Superior Court of Justice - Ontario
COURT FILE NO.: CV-18-138584
DATE: 20201008
RE: Lori Robbins, Plaintiff
AND:
Martar Yekani, Defendant
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: Michael Ianni, Counsel for the Plaintiff
Meredith Harper, Counsel for the Defendant
HEARD: In-Writing – October 8, 2020
ENDORSEMENT
[1] This motion is brought by the defendant, Martar Yekani, for an Order compelling the plaintiff, Lori Robbins, to answer outstanding undertakings given at her Examination for Discovery on June 19, 2019, or, in the alternative, an Order that her claim be dismissed.
Facts
[2] The plaintiff’s claim relates to a motor vehicle accident that occurred on December 28, 2016, in Barrie, Ontario. In her Statement of Claim, issued on December 19, 2018, the plaintiff seeks $1,000,000 damages. She alleges that she has sustained a serious permanent impairment of important physical, mental and/or psychological function. She alleges that, as a result of her injuries, she has and will continue to sustain pain and suffering, loss of enjoyment of life, including her inability to participate in recreational, social and athletic activities, to the extent that she previously participated. Her Statement of Claim also claims a loss of income, earning capacity and competitive advantage.
[3] The defendant conducted an Examination for Discovery of the Plaintiff on June 19, 2019. Among other documents, plaintiff’s counsel undertook to provide the plaintiff’s business records from 2014 to date and redacted records from the plaintiff’s business showing how many clients she had on a monthly basis from 3 years before the accident to date.
[4] The plaintiff owns and operates a Residential Home and Mental Health Facility, which is her main source of income. This facility is inside the home where she lives, and the patients are cared for and stay in the rooms of her family home. She provides personal care for the patients throughout the day.
[5] Between June 2019 and August 2019, the defendant’s lawyer sent five letters to the lawyer for the plaintiff enclosing a list of outstanding undertakings given at the Examination for Discovery and requesting answers to such outstanding undertakings.
[6] Following some discussion, plaintiff’s counsel advised the defendant’s counsel that these business records would be produced within 90 days. That 90-day deadline expired on March 16, 2020.
[7] The records were never produced, and the defendant brought this motion, which was served on the plaintiff’s counsel on August 13, 2020.
[8] In an exchange of emails on August 17 and 18, 2020, counsel for the plaintiff wrote to counsel for the defendant to advise that the plaintiff was unable to produce the business records because of financial hardship and the ongoing COVID-19 pandemic. Counsel also took the position that it would be extremely time consuming to redact the tenants’ names. Counsel advised that the plaintiff had decided to forego her income loss claim, and, therefore, the business records were no longer relevant to the claim, and would not be produced.
Positions of the Parties
[9] The defendant takes the position that the plaintiff’s undertaking to provide business records must be fulfilled for two reasons. The first reason is that an undertaking was given, and, once given, cannot be unilaterally withdrawn, even if the plaintiff purports to forego her income loss claim. Moreover, the plaintiff has not yet amended her Statement of Claim to delete the reference to loss of income, loss of earning capacity and loss of competitive advantage.
[10] The second reason is that even if the plaintiff does forego her income loss claim, she still claims that she has sustained a serious permanent impairment of important physical, mental and/or psychological function (serious permanent impairment). This claim relates to the plaintiff’s claim for health care expenses and non-pecuniary damages. The defendant argues that the business records are relevant to the plaintiff’s ability to continue to perform her job, and her ability to continue to perform her job is relevant to the question of whether the plaintiff did suffer a serious permanent impairment.
[11] In addition, given the nature of her work, the defendant argues that her ability to perform her job is also relevant to her claim for future housekeeping expenses.
[12] The plaintiff does not deny giving the undertaking on the Examination for Discovery, but argues that she should be released from the undertaking because “she would have to get an accountant involved” and fulfilling the undertaking “would be too time consuming and expensive to do”.
[13] The plaintiff also argues that the subject business records are no longer relevant to the action because she has “officially” foregone her income loss claim as of August 17, 2020. She argues that requiring her to comply with her undertaking would interfere with the progress of the action, and be disproportionate to what is at stake.
Analysis
[14] Rule 31.07(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, confirms the obligation of a party who gives an undertaking to honour the undertaking. It provides:
31.07(4) For greater certainty, nothing in these rules relieves a party or other person who undertakes to answer a question from the obligation to honour the undertaking.
[15] Thus, once an undertaking is given, it is irrelevant whether the documents or information requested could have been refused on the ground that they are not relevant to any matter in issue. In Fyffe (Fyffe Logging) v. Ontrac Equipment Services Inc., 2008 48133 (ON SC) the Court stated, at para. 12:
Undertakings are not subject to negotiation. They are a promise that the court enforces. Once they are given, they must be honoured. It makes no difference that the party who gave them considers them burdensome, irrelevant or overly broad after the fact.
[16] See also: Vieira v. Star Navigation Systems Group Ltd., 2010 ONSC 6891, at para. 4:
This rule [31.07(4)] confirms that once a party undertakes to answer a question, it must do so regardless of whether it subsequently takes the position that the question was improper.
[17] See also: Towne v. Miller, 56 O.R. (3d) 177, 2001 28006 (Ont. Sup. Ct.), at paras. 8 and 9; Ahmadi v. Heydari, 2018 ONSC 2682, at para. 50.
[18] In Leo Alaire And Sons v. SNC-Lavalin Power, 2010 ONSC 6078 at paras. 19-21, the undertaking was binding even though the Statement of Defence was amended so that the issue was no longer relevant.
[19] In the case before me there has not even been an amendment to the Statement of Claim.
[20] In any event, I agree with counsel for the defendant that the undertaking remains relevant to the plaintiff’s claim for damages for health care expenses and non-pecuniary damages.
[21] A plaintiff in a motor vehicle accident case can claim health care expenses and non-pecuniary damages only if she can establish on the evidence that, as a result of the collision, she has sustained a serious permanent impairment of an important physical, mental or psychological function. Only if the plaintiff meets this “threshold” does she fall within the exceptions to the statutory immunity provided for in s. 267.5 (3) and (5) of the Insurance Act, R.S.O. 1990, c. I.8 and the applicable regulations and is thereby entitled to either health care expenses or a non-pecuniary damages award.
[22] In Meyer v. Bright (1993), 15 OR (3d) 12 (C.A.), the Ontario Court of Appeal discussed the factors that a court should consider in determining whether a plaintiff has met the “threshold”. One of those factors is the plaintiff’s ability to continue with their employment. The Court stated:
[W]here … permanent impairment of important bodily functions frustrates the chosen career path of an injured person we think the impairment is properly described as being a serious one for that person… [W]e are of the opinion that the frustration of an injured person’s chosen career path generally should be considered to be a serious matter.
[23] As indicated, the plaintiff’s Statement of Claim does claim damages for health care expenses and non-pecuniary damages, and does allege that she has sustained a serious permanent impairment.
[24] A decrease in the plaintiff’s business since the accident could support her allegation that she has sustained a serious permanent impairment. No change or an increase in business would undermine her argument in that regard. The plaintiff is required to produce the documents whether they are helpful to her case or helpful to the defence. Accordingly, the business records requested continue to be relevant to the plaintiff’s claim.
[25] In resisting the fulfillment of her undertakings, the plaintiff also relies on the principle of proportionality in Rule 29.2.03(1) of the Rules of Civil Procedure. Again, this principle is irrelevant once an undertaking has been given. In any event, I note that the plaintiff’s claim continues to be for $1,000,000 in damages. The plaintiff has not provided any evidence as to how assembling the records, or making the relevant request to her accountant, will cause her financial hardship. There is, for example, no estimate from her accountant as to what the costs of this request might be or how long it would take to produce the documents. The plaintiff has failed to provide any evidence that fulfilling her undertaking would be disproportionate.
[26] The defendant takes the position that the plaintiff’s failure to fulfill the undertakings should lead to the immediate dismissal of her action pursuant to Rule 30.08(2)(b). In my view, we are not there yet. I have, at this point, no reason to believe that the plaintiff will not comply with this Court’s Order.
[27] I also note that the defendant has addressed this motion as if there are two separate undertakings. As I read the Discovery transcript, there is a single undertaking, to produce the business records from 2014 to date, but one subset of those records – the records showing the number of clients she had on a monthly basis – may be redacted to remove information identifying her clients. This observation does not alter the substance of the order, but is offered for clarification.
Conclusion
[28] Based on the foregoing, the defendant’s motion to compel the plaintiff to fulfill the outstanding undertakings is granted.
[29] This Court orders:
- The plaintiff, Lori Robbins, shall provide answers to the following outstanding undertakings given at her Examination for Discovery held on June 19, 2019, within thirty (30) days of the date of this Order:
i. To provide the plaintiff’s business records from 2014 to date;
ii. These business records shall include records indicating the number of clients on a monthly basis, but any information that identifies the clients may be redacted.
[30] If the parties cannot agree on costs, the defendant may serve and file costs submissions within 20 days of the release of this decision. Such submissions shall be limited to 3 pages, plus costs outline and any offers to settle. The plaintiff may serve and file responding costs submissions on the same terms within a further 15 days thereafter.
Justice R.E. Charney
Date: October 8, 2020