Court File and Parties

COURT FILE NO.: CV-20-49

DATE: 20200901

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2134999 Ontario Limited, Plaintiff

AND:

Turtle Jack’s Muskoka Grill (Port Carling) Ltd., Tortoise Restaurant Group Inc, MTY Food Group Inc., 11554891 Canada Inc., and John Doe / Jane Doe 1-23, Defendants

BEFORE: Justice V. Christie

COUNSEL: Daniel Fiorita, Counsel for the Plaintiff

Adrienne Boudreau, Counsel for the Defendants, Turtle Jack’s Muskoka Grill (Port Carling) Ltd. And Tortoise Restaurant Group Inc.

Nadia Chiesa, Counsel for the Defendant, 11554891 Canada Inc.

Michael Lax, Counsel for the Defendant, MTY Food Group Inc.

HEARD: In Writing

ENDORSEMENT

[1] On February 24, 2017, the Plaintiff, 2134999 Ontario Limited, entered into a commercial lease agreement with Turtle Jack’s Muskoka Grill (Port Carling) Ltd (“Turtle Jack’s Port Carling”), one of the named Defendants. The Plaintiff, as the landlord in this agreement, granted the Defendant, Turtle Jack’s Port Carling, the tenant, a lease of premises located at 2A West Street, Port Carling, Ontario. The term of the lease commenced on May 1, 2017 and ends on October 15, 2021. If the tenant continued to occupy the property after the term of the lease, the tenant would be deemed to be leasing the property on a week-to-week basis. The tenant was permitted to house up to 24 of its seasonal employees at the property.

[2] On July 12, 2018, there was a fire at the property. The Plaintiff pleads that the fire started as a result of the Defendants’, John Doe / Jane Doe 1-23, negligent and careless operation of a barbeque at the property.

[3] On April 1, 2020, the Plaintiff commenced this action against the named Defendants. The action has not yet moved to discovery. Pleadings have not closed. No defendant has delivered a Statement of Defence in response to the claim. The Defendants have not had an opportunity to bring any preliminary motions. There is no discovery plan. No party has delivered an affidavit of documents. One of the corporate defendants named in this motion, Tortoise Restaurant Group Inc. (“TRG”) has raised questions of the Plaintiff as to why it has been named in this action.

[4] The Plaintiff has brought this motion requesting that the court order the Defendants, Turtle Jack’s Port Carling and/or TRG to:

a. Forthwith provide the Plaintiff with the legal names, last known contact information, and relevant employment and/or housing documents for the staff, employees, agents, and/or contract employees of the Defendants who were assigned to stay at and/or were otherwise residing at the Plaintiff’s property in Port Carling during July 2018; and

b. Forthwith disclose and produce for inspection any policy or policies of insurance which may respond to the Plaintiff’s claims.

[5] Counsel for the Plaintiff has requested the information, now the subject of this motion, on numerous occasions, however it has not been provided. The only relevant response was that on January 16, 2020, Halli Snyder, an employee of the Defendants, 11554891 Canada Inc., a division of MTY Franchising Group Inc., Turtle Jack’s Restaurants, located in Burlington, forwarded to counsel for the Plaintiff a letter from Claims Pro Inc., an SCM Company, dated October 7, 2019, indicating that a Wynward policy of insurance would not respond to the claim.

[6] According to the Plaintiff, the information sought is required for the just, expeditious, and least expensive determination of the action on the merits, including allowing the Plaintiff to amend the Statement of Claim and correctly identify the Defendants, John Doe / Jane Doe 1-23. If provided at this stage of the litigation, it will avoid the necessity for the Defendants to this action to file an Amended Statement of Defence, and avoid unnecessary delays associated with the Defendants, John Doe / Jane Doe 1-23, appointing counsel, investigating and defending the subject action. As for the production of the insurance policy, the Plaintiff argues that production at this early stage will inform the decisions to be made by the Plaintiff going forward in terms of pursuing the action. It will allow the Plaintiff to make a reasonable decision about whether to abandon, settle or pursue the litigation in the most expeditious and least expensive manner.

[7] The Defendants, Turtle Jack’s Port Carling and TRG, have responded to this motion. They take the position that there are no rules or authority to require the provision of information at this stage, the production of documents is premature, and there would be prejudice to the Defendants, especially given that there are ongoing discussions about whether TRG is properly named in the lawsuit.

[8] Given the early stage of this litigation and the fact that TRG may be arguing against their involvement in this litigation, it would not be reasonable to order TRG to provide any information or documentation at this time. Given the uncertainty of their proper place in this litigation, including the fact that the lease is only between the Plaintiff and Turtle Jack’s Port Carling, it would re unreasonable to ask TRG to provide any information at this point. It would be unfair to require a party to produce information and documents, notwithstanding that they have not had an opportunity to formally challenge their status in the litigation. This would set a troubling precedent.

[9] However, it is the view of this court that Turtle Jack’s Port Carling is in a different position in this litigation. Turtle Jack’s Port Carling is clearly a party to this lease agreement. There has been no suggestion by the Respondent to this motion that Turtle Jack’s Port Carling is not a proper party to this litigation, requiring them to produce information, notwithstanding that they have not had an opportunity to challenge their status in the lawsuit. There is no suggestion that Turtle Jack’s Port Carling would not have the information requested, in fact, the only logical conclusion is that they do have the information requested.

[10] With respect to the first requested relief, being legal names, last known contact information, and relevant employment and/or housing documents for the staff, employees, agents, and/or contract employees of the Defendants who were assigned to stay at and/or were otherwise residing at the Plaintiff’s property in Port Carling during July 2018, it is the view of this court that this request is overly broad. The argument of the Plaintiff is that providing this information to them at this stage will allow them to immediately amend their pleadings to name all proper Defendants, ensure that the Defendants will not have to amend their Statement of Defence, and ensure that John Doe / Jane Doe 1-23 will be properly named to enable them to defend this action in a timely fashion along with the other Defendants. There is no question that the legal names and last known contact information of these persons would be relevant to this action. This is not a fishing expedition.

[11] Given the purpose for which the Plaintiff seeks this information at this early stage, it would seem that the only information necessary to be provided to the Plaintiff at this stage would be the legal names and last known contact information of the persons who were assigned to stay at and/or were otherwise residing at the Plaintiff’s property in Port Carling on the day of the fire, July 12, 2018. Providing this information will achieve the purpose set out by the Plaintiff and would be in line with Rule 1.04 of the Rules of Civil Procedure. However, any further information, would simply be a fishing expedition at this stage.

[12] While this court appreciates that the Plaintiff does not point to any specific rule or authority that requires the disclosure of such information at this stage in the proceedings, Rule 1.04 seeks to ensure that the determination of civil proceedings are just, expeditious and conducted in a manner that is least expensive. In Ontario v. Rothmans, 2011 ONSC 2504, [2011] O.J. No. 1896 (Ont. S.C.), the court stated:

[159] The proportionality principle is a manifestation of the policy of frugality that led to the introduction of the simplified procedure to the Rules of Civil Procedure. To use a metaphor, the normal Rules of Civil Procedure are the Cadillac of procedure, an expensive vehicle with all the accessories. However, not all actions or applications require such an expensive vehicle, and a Chevrolet, a serviceable, no frills vehicle, will do just fine for many cases, and it will provide access to justice and judicial economy.

[160] Proportionality is a parsimonious principle. In Javitz v. BMO Nesbityt Burns Inc., 2011 ONSC 1332 at para. 28, Justice Pepall noted that the proportionality principle was introduced because the system of justice was under severe strain because cases were taking too long and costing too much for litigants. In the passage quoted by the Master from Chapter 5 of Lord Woolf's report, Lord Woolf said that his overall aim was to "improve access to justice by reducing the inequities, cost, delay, and complexity of civil litigation." In Abrams v. Abrams, 2010 ONSC 2703 at para. 70, Justice D.M. Brown, stated: "Proportionality signals that the old ways of litigating must give way to new ways which better achieve the general principle of securing the "just, most expeditious and least expensive determination of every proceeding on its merits."

[13] While early disclosure of this type of information will not always be warranted, producing the employees’ identifying information at this stage of the litigation is warranted and justified in this case. The following factors make this so:

a. The identifying information should be within the power, possession and control of Turtle Jack’s Port Carling, and readily available to them;

b. The identifying information can be produced at little to no expense;

c. There is no prejudice to this Defendant in producing the requested information at this stage of the litigation, as they are clearly a proper party to the action;

d. There would not appear to be any privilege which would attach to the requested information;

e. Holding this information back form the Plaintiff in this action will only result in a lengthier, more expensive process for everyone, creating the need for amended pleadings, and the late addition of parties who will need to retain counsel and catch up on the litigation. It is in the best interests of all involved that necessary parties are included as early as possible; and

f. Producing the identifying information at this early stage will not have any negative impact upon the progress of this action.

[14] It is the view of this court that providing the Plaintiff with the identifying information is in line with the comments of the court in Carevest Capital Inc. v. Limmer Corporation Inc., 2010 ONCA 41 (Can LII) at para 23:

[23] The Rules of Civil Procedure may be a somewhat unique regulation, as they are essentially the product of the Civil Rules Committee, however they are a regulation nonetheless. Any consideration of an individual rule must involve a consideration of the object, purpose and structure of the Rules as a whole, as well as, where relevant, the Courts of Justice Act, R.S.O. 1990, c. C.43.

[15] With respect to the insurance policy, counsel has already had some discussions with a representative of one of the corporate Defendants about this issue. The representative has indicated that the Wynard policy of insurance would not respond to the claim. This may be a complete response to the Plaintiff’s inquiry.

[16] While it is true that Rule 30.02(3) provides that a party must produce for inspection policies of insurance where they may indemnify all or part of the judgment, the time for this is not now. This Rule sets out the normal procedure, whereby insurance policies are disclosed in an affidavit of documents as an aspect of documentary discovery.

[17] The fact that disclosure of such a document at this stage could affect settlement discussions does not persuade this court that early disclosure should be made. Early disclosure of lots of documents could assist in settlement discussions. However, parties should be able to conduct the litigation as they see fit, in accordance with Rules and precedent, without the need to show their cards too early. There may be strategic reason to produce documents at a certain time. There is nothing obviously complex about this litigation that would require early production, such as in the case of TD Bank, N.A. v. Lloyds Underwriters, 2016 ONSC 5993. Also, in TD Bank, the pleadings had closed, defining the issues and the scope of relevance. Even in the context of rendering the decision in that case, the court noted at para. 3 that “it is generally inadvisable to entertain motions in relation to discovery of documents motions in advance of the actual delivery of an affidavit of documents...” Also, the order of the court, was in relation to categories of documents, rather than individual documents.

[18] There is no question that full disclosure of relevant documents is fundamental to a civil action. However, there is a time for everything. This court is not convinced that producing any insurance documents at this stage will achieve the principals suggested by the Plaintiff.

[19] In summary, this court orders that the Defendants, Turtle Jack’s Muskoka Grill (Port Carling) Ltd. forthwith provide the Plaintiff, with the legal names and last known contact information for the staff, employees, agents, and/or contract employees of the Defendants, Turtle Jack’s Muskoka Grill (Port Carling) Ltd., who were assigned to stay at and/or otherwise residing at the Plaintiff’s property located at 2A West Street in Port Carling, Ontario P0B 1J0 on July 12, 2018.

[20] If the parties are unable to agree as to costs of this motion, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, and which shall be provided to the court office in hard copy or by email no later than September 8, 2020.

Justice V. Christie

Date: September 1, 2020