COURT FILE NO.: CV-19-1782

DATE: 2020-12-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

REBECCA TRUMBLE

Plaintiff

– and –

JAGINDER SINGH SOOMAL

Defendant

Robert A. Konduros, Counsel for the Plaintiff

Farah Hakim, Counsel for the Defendant

HEARD: December 23, 2020

THE HONOURABLE MR. JUSTICE J.W. SLOAN

Reasons for Decision

[1] This is a motion, essentially about whether the plaintiff or the defendant is obligated to pay for medical reports and records in a personal injury action. There is no issue that the medical records of the plaintiff three years prior to the accident may be relevant and that the defendant is entitled to review them.

[2] There were also issues about a further and better affidavit of documents and whether the plaintiff was entitled to discovery before the documents were produced.

[3] The court ruled orally that the plaintiff’s Affidavit of Documents should include all documents that are relevant to any matter in issue, rather than only documents that the plaintiff was relying on. In this case, Schedule A of the Affidavit of Documents is very sparse when it comes to medical records. It simply states that there are records of “Doctor Natalie Mills’ Records from February 19, 2019 to July 23, 2020”.

[4] On the evidence before me, the accident took place on February 19, 2019 and the plaintiff has been seen by a neurologist. In addition, I was told that some hospital records and tests were forwarded in the package containing the family doctor’s records. These records included a neurologist’s report to the family Doctor, x-rays, CT scans and lab tests from the Cambridge hospital and a consultation note from an Ottawa hospital.

[5] The plaintiff takes the position that these are the only records she will be relying on at trial. Her affidavit does not reference the family doctor’s records prior to the date of accident, the neurologist records, any therapies and/or tests other than those conducted at the Cambridge Hospital, which are contained in the doctor’s records but not specified in Schedule A.

[6] The defendants are requesting the somewhat “normally requested documentation” from three years prior to the accident to present. These include the records of all doctors, treatment providers & hospitals, the decoded OHIP summary and a copy of the AB file.

Plaintiff’s Position

[7] The plaintiff relies in part on the following cases, Pollard v. Esses [1994] O.J. No. 4163, Bazzi v. Allstate insurance Co. of Canada [1994] O.J. No. 1310, Saunders v. John Doe, [2016] O.J. No. 1556,

[8] In the Pollard case the court stated at paragraph 3:

Rule 30 requires a plaintiff to “disclose” documents in his power, which would include the ones in question. The plaintiff is not required to produce copies of documents which are not in his possession although he/she must permit inspection. There is little law on the issue at hand although I agree with Kurisko L.J.S.C.’s comment in Schultz v. Galvin (1988), 65 O.R. (2^nd) at p.15 that the defendant (party requesting the document) should pay for it. Common sense dictates that the party initiating the request for production or inspection should bear attendant costs unless the document is already in the position of the requested party. The documents requested may have no bearing on the issue at hand, yet the requesting party wishes to satisfy himself/herself in that regard. The cost of the investigation should be with the investigating party. The documents/records requested here are potentially numerous and there is no indication of their relevancy to the issue being litigated it could be very onerous for the plaintiff in this situation to have to pay for the defendant’s privilege of investigation and satisfaction….

[9] The Bazzi case assumed that clinical notes may be relevant to the issues raised but may not be necessary to the plaintiff’s case. The issue was the same as the issue here, that is, who should pay to obtain the medical records.

[10] The court concluded at paragraph 23, “Although Rule 30.04(4) provides for production of all documents at the Examination for Discovery, I conclude this relates to those in the possession of the party”. The court went on to order production at the defendant’s expense.

[11] In the Saunders case decided in 2016, the court quoted from a decision of Master Kelly stating at paragraphs 20 and 21:

20 … refused to articulate a universal rule with respect to what party is responsible to pay for the “up front” costs of acquisition or production of the clinical notes and records of the plaintiffs treating physicians.

Master Kelly went on to state:

As the law now stands, each case must be decided on its own peculiar procedural facts. In this case I see no reason to stray from the more frequently endorsed practice in motor vehicle injury cases that, barring exceptional circumstances, the defendant pays for the acquisition of clinical notes and records of the plaintiffs treating physicians that are requested by the defendant.

21 It is clear from the manner in which the motion before me was argued that the plaintiff does not appreciate the distinction between his documentary discovery obligations and obligations which may arise on the basis of undertakings given, at the request of the defendant, to produce documents. It is the plaintiff’s obligation to secure at his expense, the documents upon which he intends to rely in support of his claim, lists those documents in his affidavit of documents, make those documents available for inspection by the defendant, and, if requested to do so, produce copies of the documents to the defendant (with the copies produced at the defendant’s expense).

Defendant’s Position

[12] The defendant relies on numerous cases including Hollo v. Toronto Transit Commission, 2010 ONSC 1656 and Demirouglu v. Kwarteng ,1999 CarswellOnt 4752,

[13] In the Holo case the court stated at paragraph 20;

20 As to the plaintiff’s third submission – that she does not require the documents to prove her case – it too has no merit. While it may be that some of the documents may not be necessary to prove her case, I have no doubt that the plaintiff requires at a minimum the post injury treatment records. In any event, whether the documents are not necessary to the plaintiff is not the standard regarding production. The plaintiff is required to produce relevant documents – whether or not they are helpful to her case or helpful to the defence.

[14] Like the plaintiff, the defendant also relies on paragraph 21 of the Saunders case.

[15] In the Demirouglu case at paragraph 12, the judge sitting in appeal from a Master quoted from what he concluded was the correct conclusion of the Master as follows:

It may be that there is inherent discretion in the court to order otherwise although I have difficulty accepting the suggestion that there is a class of documents that are relevant enough to justify an order for production but not relevant enough that the producing party need not incur the expense of such production. To my mind all relevant documents in the parties’ possession, control or power must be produced; other documents need not be.

Be that as it may, the documents which I have ordered the plaintiff to produce are only those which are clearly relevant and producible under the rules, there is nothing out of the ordinary about them nor did they fall into any “grey area” if such there be. The plaintiff must comply with the rules and this order at his own expense.

[16] In Demiroglu, the Court of Appeal decision, (2000 CarswellOnt 5837) in which the Ontario Trial Lawyers Association was granted intervenor status, the court stated:

We are all of the view, however that this is not the proper case in which a general pronouncement can reasonably be made on the issue of who pays for the production of documents relating to the plaintiff’s injuries but in the possession of others. Counsel have agreed, for the purposes of this appeal, that the WCB file and clinical notes and records are relevant and that the appeal must proceed on the premise that the documents are in the “possession, control or power” of the plaintiff within the meaning of Rule 30.02 (1) & (2). Leave to appeal was granted on a narrow question of who should pay the disbursement for the production of documents in “the power” of the plaintiff, thus presuming the documents fell into “possession, power or control of the plaintiff” category…

We do not think that a decision of broad & general application on this subject can or should be made without the court being in a position to consider the broader issue of whether or to what extent the documents in question do fall within that category for purposes of considering who should bear the costs production.

[17] The defendant points out that the decision in the Pollard case dealt with the production of undertakings not Rule 30.02 (1) & (2).

[18] It is unfortunate that, in 2020, the case law on the issue of production of somewhat routine medical and work records in personal injury litigation has not been more definitively decided, at least on the case law referred to before me.

Reasons

[19] Based on the evidence before me, it appears that medical records requested would not be onerous to obtain or expensive. This appears to be the type of case that, from the production point of view, is far from voluminous or expensive. While every personal injury case is important to the people involved in it, this one appears to be modest, with damages claimed in the amount of $175,000.

[20] As in all personal injury litigation, a plaintiff’s pre-accident history is automatically called into question. Their lawyers know that before the litigation starts. In fact, it would seem unusual unless a limitation period was approaching, that the plaintiff’s lawyer would not routinely get approximately three years of prior records before definitively accepting the retainer and drafting the Statement of Claim.

[21] On the evidence before me, it is more likely than not that the production being requested will be necessary to ultimately assess the case by the parties and if necessary, by a jury or the court.

[22] In what I will term a “run-of-the-mill” type of personal injury action, I find the documents being requested are routine and reasonable and are producible at the expense of the plaintiff.

[23] Surely, if the plaintiff cannot afford the cost of a few hundred dollars to obtain these producible documents, that disbursement would be part of the upfront cost of doing business for the plaintiff’s lawyer. It is after all, an assessable disbursement at the end of the day if the plaintiff is successful.

[24] The issue of whether or not this matter was taken on a contingency basis was not before the court.

[25] Although it was not before me, I would leave open the right of the plaintiff to question who should pay for expensive productions requested by the defendant, if the issue reaches the point of it being an “access to justice” issue.

[26] Therefore, the plaintiffs shall produce a further and better affidavit of documents and produce the documents requested by the defendant at the plaintiff’s expense.

[27] If the parties are unable to agree on costs, Ms. Hakim shall forward her brief submissions on costs to me by January 5, 2020. Mr. Konduros shall forward his brief response to me by January 8, 2020. Ms. Hakim shall then forward her reply, if any, to me by January 12, 2020. Cost submissions may be sent to my attention by email, care of Kitchener.SCJJA@ontario.ca. Cost submissions, excluding bills of costs, shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.

Justice James W. Sloan

Date: December 24, 2020