Court File and Parties

COURT FILE NO.: C-36-17

DATE: 2020/10/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Pamala Diebold and Cameron William, Plaintiffs

AND:

Economical Mutual Insurance Company, Defendant

BEFORE: Mr. Justice G. E. Taylor

COUNSEL: Gordon Harris, Counsel for the Plaintiffs

Philip Garbutt, Counsel for the Defendant

HEARD: In writing

ENDORSEMENT

[1] This motion is in the context of an action for damages arising out of a motor vehicle accident that occurred on March 28, 2015 in the State of New York in the United States of America. The plaintiff Diebold, who I will refer to as “the plaintiff” was injured in the accident. The plaintiff William is the spouse of the plaintiff. He has no direct interest in this motion. The defendant seeks the production of the following documents:

a) The file of Sun Life Assurance Company of Canada including the amount of the settlement with the plaintiff for long-term disability benefits;

b) The complete statutory accident benefits file of the plaintiff;

c) The employment file of the plaintiff with Elmira Medical Clinic.

[2] In the Statement of Claim, the plaintiff claims damages for past and future loss of income. The Statement of Defence claims a reduction in damages for statutory accident benefits received by the plaintiff. The plaintiff commenced an action against Sun Life Assurance Company of Canada for long term disability benefits pursuant to a group insurance policy, which action was settled.

[3] This is a motion for production of documents prior to trial. Rules 30.02(2) and (3) of the Rules of Civil Procedure provide that every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed and, if requested, produced for inspection. Rule 30.05 states that disclosure or production of a document shall not be taken as an admission of relevance or admissibility.

The Sun Life File

[4] The defendant says that the Sun Life file including the settlement of the plaintiff’s claim is relevant to the plaintiff’s physical state and abilities at the date of the settlement. The defendant also seeks to claim a deduction for the amount of disability benefits received by the plaintiff. The plaintiff takes the position that that the settlement of the action against Sun Life cannot be deducted from the damage award to the plaintiff in this action. The plaintiff also objects to production of the Sun Life file to be used as evidence of the plaintiff’s motivation to return to work.

[5] The plaintiff might ultimately be correct in her position but in my view the issue is more appropriately addressed at trial. In my view the test of relevance has been met. The plaintiff is claiming damages for loss of past and future income. The Sun Life file will contain information about the plaintiff’s disability. The file should be produced.

The Statutory Accident Benefits File

[6] As I appreciate the status of the production of the SAB file, at least portions of it have been produced. The defendant claims that the complete file has not been produced. The plaintiff asserts the contrary. The plaintiff’s claim for accident benefits was handled by an independent adjusting firm. In a letter dated July 8, 2020, counsel for the plaintiff advised, as he had on prior occasions, that the entire SAB file which he had been provided by the independent adjuster had been produced. He invited counsel for the defendant to bring a motion pursuant to Rule 30.10 for production of the independent adjuster’s file if defence counsel was still not satisfied. In my view this is the appropriate way to proceed. The request for production of the SAB file is dismissed.

The Employment File

[7] In my view the content of the plaintiff’s employment file is clearly relevant. It should be obtained and produced. The plaintiff’s concern is that personal and private information such as bank account particulars or details about family members should not be required to be produced. I agree that personal and private information about the plaintiff need not be produced but any information which is redacted is to be accompanied by an explanation of the type of information that was deleted and the reason for such deletion.

Costs

[8] I am inclined to award no costs on this motion. Success has been divided. However, if there are Offers to Settle which could potentially have an impact on the entitlement to costs, the parties may make brief written submission within 10 days of the release of this Endorsement. If no submissions are received, there will be no costs of this motion.

G.E. Taylor, J.

Date: October 7, 2020