Pereira v. Ecker, 2020 ONSC 5585

COURT FILE NO.: 12520/19

DATE: 2020-09-17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Tara Pereira, plaintiff, moving party

AND: Robert Ecker, defendant, responding party

BEFORE: Mr Justice Ramsay

COUNSEL: Sarah Naiman for the plaintiff; B. Dehghan for the defendant

HEARD: September 17, 2020

ENDORSEMENT

[1] The plaintiff is suing for two million dollars in damages as the result of a car accident. The defendant struck the plaintiff’s car head on in the plaintiff’s lane of travel on Highway 3 in Dunnville at about seven o’clock in the evening on Thursday, January 18, 2018. The defendant says that he does not remember the collision. He denies liability and says that the plaintiff is exaggerating her damages.

[2] The parties appeared for examination for discovery on October 29, 2020. The defendant was examined first. He refused to answer certain questions, at which point counsel for the plaintiff ended the examination of the defendant and declined to proceed with the examination of the plaintiff until she could get directions from the court. The plaintiff moves for an order compelling answers to questions refused and costs thrown away.

[3] In March of 2020 the plaintiff got the police file pursuant to an order under Rule 30.10. The file contains a statement made by the defendant to the investigating officer. In response to the question, “Had you consumed any illegal or prescribed drugs that day?” the defendant answered, “I had my prescription medications and that is it: Metaprol [sic] ... Lansoprazole for heartburn, Rosuvastatin for cholesterol. Just that Monday I started Methadone, Rasprentan [sic], for sciatica and nerve pain. Also, Oxyctet [sic].

[4] This contrasts with the defendant’s examination for discovery, in which, when asked whether he had taken drugs or medicine in the 12 hours before the accident, he said no. Equally important, it is also the first the plaintiff learned of the defendant’s apparent opiate problem.

[5] The police file also shows that after the accident the defendant went to the Dunnville Hospital and then to St Joseph’s Hospital in Hamilton.

[6] Finally, there is a statement from an eyewitness who saw a vehicle that was likely the defendant’s driving erratically shortly before the accident.

[7] As a result, the plaintiff is now also asking for an order for a further affidavit of documents and to compel the defendant to be examined on his drug use history. She also seeks leave to amend the statement of claim.

Questions refused – surveillance evidence

[8] Items 1 – 5 in the plaintiff’s refusals chart deal with “the gist” of privileged confidential reports from the insurance adjuster to the insurer’s lawyer. The plaintiff is interested in particulars of surveillance evidence. It is agreed that items 4 and 7 in schedule B of the defendant’s affidavit of documents refer to surveillance reports and video. The defendant has undertaken to disclose the surveillance evidence after the plaintiff is examined in chief. The plaintiff takes the position that she is entitled to disclosure before she is examined.

[9] I need go no further than Iannarella v. Corbett, 2015 ONCA 110. That was an appeal from a verdict at trial, but the Court of Appeal spoke authoritatively about pre-trial disclosure. At paragraph 40 the court said:

40 As noted in Ceci, privileged documents must be included in a party's affidavit of documents. Under rule 30.03(2)(b), video surveillance is typically identified in Schedule B to the affidavit of documents as a privileged document. The plaintiff then has the opportunity to seek full particulars of the surveillance from the defence at examination for discovery; the "particulars" of surveillance that must be disclosed on request include the date, time and location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers (for example, see Landolfi, at para. 22).

[10] As far as the Rules are concerned, the point is not whether the party under surveillance has been examined for discovery or not. The point is whether the party who has done the surveillance is being examined. The timing of examinations under the Rules is explained by Master Sugunasiri (as she then was) in Zdenko v. Sutherland, 2019 ONSC 4858. In the case before me, the parties agreed that the defendant would answer questions first. The surveillance particulars should have been disclosed when the defendant was giving his deposition. They should be disclosed now, before the plaintiff is examined.

Questions refused – disclosure of materials given to defence expert

[11] Item 6 asks the defendant whether, if he produces surveillance evidence to a Rule 33 defence medical expert, will you produce that surveillance to the plaintiff at the same time, in terms of “Aherne and Chang” (Aherne v. Chang, 2011 ONSC 2067). Counsel for the defendant answered that he would not make an undertaking on things he has not done and may not do. He was not required to make a hypothetical undertaking, or to frame it in terms of case law that was not before him.

Questions refused – s.258.3 Insurance Act

[12] Item 7 asks the defendant for particulars of the defendant’s averment that the plaintiff has not complied with s.258.3 of the Insurance Act. In part, that section provides:

258.3 (1) An action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall not be commenced unless,

(a) the plaintiff has applied for statutory accident benefits;

(b) the plaintiff served written notice of the intention to commence the action on the defendant within 120 days after the incident or within such longer period as a court in which the action may be commenced may authorize, on motion made before or after the expiry of the 120-day period;

(c) the plaintiff provided the defendant with the information prescribed by the regulations within the time period prescribed by the regulations;

(d) the plaintiff has, at the defendant’s expense, undergone examinations by one or more persons selected by the defendant who are members of Colleges as defined in the Regulated Health Professions Act, 1991, if the defendant requests the examinations within 90 days after receiving the notice under clause (b);

(e) the plaintiff has provided the defendant with a statutory declaration describing the circumstances surrounding the incident and the nature of the claim being made, if the statutory declaration is requested by the defendant; and

(f) the plaintiff has provided the defendant with evidence of the plaintiff’s identity, if evidence of the plaintiff’s identity is requested by the defendant.

[13] The defendant is obliged to disclose the evidence upon which he relies in support of this pleading, but not his legal argument. The requirement in clause (a) of subsection 258.3(1) is within the knowledge of the plaintiff. The defendant is required to disclose whether and when it received the items mentioned in clauses (b), (c) and (d), whether it requested the items mentioned in clauses (e), (f) and (g) and if so, when and what it received in response to its requests. It appears that the defendant has made this disclosure, so I need make no order. If I am wrong, I may be corrected in written submissions when the parties submit submissions as to costs.

Questions refused – defendant’s SAB application

[14] Item 8 asks for the defendant’s application for accident benefits, from which the plaintiff concedes everything may be redacted except the date and the defendant’s summary of the events of the accident. This item is relevant and probative. It should have been disclosed as soon as reasonably possible after it was asked for. A quotation from it is not sufficient.

Amendment of the statement of claim

[15] The plaintiff wishes to amend the statement of claim to make more detailed allegations of impaired driving and to ask for punitive damages. No objection is made to this amendment. It is not prejudicial and does not allege a new cause of action.

[16] The defendant objects to proposed amendments that allege that the defendant breached his duty under s. 245(a) of the Insurance Act to conduct settlement negotiations and under s.258.6 to participate in mediation. It is submitted on his behalf that these matters only have consequences for costs and that the plaintiff is not allowed to plead that the defendant is insured.

[17] I do not think that the plaintiff is pleading that the defendant is insured, any more than the defendant can be taken to do so by his reference to s.258.3 of the Insurance Act (see paragraph 9, supra). These are all matters for the trial judge to decide. The jury will not see these paragraphs of the pleadings. It is actually fairer to include them in the pleadings for clarity that the opposite party is on notice.

Further affidavit of documents and examination for discovery

[18] The plaintiff asks for an order that the plaintiff re-attend for discovery on the issue of his use of opiates and that he be ordered to produce documents related thereto. The defendant submits first that the evidence sought is irrelevant and second that the request is overbroad and disproportionate.

[19] The defendant’s use of opiates is relevant to punitive damages. It is also relevant to liability. For example, in his statement of defence the defendant avers that the plaintiff crossed the centre line of the highway, that she was not keeping a proper lookout, that her vehicle was not fit to be driven and that she is not competent to drive it.

[20] I do not think the plaintiff’s request is overbroad or disproportionate, except that I would limit the production of the family doctor’s records to the year preceding the accident.

Remedy

[21] The defendant submits that if I order further discovery, it should be in writing. I agree that some, but not all of the questions can be answered in that fashion. The refused questions were essentially of the type usually answered by the lawyer. They may be answered in writing. The new matters, however, were never dealt with because the defendant was less than forthcoming about his opiate problem. He should attend to answer questions on this issue. The expense is not disproportionate to the amounts at stake in the litigation. Nor is the plaintiff proposing to embark on a fishing expedition. There is cogent evidence to suggest that the defendant has an opiate problem and that it contributed to the accident. The subject matter of permissible questions is well defined.

[22] I order as follows:

a. The defendant is ordered to answer the following questions in writing within 30 days:

i. What are the dates, time and location of the surveillance to which reference is made in items 4 and 7 of Schedule B of the defendant’s affidavit of documents?

ii. What is the nature and duration of the activities depicted?

iii. What are the names and addresses of the videographers?

b. The defendant is ordered to produce, within 30 days, the defendant’s application for accident benefits, provided that all information on the form may be redacted except for the date of application and the defendant’s account of the accident.

c. The plaintiff has leave to amend the statement of claim as asked.

d. The defendant is ordered, as soon as the documents can reasonably be obtained, to serve and file a new affidavit of documents containing

i. a prescription summary (or summaries, if more than one pharmacy was used) for one year prior to and including the date of the crash;

ii. the Dunnville Hospital chart from the date of loss;

iii. if not contained therein, the Ambulance Call Report from the date of loss;

iv. the St. Joseph’s Hospital chart for January 19, 2018;

v. the St. Joseph’s Addictions Centre chart respecting the post-crash admission;

vi. the Defendant’s family physician’s chart for one year prior to the crash.

e. The defendant is ordered to re-attend for examination for discovery on issues relevant to his use of opiates during the year preceding the accident. Examination is limited to one hour.

f. I declare that the plaintiff did not fail to appear for examination for discovery on October 30, 2019.

[23] The parties may make brief submissions to costs in writing, the plaintiff by September 24 next and the defendant by October 1.

J.A. Ramsay J.

Date: 2020-09-17