Amsinga v. Anderson, 2020 ONSC 6552

Court File and Parties

COURT FILE NO.: 1430/16

DATE: 2020-10-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TAMMY AMSINGA and WILLIAM SCHRAM Plaintiffs (William Schram, Defendant by Counterclaim)

– and –

CHRISTOPHER ANDERSON Defendant (Plaintiff by Counterclaim)

Counsel:

Gregory R. Willson, for the Plaintiffs (B. J. Henderson for the Defendant by Counterclaim)

William G. Woodward, for the Defendant (Plaintiff by Counterclaim)

HEARD: October 26, 2020 at London

Reasons for Judgment

HEENEY J.:

1This motion concerns whether a plaintiff being examined for discovery can refuse to answer questions relating to injuries sustained by his co-plaintiff, on the basis that they are “witness questions” as opposed to questions relevant to any issues between him and the examining party.

Background:

2The plaintiffs are husband and wife. The plaintiff William Schram (“Schram”) was driving a motorcycle, with the plaintiff Tammy Amsinga (“Amsinga”) riding as a passenger, when they were involved in a motor vehicle accident with the defendant.

3Both plaintiffs have sued, claiming to have sustained physical, emotional and psychological injuries. The defendant brought a Counterclaim against Schram for contribution and indemnity with regard to Amsinga’s claim for damages.

4At Schram’s examination for discovery, plaintiffs’ counsel refused to let him answer questions regarding Amsinga’s pre- and post-accident physical, emotional and psychological condition, impairments and limitations, questions pertaining to her employment, and questions pertaining to his observations of his wife on the day of, and at the scene of, the accident. The stated basis for the refusal was that Amsinga’s health and damages are not an issue in dispute as between Schram and the defendant, and are therefore outside the scope of Schram’s examination for discovery. In other words, Schram was being asked questions as a witness, and not as a party, which he cannot be compelled to answer.

5The defendant argues that the questions relate to Schram’s knowledge, information and belief as to matters that are clearly relevant to the issues in the action, and should have been answered. Given that the plaintiffs have been married for five years and live at the same residence, it is reasonable to expect that Schram has relevant information to offer. Counsel for the defendant adjourned the examination for discovery, pursuant to rule 34.14(1), and brought this motion to compel Schram’s reattendance to answer these questions.

6It should be noted that Mr. Henderson, counsel for Schram in his capacity as defendant by counterclaim, takes no position on this motion.

The Pleadings:

7Rule 31.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, governs the scope of an examination for discovery, and provides as follows:

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.

8Since relevance to a matter in issue in the action is the key consideration, and since counsel agree that relevance is defined by the pleadings, it is necessary to briefly review the relevant portions of the pleadings.

9In his Statement of Defence to Counterclaim, Schram essentially mirrored the allegations in the defendant’s Statement of Defence regarding the claims of Amsinga. In particular:

• at paragraph 6, Schram denies that Amsinga sustained the injuries, losses and damages alleged and puts her to the strict proof thereof;
• at paragraph 7, he claims that the injuries losses and damages alleged by Amsinga are excessive and too remote to be compensable at law;
• at paragraph 8, he claims that if Amsinga did sustain any injuries or damages as a result of the accident, those injuries and damages are referable to events, accidents and conditions which occurred before or after the subject accident and are not causally related to same;
• At paragraph 9, he denies that Amsinga has suffered an income loss as alleged and claims that she has failed to return to work when reasonably fit to do so and otherwise failed to mitigate her damages.

The Law and Analysis:

10The plaintiffs rely on what has been described by counsel as the leading case in this area, Steinberg v. Regent Construction Co., 1966 CanLII 165 (ON SC), 1966 CarswellOnt 489, [1966] 2 O.R. 864 (H.C.J.). In that case, Mrs. Steinberg was the owner of the car involved in an accident, while her husband was one of her co-plaintiffs who was injured in the accident. She claimed damages for the cost of repair of the vehicle only. At discovery, she was asked questions about injuries to her husband, and refused to answer.

11Stewart J. referred to a series of authorities standing for the proposition that a party cannot be required to give discovery relating only to matters between the examining party and another party. At para. 2, he said this:

Middleton, J., in Playfair v. Cormack and Steele (1913), 1913 CanLII 366 (AB KB), 4 O.W.N. 817, 9 D.L.R. 445, in dealing with the general principles of discovery said:

It is a cardinal rule that discovery is limited by the pleadings. Discovery must be relevant to the issues as they appear on the record. The party examining has no right to go beyond the case as pleaded and to interrogate for the purpose “of finding out something of which he knows nothing now which might enable him to make a case of which he has no knowledge at present:” Hennessy v. Wright, 24 Q.B.D. 445. Much less is it the function of discovery to extract from the opponent admissions concerning a case which he has not attempted to make by his pleadings.

12He then concluded as follows:

In my opinion, the pleadings between the parties, one of whom is to be examined, are the only ones that can be taken into consideration and since there is no issue between Mrs. Steinberg and the defendants as to the injuries to her husband, it seems to me quite clear that no question should be asked her concerning them.

13It is important to note that Steinberg and the authorities cited therein were decided under the old Rules of Practice, R.R.O. 1980, Reg. 540. Rule 326(1) provided for the general right to examine any party adverse in interest:

326(1) A party to an action, whether plaintiff or defendant, may, without order, be orally examined before the trial touching the matters in question by any party adverse in interest, and may be compelled to attend and testify in the same manner, upon the same terms, and subject to the same rules of examination as a witness except as hereinafter provided.

14This provision was carried forward into the new Rules in rule 31.03(1), which similarly gives a party the right to examine any other party adverse in interest:

31.03(1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8).

15What distinguishes the old Rules of Practice from the current ones is that the Rules of Civil Procedure includes a rule that defines the scope of an examination for discovery, rule 31.06(1), reproduced above at para. 7. There was no comparable rule in the Rules of Practice, so the scope of an examination for discovery was not delineated. Rule 342 provided for objections to a question to be noted and ruled upon by the examiner, but did not prescribe any basis for determining what questions may or may not be asked.

16Steinberg was distinguished in Guttman v Wilson, 1985 CarswellOnt 438 (H.C.J.). In that case, the plaintiff husband was asked questions about the health of his wife, the co-plaintiff. However, he had made a claim for damages under s. 60 of the Family Law Reform Act, R.S.O. 1980 c 152, which entitled him to recover his pecuniary loss resulting from the injuries to his wife. Since the nature and consequences of the injuries to his wife were primary facts upon which the success of his s. 60 claim would depend, the court concluded that her injuries did form part of his claim. Accordingly, he was compelled to answer.

17Following the introduction of the new Rules of Civil Procedure, the issue under consideration on the present motion was examined by MacDonald L.J.S.C. in Duras v. Welland General Hospital et al, 1985 CanLII 2184 (ON SC), 51 O.R. (2d) 284 (H.C.J.). The question before the court was framed in the following terms, at para. 7:

The arguments may be narrowed to one issue: is a party or the document of a party discoverable in respect of a matter that is not in issue between the examining party and the party being examined but is in issue between the examining party and another party adverse in interest?

18He then went through the following analysis, at paras. 8 – 10:

The new Rules of Civil Procedure have broadened the scope of examinations for discovery to make the process more effective and ensure more comprehensive disclosure. While r. 31.03(1) continues the prior right to examine for discovery any other party adverse in interest, under subrr. 31.10(1) and (2) it is now possible, with leave of the Court to examine a non-party “who there is reason to believe has information relevant to a material issue in the action ...”. Thus, even if the hospital were not a party to the action and even if there were no issue between the plaintiff and the hospital, with leave of the Court, the hospital could be examined as to any material issue in the action. Once having become subject to examination, under r. 31.06(1) the person examined would be required to answer “any proper question relating to any matter in issue in the action”. If the person examined were not a party, to be proper the questions would have to be limited to those relating to a material issue in the action.

While R. 30 respecting the discovery of documents has been expanded to a lesser degree than Rule 31, the new provisions of R. 30 are also intended to ensure more comprehensive discovery. Not only must documents in the possession, control or power of a party to the action, other than privileged documents, be disclosed under r. 30.02(1) but also, under r. 30.10, the Court may order production of a non-privileged document in the possession, control or power of a person who is not a party. Such an order may be made “where the court is satisfied that the document is relevant to a material issue in the action and it would be unfair to require the moving party to proceed to trial without the document”.

The intent of the new Rr. 30 and 31 is clear from their extension into new areas of discovery. Because their intent is to make the process more effective and ensure more comprehensive discovery and because they do not specifically limit the right to examine in respect of any matter in issue in the action to one between the examining party and the party being examined, I would answer the question set out above in the affirmative.

19Duras was considered by Nordheimer J. (now Nordheimer J.A.) in Noranda Metal Industries Ltd. v. Employers Liability Assurance Corp., 2000 CanLII 50967 (ON SC), 2000 CarswellOnt 3693, [2000] O.J. No. 3846, but its conclusions were rejected. That case involved a lawsuit relating to environmental contamination, which was brought against a series of insurers who had insured the subject property over the course of 23 years. A key point involved knowledge of the risk of contamination by the various insurers. The Master had ordered the insurers to answer questions as to their knowledge of the risk up to the point where their particular insurance policy expired, but not thereafter. The plaintiffs asserted that they were entitled to the knowledge of risks that each of the defendants had subsequent to the expiration of their policies because it may form evidence, essentially of custom in the industry, which the plaintiffs could use against other defendants. The decision of the Master came before Nordheimer J. on appeal.

20At paras. 24-5, he said this:

With respect, I do not agree with the conclusion reached by MacDonald L.J.S.C. in Duras. I do not accept that one of the purposes of the discovery process is to obtain from a party qua witness evidence to be used against another party unrelated to the first party’s involvement in the litigation. Rule 31.06(1) of the Rules of Civil Procedure states in part that:

A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relating to any matter in issue in the action...

In my view, it is implicit in rule 31.06(1) that questions that are proper are questions relating to any matter in issue in the action between the party examining and the party being examined. I also believe that rule 31.06(1) should be so interpreted in keeping with the purpose of the rules as I have set it out above from rule 1.04(1). The purpose of discovery is to canvass the issues that are raised between the parties as determined by the contents of their respective pleadings. I do not find it an appropriate use of the discovery process to permit a party, just because they are being examined anyway, to be asked about matters that have nothing to do with the claim advanced against them but which might help the examining party in their claim against another party. If that was open to parties generally, the potential for abuse in multi-party litigation is enormous.

21He went on to note that his conclusion was in accord with the “traditional approach” to this issue, as reflected in Steinberg and other cases, although he recognized that the wording of the rule had changed since those cases were decided.

22Both Duras and Noranda were considered by Master Sproat in Insight Venture Associates III LLC v. Rampart Securities Inc. (Trustee of), 2008 CarswellOnt 8543 (S.C.J.). This case was cited in the “Most Recent Not Followed” caption at the top of Noranda in the defendant’s Book of Authorities but, surprisingly, neither counsel referred to it.

23Although the facts are too complicated to recite here, one of the questions that the court in Insight was called upon to answer was set out at para. 11:

Does a defendant have an obligation to answer questions or produce documents relating to the claims made by the Trustee as against other defendants?

24Master Sproat referred to both of the passages in Duras and Noranda quoted above, and then said the following, at paras. 27 - 8:

There is clearly a conflict between the expansive right of discovery found in Duras and the more restrictive right of discovery found in Noranda.

Of the two approaches, I favour the approach in Duras for the following reasons:

1. It strikes me as inconsistent with the broad rights of discovery to which parties are entitled under the Rules that a party to an action who possesses relevant documents and relevant knowledge, information and belief as to issues between the examining party and another adverse party need not disclose such matters on discovery. The party being examined is most likely to testify at trial on its own behalf. That same party is also a potential witness for other adverse parties. It would be unfair to the examining party to proceed to trial without the documents and knowledge, information and belief of the party qua witness;

2. The approach in Noranda would create a situation where the examining party would then be obliged to put the questions to the other adverse party. The adverse party is required by rule 31.06(2) of the Rules to disclose the names and addresses of persons having knowledge, information and belief as to the matters at issue in the action and presumably, the party qua witness would be disclosed. The cases interpreting this rule require a summary of that knowledge, information and belief. In my view, no useful purpose is served to have the other adverse party approach the party who is already subject to examination to obtain the summary of knowledge, information and belief;

3. The approach in Noranda would create a situation where the examining party might be forced to bring a motion for discovery of a non-party, even though the person against whom the motion is brought is not a “non party”. The examining party would be required to meet a more stringent test than required for discovery of a party — that the person has information relevant to a material issue and that the examining party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, among other things. (see rule 31.10);

4. The fact that rule 31.10 refers to the inability to obtain the information from other persons whom the moving party is entitled to examine supports the more expansive approach to discovery;

5. It is conceivable that the examining party would be obliged to attempt to obtain an order to compel the answer from the party qua witness and failing success, bring a motion for discovery of a non party or production from a non party. The duplication of effort and the costs associated with multiple motions and possibly multiple examinations would not be consistent with the requirement that the rules be liberally construed to secure the just, most expeditious and least expensive determination of the case on its merits as required by rule 1.04;

6. Additionally, it is important to note that the examining party cannot read in to evidence at trial the witness’ evidence. Conceivably, if the party qua witness has given evidence upon which the examining party wishes to rely at trial, the examining party would be required to call the party qua witness. This would be most unusual and potentially prejudicial as the answers given by party qua witness would be binding.

25I agree with Master Sproat’s analysis and conclusions. In my view, the rule reflected in Steinberg is a relic of the past, and is inconsistent with the modern approach to discovery, which favours full disclosure and discourages trial by ambush. Rule 31.06(1) obligates a party to answer “any proper question relevant to any matter in issue in the action”. The questions asked here are clearly relevant to issues that have been raised in the action, even though they relate only to one co-plaintiff and not the other. To accede to the argument of the plaintiffs, it would be necessary to rewrite this rule so that a party only had to answer any proper question relevant to any matter in issue between the examining party and the party being examined.

26Furthermore, Noranda is, in my view, distinguishable. Nordheimer J. ruled that it was inappropriate for a party, “just because they are being examined anyway, to be asked about matters that have nothing to do with the claim advanced against them”. However, the questions asked here clearly do concern the claims advanced against Schram, and the defence to those claims that he has pleaded. He has, in his Statement of Defence to Counterclaim, denied that Amsinga has suffered any injuries at all, has claimed that her claims are excessive and too remote to be compensable, that they were not caused by the accident at all, and that she has not suffered any income loss, and failed to work when able to do so. The defendant is quite entitled to explore the factual foundation for those allegations. He is not precluded from doing so simply because Schram’s position accords with his own. It would be ludicrous to restrict an examination for discovery to issues upon which the examiner and the party being examined disagree.

27Finally, the plaintiffs argue that the defendant’s claim for contribution and indemnity is not a damage claim arising out of a tort, but is instead a statutory claim founded on principles of restitution and unjust enrichment. As such, it is argued that the only issue as between the defendant and Schram on the counterclaim is liability, not damages. Schram has chosen to defend the main action as part of his defence to the counterclaim, so that damages is only an issue as between Schram and Amsinga, and not between Schram and the defendant.

28The flaw in that argument is that, while the claim for contribution and indemnity is not a damage claim, it still has, as its object, the payment of damages, or a portion thereof, by the defendant by counterclaim. In defending that counterclaim, Schram has challenged the damage claim made by Amsinga in his pleadings, and has therefore made the issue of her damages relevant to the claim against him. It cannot, therefore, be said that the questions “have nothing to do with the claim” advanced against Schram. This argument is rejected.

29Accordingly, the motion is allowed. An order shall go as asked in paras. (a) and (b) of the Notice of Motion.

30I encourage the parties to resolve the issue of costs between themselves. If they are unable to do so, I will accept brief written submissions from the defendant within 15 days, with the plaintiffs’ response within 10 days thereafter, and any reply within 5 days thereafter.