Court File and Parties

COURT FILE NO.: 18-187

DATE: 20200916

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Beemer and Lee Chrysler, Plaintiffs

AND:

1350246 Ontario Inc., c.o.b. as Team Powersports, Defendants

BEFORE: Justice V. Christie

COUNSEL: William Leslie, Counsel for the Plaintiffs

Jeffrey Mitchell, Counsel for the Defendants

HEARD: September 16, 2020 via Zoom

ENDORSEMENT

[1] The Plaintiffs in this action were husband and wife at the material time. They seek general and special damages from the Defendant.

[2] It is alleged by the Plaintiff that on or about September 28, 2017, Mr. Beemer took his 2014 Artic Cat Prowler HDX 4-wheel ATV into the Defendant’s business to be serviced. Mr. Beemer claims that the Defendant replaced steering knuckles on both sides in the front and replaced the two front ball joints on the subject vehicle.

[3] The main issue in this legal proceeding relates to an alleged incident that took place on October 16, 2017, when the front left wheel came off of the axle of this ATV driven by the Plaintiff, David Beemer, on a rural road, causing the vehicle to skid across the pavement to the opposite side of the road, rolling several times, coming to rest in a ditch, and caught fire. It is alleged that Mr. Beemer was thrown from the vehicle and was seriously injured.

[4] The Plaintiff claims that the injuries Mr. Beemer suffered were caused solely by the Defendants in that:

a. Its employees were untrained and unsupervised;

b. It failed to possess knowledge and expertise necessary to perform proper repairs;

c. It failed to properly service the subject vehicle and return it to the Plaintiffs in a safe condition;

d. It failed to install or replace the cotter pin into the proper place, or at all, into the left hub assembly of the vehicle;

e. It knew or ought to have known that it had returned the Plaintiff’s ATV in an unsafe condition;

f. It failed to have due regard for the safety of persons, including the Plaintiff, David Beemer, who would be riding the subject vehicle;

g. It failed to properly train its employees in the servicing of the subject vehicle’s steering system, wheel system, including hub assembly system.

[5] The Statement of Claim was issued on February 5, 2018.

[6] The Statement of Defence was prepared on August 13, 2018. The Defendant denies the allegations contained in the Statement of Claim and denies that the Plaintiffs are entitled to any relief at all. In fact, the Defendant denies performing the work described by the Plaintiff and specifically denies the allegations of negligence set out above.

[7] On June 8, 2020, the Plaintiffs were examined for discovery. The parties do not agree as to whether the undertakings have been met.

[8] On June 29, 2020, the Defendant representative, John Cadeau, attended an examination for discovery. By letter dated July 20, 2020, Mr. Leslie, counsel for the Plaintiffs, sent a chart of undertakings and refusals to the lawyer for the Defendant representative, requesting answers to the undertakings and a reconsideration of the refusals.

[9] By letter dated August 7, 2020, Mr. Leslie repeated the request for answers to undertakings and reconsideration of refusals. At the time this motion was served and filed, August 18, 2020, there had been no response. Therefore, this motion, as originally framed, was much broader than the issues now to be decided.

[10] On August 28, 2020, counsel for the Defendant wrote to counsel for the Plaintiffs, pointing out that he did not have the benefit of the transcript from the discovery, which was not included in the Plaintiff’s Record, however, he provided answers to the Defendant’s six undertakings and the one question taken under advisement based on his notes. Counsel for the Defendant also addressed the two refusals, specifically:

a. Refusal #1 – To advise that if the threads were on the axle, the only way for the tire to come off would be if the cotter pin wasn’t in place – The Defendant took the position that the question related to a matter to be determined by the Court and the refusal would be maintained.

b. Refusal #2 – To advise what steps the defendant company took once it knew about the Plaintiff’s accident and the allegations that the accident happened as a result of the faulty work by the shop – Counsel for the Defendant conveyed that the first notice of these allegations came in the form of a letter of January 4, 2018 from The Commonwell Mutual Insurance Group, which Mr. Cadeau forwarded to his insurance broker. Any further steps would be subject to litigation privilege. The letter from Commonwell was enclosed and added to an updated draft Affidavit of Documents.

[11] On September 1, 2020, counsel for the Defendant advised the Plaintiff that their position was that the remaining issue, refusal #1, was to be decided by the Court with the assistance of expert opinion. The Defendant advised that they had not yet retained an expert and that no one on the Defendant’s behalf had examined the subject vehicle post-accident. The Defendant agreed to comply with their obligations under the Rules and case law if they obtained an expert opinion.

[12] Therefore, all matters have been resolved except for one refusal which is the subject of this motion. The Refusal at issue is in relation to the following specific question:

To advise that if the threads were on the axle, the only way for the tire to come off would be if the cotter pin wasn’t in place

[13] On this motion, the Plaintiffs have provided a note from Trevor Hoyle at Hoyles Speed Shop that states:

I have looked at Dave’s side x side and I believe the cotter pin that holds the axle nut in place was not installed, as the threads on the axle are not damaged. If the nut falls off the hub assembly can come off causing the tire to fall off.

This note is not attached to an affidavit in the material before me, however, counsel for the Plaintiff assures me this is part of a sworn document. Further, there is no resumé for Mr. Hoyle to provide his background or any support for his opinion.

[14] The Plaintiff relies on Rules 31 and 34.15 of the Rules of Civil Procedure. Rule 31.06 provides that

31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

It is also of note that pursuant to Rule 31.06(3) a party may obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined.

[15] The Plaintiff relies on the case of Simmons v. Thunder Bay (City), 2017 ONSC 5893. In that case, the Plaintiff brought a motion to compel answers to refusals on a continuation of an examination for discovery of a representative of the Defendant. This was a claim for damages for a trip and fall on a sidewalk owned by the Defendant. The refusal in this case was to the following question:

Are there currently written….policies and procedures for the inspection of street lighting?

The Defendant had refused to answer on the basis that the inquiry was not related to the date in question and that any policies or procedures with respect to street lighting inspections after the alleged incident were not relevant to the issues in the action.

[16] The Defendant was ordered to answer the refusal. The court stated:

[13] The issue of the relevance of questions pertaining to remedial measures taken by a defendant after the event giving rise to the action was discussed by the Divisional Court in Algoma Central Railway v. Herb Fraser and Associates Ltd. (1989), 1988 4740 (ON SC), 66 O.R. (2d) 330 (Div. Ct.). That case concerned an action for damages resulting from a fire on a ship. The plaintiff sought on discovery to ask questions about the safety practices adopted by the defendant after the fire. The defendant objected to answering the questions.

[14] The Divisional Court reviewed the conflicting lines of authority respecting the issue. Older cases had refused to allow such questions to be asked both at trial and on discovery on the grounds that (a) the probative value in proving negligence was only slight because a defendant might make repairs after an accident out of an abundance of caution and (b) the policy goal of encouraging people to take precautionary measures after an accident, without having to fear that evidence of such actions would be used against them, outweighed the probative value of the evidence.

[15]The Divisional Court held at pp. 334-335:

We are of the view that the rationale for the rule must be looked at anew. It is axiomatic that evidence which is relevant is admissible unless some policy reason exists for its exclusion. Here it has always been admitted that evidence of remedial measures has at least some probative value. However, the evidence is excluded on policy grounds in order that people are discouraged from taking precautionary measures which may be later used against them. This is a fallacious argument. It cannot be said that, rather than furnishing some evidence which may or may not be prejudicial to one's defence of an action, one will instead take no remedial measures thus risking further actions being brought by later injured plaintiffs.

[16] The Divisional Court concluded that such questions are proper at the examination for discovery stage of proceedings. "Matters of admissibility and the weight to be given to such evidence at trial should be left to the trial judge to determine." See p. 335.

The Court went on to consider other cases in which it was held that evidence of remedial action was admissible at trial.

[17] With all due respect to the Plaintiff, the question at issue in this refusal has nothing to do with remedial measures being taken after the fact. The question being asked here is one of stated opinion to which the Defendant representative must agree or disagree.

[18] The Rules of Civil Procedure are designed to provide the parties with full disclosure of information in order to avoid surprise. According to Carthy J.A. in Ceci v. Bonk, 1992 7596 (ON CA), [1992] O.J. No. 380 (C.A.) at para 10:

[10] …the discovery rules must be read in a manner to discourage tactics and encourage full and timely disclosure. Tactical manoeuvres lead to confrontation. Disclosure leads sensible people to assess their position in the litigation and accommodate.

This does not mean, however, that just any question at a discovery will be appropriate.

[19] In Reis v. CIBC Mortgages Inc., 2011 ONSC 2309, the motion pertained to the adequacy of a supplementary affidavit of documents and answers to follow up questions asked following answers provided to ordered questions. The Court held that hypothetical questions are inappropriate and stated as follows:

[37] The follow up questions to the answers to questions 27 and 41 are hypothetical. Question 27 originally asked "when" the defendant first became aware that the plaintiff was suffering from situational stress disorder and the answer given as ordered by Master Haberman was that the defendant was and is not aware the plaintiff suffers from that disorder. By way of follow up the plaintiff asks if their acts and omissions would have been different "if they knew". Question 41 originally asked whether the plaintiff advised the defendant that she wished a transfer to get away from Ms. Luu. The answer given as ordered by Master Haberman was that the plaintiff did not indicate that Ms. Luu or their relationship was the reason for requesting a transfer. By way of follow up question the plaintiff asked whether the defendant's acts and omissions would have been different "if they knew" that the plaintiff sought the transfer to get away from Ms. Luu's harassment. Both follow up questions were hypothetical questions, without any foundation in the defendant's evidence, and need not be answered. A party, other than an expert, need not answer hypothetical questions: Motaharian v. Reid, [1989] O.J. No. 1947 (H.C.J.). The plaintiff could have asked if the defendant had policies on how to respond to an employee alleging situational stress disorder or asking for a transfer because of her manager's treatment of her, but these questions were not asked. The questions ordered by Master Haberman were properly answered and the follow up questions were improper.

[20] In Bot Construction v. Dumoulin, 2010 ONSC 6569, the action arose out of a highway construction project. The Plaintiff brought an action for fraud, breach of fiduciary duty and breach of trust. Bot alleged that the Defendants were involved in fraudulent schemes against Bot in connection with the project; specifically, Bot alleged that the Defendant who was the project manager for Bot, arranged for certain gravel pit owners to contract with Towanda Timber for the supply of gravel for the project, rather than contracting directly with Bot. One of the questions at the discovery was whether Ms. Dumoulin understood that if Bot had cause to terminate its relationship with Mr. Dumoulin, it would be entitled to do so. Ms. Dumoulin answered that this was a question of law that she as a lay person could not answer. The Court held:

Ms. Dumoulin does not need to answer this question. Questions as to a party's position on a legal issue may be proper (See Six Nations of the Grand River Indian Band v. Canada (Attorney General), 2000 26988 (ON SCDC), [2000] O.J. No. 1431 (Div. Ct.).) It is proper to ask Ms. Dumoulin what her legal position is as to the nature of the relationship, if any, between Bot and Mr. Dumoulin. Ms. Dumoulin has answered that question. Her position is that Mr. Dumoulin worked for Lad Consulting and that Lad contracted with Bot. Bot knows the case it will have to meet at trial on this issue. The question in issue goes beyond clarifying what legal position Ms. Dumoulin is taking. The question requires Ms. Dumoulin, as a lay person, to give a legal opinion on a hypothetical matter of law. That question is not relevant. It is argumentative and is directed at eliciting a concession from Ms. Dumoulin based on Bot's theory of the facts with which she has expressly disagreed, rather than narrowing the issues.

[21] In the case at bar, John Cadeau testified as a share holder, dealer principal of the Defendant numbered company. He is a high school graduate. He holds no trades in mechanics. He was not sought to be qualified as an expert in the field of mechanics, and based on the information provided would never have qualified. Mr. Cadeau did not conduct any post inspection of the subject vehicle.

[22] The question asked of Mr. Cadeau sought an opinion in the field of mechanics, based on hypothetical facts. Beyond being hypothetical, the question is a matter of argument, upon which reasonable experts may disagree.

[23] Having carefully considered the matter, this court finds that the question was properly refused and this refusal may be properly maintained.

[24] 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 21, 2020.

Justice V. Christie

Date: September 16, 2020