Court File and Parties

COURT FILE NO.: CV-20-812-0000

DATE: 2020/08/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CAROL ANNE HOEKSTRA and AMANDA CHRISTINE HERSEY, Plaintiffs

AND:

MARK JAMES SEARS and CITY WIDE TOWING INC., Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Rose Leto, for the Plaintiffs Elizabeth Belanszky, for the Defendants

HEARD: In writing

ENDORSEMENT

[1] Before me is a motion brought by the plaintiffs, in writing, seeking an order compelling disclosure from non-parties pursuant to Rule 30.10 of the Rules of Civil Procedure. In particular:

a. The plaintiffs have brought what is now commonly described in the vernacular as “a Wagg motion” - referring to the decision of our Court of Appeal in D.P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.) – seeking production of records from the London Police Service (“the LPS”) and from the “Ministry of the Attorney General – Crown Law Office (Civil)”, (hereinafter referred to as “the Crown”), concerning the underlying accident giving rise to this proceeding.

b. In relation to the LPS, the plaintiffs seek, (in their notice of motion at any rate),an order compelling the LPS to produce a “full, unredacted copy of all documents” in the possession or control of the LPS relating to the relevant accident, including eight specifically described categories of documentation, many of which emphasize again that the relevant documents are to be produced in an “unredacted” form.

c. In relation to the Crown, the plaintiffs seek, (in their notice of motion at any rate), an order compelling the Crown to produce “a copy of the complete, unredacted Crown Brief file(s) in relation to the Criminal Code and/or Highway Traffic Act charges” brought in relation to the underlying accident.

[2] I have referred to the relief formally sought by the plaintiffs in their notice of motion because the draft Order submitted with the plaintiffs’ motion material appears to request relief that it is markedly different in scope and substance.

[3] In particular, although the notice of motion specifically identifies both the LPS and the Crown as intended non-party respondents to the motion, the supporting affidavit sworn by plaintiff counsel similarly makes reference to why such relief formally has been requested from both those non-parties, and the affidavits of service filed by plaintiff counsel confirm the plaintiffs’ motion material was served on both non-parties in addition to the defendants:

a. the preamble of the draft order refers only to a motion for production in relation to “a non-party” (singular) and “the non-party” (singular) LPS; and

b. the substantive provisions of the draft order grant relief significantly different from that formally sought in the notice of motion, insofar as:

i. the production obligations to be imposed are only vis-a-vis the LPS; and

ii. the production obligations to be imposed vis-a-vis the LPS are not unqualified, but are instead subject to numerous specified restrictions and limitations, including permissible redactions which run counter to the notice of motion’s request that the LPS be required to produce “full, unredacted” copies of the documents in its possession.

[4] The draft order also makes reference to the motion being “unopposed” by the LPS, but there is nothing in the other material filed in support of the motion, (e.g., the supporting affidavit of the plaintiffs’ lawyer), to indicate or confirm whether and how the LPS may have confirmed its non-opposition to the relief formally requested vis-à-vis the LPS in the notice of motion, or the relief being informally requested vis-a-vis the LPS in the draft order filed with the motion.

[5] Given my familiarity with similar “Wagg motions” brought here in London vis-à-vis the LPS, in relation to civil litigation stemming from underlying motor vehicle accidents, I suspect:

a. that the LPS, after its initial disclosure of redacted information, followed by service of the plaintiffs formal notice of motion, responded with its usual indication that it would not oppose the granting of certain relief vis-à-vis the LPS pursuant to Rule 30.10 provided that such relief was subject to the restrictions and limitations reflected in the draft Order, including a provision that no costs would be awarded against the LPS; and

b. that the plaintiffs decided they were content to proceed vis-à-vis the LPS on that basis.

[6] Again, however, there is nothing whatsoever in the material before me to confirm that is the case, or non-opposition of the LPS to the relief set forth in the draft Order submitted with the plaintiffs’ motion material.

[7] Moreover, the motion material is completely silent when it comes to indications of whether the Crown responded in any way to the plaintiffs’ requests and/or motion, or what the plaintiffs’ further intentions and requests in that regard might be, although the draft Order informally and indirectly suggests the plaintiffs may no longer be pursuing the relief formally sought vis-à-vis the Crown in their notice of motion.

[8] In my view, all of this is problematic. In particular:

a. The plaintiffs have brought their motion in writing. There is no specification of the particular sub-rule relied upon by the plaintiffs in that regard, but it presumably is Rule 37.12.1, which permits such a motion to be brought in writing only where it is “on consent, unopposed or without notice under subrule 37.07(2)”.

b. The material filed by the plaintiffs nevertheless includes no proper evidence indicating and confirming that any respondent to the motion, (the defendants, the LPS or the Crown), has indicated consent to the relief being requested, or non-opposition to the relief being requested. Nor is there any evidence suggesting that Rule 37.07(2) has any application in the circumstances.

c. Evidence confirming consent or non-opposition to requested relief is essential to reliance on Rule 37.12.1, to bring a motion in writing, and particularly important when there are indirect but unconfirmed indications, via the submitted draft Order:

i. that a respondent non-party has expressed non-opposition to the motion subject to the granting of specified lesser but included relief to that formally being sought; and/or

ii. that relief formally sought in a notice of motion against a non-party is no longer being pursued, and therefore effectively being abandoned, giving rise to cost implications pursuant to Rule 37.09 unless the court orders otherwise – which it usually will do if there is confirmation that the respondent party is content for certain relief requested in a served notice of motion to be withdrawn on consent without costs being awarded.

d. Moreover, even though the requested relief would not subject the defendants to production obligations, they are parties affected by the relief being requested, and confirmation of their consent or non-opposition the relief being requested is also required. In that regard, I note that defendants served with such Rule 30.10 motions frequently make provision of their confirmed consent or non-opposition conditional on the relief granted including an obligation that any and all material produced to the plaintiffs by non-parties be copied to the defendants, at the defendants’ expense. Of course, that is not a required term of such orders. However, it highlights the importance of defendant consent or non-opposition also being properly confirmed if a motion is to proceed in writing pursuant to Rule 37.12.1. of the Rules of Civil Procedure.

[9] In the circumstances, I have not signed the draft Order, but without prejudice to the plaintiffs filing supplementary motion material that:

a. provides satisfactory confirmation that the defendants have indicated that they consent to, or do not oppose, granting of the relief set forth in the draft Order submitted with the plaintiffs’ motion material, including indication of any terms or conditions accompanying the consent or non-opposition provided by the defendants;

b. provides satisfactory confirmation that the LPS has indicated that it consents to, or does not oppose, granting of the relief set forth in the draft Order submitted with the plaintiffs’ motion material; and

c. provides satisfactory confirmation that the Crown has indicated that it consents to, or does not oppose, granting of the relief set forth in the draft Order and only that relief in response to the plaintiffs’ motion, including confirmation that the Crown has indicated its consent or non-opposition to the plaintiffs abandoning/withdrawing their formal request for relief vis-à-vis the Crown on a “without costs” basis.

[10] Of course, all of that reflects a number of inferences, drawn from the draft Order submitted by the plaintiffs, as to what the defendant, the LPS and the Crown have indicated or will indicate.

[11] Those inferences may or may not be correct.

[12] If the defendants, the LPS and/or the Crown have not indicated or will not be indicating their consent or non-opposition to relief being requested, in a manner sufficient to satisfy the requirements of Rule 37.12.1 of the Rules of Civil Procedure, (e.g., if the nature of relief being requested or cost issues are being opposed), the plaintiffs motion may not be able to proceed in writing.

[13] In any event, if the final order actually requested is the subject of confirmed consent and/or non-opposition from all respondents to the motion, the draft Order submitted by the plaintiffs should be revised to address, accurately and fully in its preamble and substantive provisions, all relief formally requested in the notice of motion.

[14] Finally, I note that I am not seized of this matter. The plaintiffs’ motion can be addressed by any judge available to deal with the matter in writing or otherwise once the plaintiffs have filed their supplementary motion material.

[15] However, if and when this motion is placed before another judge, with original and supplementary material, a copy of this Endorsement should be included.

[16] In the meantime, plaintiff counsel is directed to provide a copy of this endorsement to all respondents served with the plaintiffs’ original motion material.

Justice I.F. Leach

Date: August 17, 2020