CAS record. At para. 46, he held that the defendant’s primary purpose was to gain information that might assist in an attack on the plaintiff’s credibility, and that this did not meet the test under r. 31.10:
The fact that something might touch upon credibility does not equate to relevance. To the extent that there might be relevant information within the file, it is significantly outweighed by the unwarranted invasion of privacy that would result. In other words, ordering production would be a disproportionate response. Any assistance it might provide the defendant and/or the court, is outweighed by its intrusiveness.
[12] I share the concerns expressed in Finlayson and Kabutangana about the potential impact of unduly broad production orders from child welfare agencies, whose records contain deeply personal information. But I do not even have to weigh this consideration, because the defendants have not, through the exercise of discovery they are entitled to as of right, established that the CAS record could yield any probative evidence that they could not otherwise obtain.
[13] Defence counsel argues that production of the CAS record now is preferable to production at trial. Given the lack of evidence about the contents of the CAS file at this stage of the litigation, the trial judge would be better placed that I am to assess its potential probative value against the prejudicial impact of a production order. In any event, the spectre of evidentiary surprises at trial cannot be invoked to circumvent the basic requirements for leave in r. 31.10(2).
[14] Defence counsel proposed, in the alternative, that the plaintiffs be required to seek a summary of the CAS file. I agree with the plaintiffs’ counsel that this is a disguised attempt to obtain third party production from CAS. Although a request for a summary gives rise to fewer privacy concerns than a request for production of the entire record, the underlying flaw in the motion remains: the defendants have simply not established that they are unable to obtain the information through discovery of the plaintiffs.
[15] The defendants’ motion for production is accordingly dismissed. The plaintiffs sought $1782 in costs, which defence counsel acknowledged was a reasonable amount. I agree and order the defendants to pay the plaintiffs $1782 in costs on the motion in the next 30 days.
Justice Sally Gomery
Released: March 4, 2020
COURT FILE NO.: 14-62800
DATE: March 4, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
APRIL ROMAIN, CODY ROMAIN, HAILEY MCGOVERN and TIFFANY MCGOVERN, BY THEIR LITIGATION GUARDIAN APRIL ROMAIN, AND JOSEPH MCGOVERN
Plaintiffs
– and –
ALLEN REID AND D-SQUARED CONSTRUCTION LTD.
Defendants
JUDGMENT
Justice Sally Gomery
Released: March 4, 2020