Court File and Parties

COURT FILE NO.: CV-17-580318 MOTION HEARD: 20191122 REASONS RELEASED: 20200210

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

JEYASINGHAM GABRIALPILLAI Plaintiff

• and-

CO-OPERATORS GENERAL INSURANCE COMPANY Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: Y.Song and A. Varno Email: ysong@swlawyers.ca -for the Plaintiff, Jeyasingham Gabrialpillai

R. Dowhan and M.McMahon Email: rdowhan@svlaw.ca -for the Defendant Co-Operators General Insurance Company

REASONS RELEASED: February 10, 2020

Reasons For Endorsement

I. Background

[1] The Plaintiff Jeyasingham Gabrialpillai brings a motion to compel the Defendant Co-Operators General Insurance Company (“CGIC”) to answer refusals arising from examinations for discovery. The Plaintiff also seeks leave to examine a second representative of CGIC. This action arises from CGIC’s denial of the Plaintiff’s water loss claim on the basis that it was staged.

[2] When this motion first came before me, there were 53 outstanding undertakings and 101 refusals. As a result of significant case management and court directions over 4 telephone case conferences and 2 court attendances together with the parties’ efforts, all undertakings have been satisfied and approximately 25 refusals remain in dispute.

[3] On September 9, 2016, a flood due to a water leak from a toilet caused significant damage to the Plaintiff’s house in Scarborough, Ontario (the “Property”). At the time, the Plaintiff’s son, Gopi Jeyasingham (“Gopi”) resided at the Property with his wife and child. Gopi reported the loss to CGIC the following day.

[4] Pursuant to the Order of Master Graham dated May 16, 2018, CGIC later disclosed that on September 12, 2016, Andy Dykstra, National Director of CGIC’s Special Investigations Unit (“SIU”), received an anonymous phone call from an individual identifying himself as a member of the Sri Lankan community. The caller alleged that the Plaintiff’s claim was fraudulent, the damages were exaggerated in conspiracy with a restoration vendor and there were other false claims from his community with more planned.

[5] On February 15, 2017, the Plaintiff filed a claim of $179,555.15 under his CGIC home insurance policy (the “Policy”) for repairs, replacements, personal belongings and living expenses (the “Plaintiff’s Claim”). CGIC conducted an investigation of the Plaintiff’s Claim lasting over 10 months. By letter dated July 20, 2017, CGIC advised the Plaintiff that the Plaintiff’s Claim had been denied on the basis that it was staged.

[6] In his Statement of Claim issued August 4, 2017, the Plaintiff claims damages of $175,555.15 for breach of contract, fiduciary duty and the duty of good faith and $1,000,000 in punitive damages. CGIC alleges in its Statement of Defence dated September 14, 2017 (“Defence”) that the water loss was an intentional act which is excluded under the Policy. Among other things, CGIC pleads:

i.) before Gopi reported the loss to CGIC, he had already retained Velan Construction Group (“Velan”) which, together with a plumber it hired, completed the clean-up and tear out without CGIC’s authorization before CGIC’s adjuster attended at the Property;

ii.) the clean-up and tear out was completed in an improper and reckless manner;

iii.) there were numerous inconsistencies in the information and materials provided by the Plaintiff and Gopi to CGIC;

iv.) employees of Velan were known to, or friends of Gopi;

v.) inspection and testing of the toilet revealed that it had been broken intentionally, had no other defects and could not have discharged a sufficient volume of water to cause the alleged damage;

vi.) there was the potential for the Plaintiff to realize significant financial gain in staging the water loss as he stood to receive a newly renovated Property worth significantly more than its purchase value plus a significant payment for clothes and materials;

vii.) the Plaintiff filed fraudulent, falsified claims for alternate living expenses including rent, food and pet care.

[7] The parties first appeared before me on May 8, 2019. Given that insufficient efforts had been made to resolve or narrow the 154 questions in dispute, I provided case management and directions and adjourned the motion to allow for additional efforts by the parties. Telephone case conferences were held on June 7, July 17 and September 4, 2019. The parties attended in court on September 10, 2019, however, the motion was adjourned again as existing and new materials were not brought forward and Plaintiff’s counsel failed to confirm the motion. More case management and directions were provided and another telephone case conference was held on November 7, 2019. As the number of disputed questions, case conferences and court attendances would suggest, this motion has been vigorously opposed and although the parties have cooperated over time to make some meaningful progress, significant efforts by the court were required.

II. The Law and Analysis

Refusals

[8] The refusals arise from the examination for discovery of Matthew Petch held on November 13 and 14, 2018. Mr. Petch is CGIC’s adjuster assigned to the Plaintiff’s Claim.

[9] Rule 31.06 states:

(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….

[10] Rule 29.2.03 sets out the proportionality factors which apply to both oral and documentary discovery:

(1)In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[11] Relevance, the scope of discovery and proportionality were summarized by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Questions on discovery must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and “fishing expeditions” are not permitted (Rothmans at paras. 129 and 154-157).

[12] Rule 1.04(1) compels the court to construe the Rules liberally to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04(1.1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[13] Group 2 (Refusal 95) – The Plaintiff requests a copy of the template letter which CGIC sends to its policyholders when denying water loss claims. The Plaintiff submits that the template letter is probative of CGIC’s general approach to water losses in comparison to its denial letter and conduct in the present case. CGIC argues that the template is not relevant as it is intended for use where, unlike here, CGIC did not provide emergency services. CGIC advises that the template letter simply provides a place to input the reasons for denial and highlights what steps the policyholder should take to promptly and effectively remediate the damage. CGIC explains that the denial letter sent to the Plaintiff was written “from scratch” given the unique circumstances.

[14] In my view, the template letter is relevant and should be produced. CGIC’s usual, standard or typical approach in denying water loss claims is probative of the Plaintiff’s allegations that CGIC breached its duty of good faith by the manner in which it investigated and denied the Plaintiff’s Claim. Further, since CGIC has already provided significant information and explanation regarding the template letter, production of the document itself will provide further clarity, specifics and/or additional information. CGIC shall produce the template letter within 30 days.

[15] Group 5 (Refusals 30-31, 43-56, 58, 64, 66-67, 70-71) – These 22 refusals all arise from CGIC’s confirmation that it denied water loss claims on the basis that they were staged (the “Other Claims”) from 5 other policyholders who, like the Plaintiff, are members of the Tamil community (the “Other Claimants”). Questions related to the Plaintiff’s ethnic background were initially posed during CGIC’s investigation. Mr. Petch confirmed on discovery that he discussed the Other Claims with other CGIC team members when investigating the Plaintiff’s Claim and that the Plaintiff’s Claim was investigated as part of a conspiracy with the Other Claims:

“823. Q. MS. JOANISSE: Did you discuss the other claims that you said you’re also involved in involving a Tamil insured and an allegation of staged water loss, did you discuss that with your team members in the context of the investigation for this claim?

A. Did I discuss any relation between another file and this one?

MS. JOANISSE: Yes.

A. With my team members at any point?

MS. JOANISSE: Yes.

A. Yes, I believe I did.

824. MS. JOANISSE: Okay, what were those discussions?

A. The discussions were surrounding whether or not there is any linkage, whether or not we have any concerns with respect to a conspiracy to create broad instances of water fraud, and that’s mainly due to, yes, Velan Construction and some of the involved parties’ names seeming to arise.

825. Q. So you mentioned that you were discussing the potential for a conspiracy because Velan was involved in the other claim?

A. That would have been one of the names that kept popping up, yes.

826. Q. Kept popping up, meaning in your other claim that you’re involved in?

A. No, in general discussion, Velan – I’m sorry, please restate the question?...

827. Q. …You mentioned that you were discussing the other claim that you were involved in investigating in the context of investigating this claim, correct?

MR. DOWHAN: I don’t think so.

A. No.

MS. JOANISSE: Yes, he did. You did say that.

A. I don’t think that’s what I was saying.

828. Q. MS. JOANISSE: You were – you were – you said you were discussing the potential for a conspiracy, correct? You’ve just said that word? We can read the transcript back.

A. Sure, yes, we were discussing the potential linkage between one claim and another, yes. We were.

829. Q. Right, between the other claim involving a Tamil insured that Co-Operators had that you were investigating –

A. I never said that.

830. Q. That was my question and you said yes.

A. Okay.

831. Q. Okay? Did anybody else on the investigation team, Mr. Dykstra, Mr. Taillefer, Ms. Lepelaars, discuss with you any of the other five claims in the context of investigating this claim?

A. Yes, yes, they did.

832. Q. What did they say about them?

A. You’d have to be specific. With respect to…..

833. Q. Did they say that Velan was involved in all of them?

A. No, they did not.

834. Q. Okay, what did they say about them? Did they say that they were similar?

A. The name Velan Construction came up in a discussion with Mr. Shaw at Wawanesa when Darryl and myself met with him….”

[16] CGIC has provided the names of the Other Claimants and advised that, similar to the Plaintiff’s Claim, the Other Claims allegedly resulted from water escaping from a toilet located on an upper floor and restoration contractors were engaged prior to CGIC receiving notification or providing authorization. CGIC has further confirmed that, while it investigated any potential conspiracy or connection between the Plaintiff’s Claim and the Other Claims, it could not find a link. Therefore, CGIC is not alleging or taking the position in this litigation that the Plaintiff engaged in any conspiracy or collusion and submits that the Plaintiff’s Claim was evaluated and denied entirely on its own merits. CGIC acknowledges that in these proceedings it cannot rely on the facts or results related to its investigations of the Other Claims.

[17] Given CGIC’s confirmation that the Other Claims are all water loss claims and identification of similar characteristics, Refusal 30 has been answered.

[18] In Refusal 31, the Plaintiff seeks the entire investigation files for the Other Claims and full particulars of the Other Claims including information about the parties, when, where and what the claims were and how the water losses were staged and any alleged similarities with the Plaintiff’s Claim, or, at a minimum, the detailed results of the investigations. There is some overlap with Refusals 43 and 44 (when the investigations of the Other Claims were commenced) and Refusals 45 and 46 (the geographical locations of the Other Claims). The Plaintiff also requests whether there have been any judicial findings with respect to the Other Claims (Refusal 49).

[19] The Plaintiff submits that because the Plaintiff’s Claim was investigated as part of a conspiracy, he is entitled to the entire investigative files related to the Other Claims. The Plaintiff asserts that even though CGIC is not alleging that the Plaintiff’s Claim was part of a conspiracy or that there is any connection to the Other Claims, given the common ethnicity and type of claim, the complete files related to the Other Claims are relevant to whether the Plaintiff’s Claim was investigated in bad faith. The Plaintiff also alleges that CGIC’s investigation of 6 claims from the Tamil community raises an inference of racial profiling.

[20] CGIC advises that it has produced all relevant documents with respect to its investigation of the Plaintiff’s Claim. This includes all of the notes on its internal system related to the investigation of the Plaintiff’s Claim on its own and as it relates to CGIC’s inquiries into any conspiracy or connection with the Other Claims.

[21] In my view, while the Other Claims are relevant to CGIC’s investigation of the Plaintiff’s Claim, not all of the documentation sought by the Plaintiff is producible. As is the case with most refusals motions, the Plaintiff has been over-asking and CGIC has been under delivering. The parties must accept that they are still at the discovery stage and that the admissibility of any documents and evidence is an issue for trial. Rule 1.04 (1) and proportionality compel the court and the parties to balance the Plaintiff’s entitlement to relevant, proportionate and reasonable discovery against CGIC’s right to be free from overbroad, irrelevant and disproportionate requests. In this regard, I adopt the comments of Myers J. in 2287913 Ontario Inc. v. ERSP International Enterprises Ltd., [2017] O.J. No. 6269 (S.C.J.) at paragraphs 6-15 regarding refusals motions and the need for a more proportionate, efficient and affordable approach, including the use of Rule 34.12 to defer some production issues to trial. Myers J. stated at paragraphs 13-14:

“13 The culture shift requires a different approach. The primary consideration is not counsel's convenience or the absolute determination of every single possible issue so as to enhance counsel's ability to prepare masterfully for a hearing. Of the 150 objections, how many will really result in evidence that is important for the trial or summary judgment motion hearing? Two? Perhaps three? Experience suggests that there are unlikely to be ten. So, with that in mind, counsel proposes to take two or more days, not just of court time, but of their own time, at their clients' expense, to have a court that is not the trier of fact make the relevancy calls so as to make trial preparation simpler and more complete.

14 Counsel argues that the judge at the hearing will not want to decide refusals and he is loathe to put 150 refusals before the hearing or trial judge. That very concern is part of the reason why Rule 34.12 should be used. If counsel hesitates to put an evidence ruling before a judge, then, probably, the ruling is not very important to the case. In my experience, judges are happy to do their jobs. It is wasting time and cost that is more unsettling. Counsel should be loathe to put 150 refusals before any judicial officer. Proportionality, efficiency, and affordability require counsel to pick the few that matter rather than spending days on the 140+ that do not. Today, less is more. More is not more. More is just expensive. Fear of criticism for leaving a possible avenue of investigation unfollowed must be replaced with the confidence to provide proportional service to clients. The focus must be on the issues that matter, not every possible piece of marginally relevant evidence. That decision-making process is the stuff of professional judgment for which clients are happy to pay. They may object to paying for expensive motions practice that has ground the system to the point where the Supreme Court of Canada has identified access to justice as the greatest challenge to the rule of law in Canada today.”

[22] Mr. Petch’s evidence that CGIC’s investigation of the Plaintiff’s Claim included inquiries into whether there was any conspiracy or connection with the Other Claims expands the scope of relevance beyond CGIC’s investigation of the Plaintiff’s Claim on its own merits. However, the fact that CGIC ultimately concluded that there was no conspiracy or connection with the Other Claims and is not defending this action on that basis limits this expansion.

[23] There are 3 categories of documents related to CGIC’s investigation of the Plaintiff’s Claim: i.) documents related only to its investigation of the Plaintiff’s Claim on its own merits; ii.) documents related to its investigation as to whether there was a conspiracy or connection between the Plaintiff’s Claim and any or all of the Other Claims; and iii.) documents related to its investigations of the Other Claims on their own merits and/or as between and among the Other Claims without any consideration of the Plaintiff’s Claim.

[24] The Plaintiff seeks all documents from all 3 categories. In my view, given CGIC’s representations and confirmations that it is not asserting a defence or taking the position in this action that the Plaintiff’s Claim was part of a conspiracy or has any connection to the Other Claims, only the first 2 categories are relevant and producible. The Plaintiff’s request for all of the investigative files regarding the Other Claims is overbroad and disproportionate given that CGIC is not asserting a conspiracy or connection in defending this action. What is relevant and probative are CGIC’s investigation and inquiries into any conspiracy, connection, relationship or link between the Plaintiff’s Claim and the Other Claims. In my view, in these circumstances, the investigation of the Other Claims on their own are not probative of the matters in dispute in this action. This conclusion may have been different if CGIC was defending this action on the basis that there was a conspiracy or a connection and would have to be revisited if CGIC changes its position or the parties amend their pleadings.

[25] Although CGIC submits that it has produced all relevant documents with respect to the first two categories, it is not clear to me that all relevant documents with respect to the second category have been produced. CGIC advises that it has produced all notes from its internal system related to its investigation into whether there was any conspiracy or connection between the Plaintiff’s Claim and the Other Claims. However, it is unclear whether this includes all correspondence, including e-mails and other documents. Therefore, with respect to Refusal 31, CGIC shall make all necessary inquiries to determine if there are any other documents, including e-mails and correspondence, with respect to its investigations and inquiries into whether there was a conspiracy or connection between the Plaintiff’s Claim and any or all of the Other Claims, and to the extent not already produced, produce any documentation within 30 days.

[26] With respect to Refusal 49, as canvassed with counsel during the motion, CGIC has already provided the names of the Other Claimants. To the extent to which any court proceedings have been commenced with respect to the Other Claims, CGIC shall provide the court file numbers within 30 days. As this information is available elsewhere, this is proportionate and efficient as it will enable the Plaintiff to conduct his own court file searches to determine if there have been any judicial findings.

[27] For the same reasons set out above, CGIC is not required to answer Refusals 43, 44, 45 and 46. These relate to particulars regarding the Other Claims including timing and geographical location. Similarly, I conclude that Refusals 50, 51, 52, 53, 54, 55, 56 and 58 do not need to be answered (except with respect any judicial findings regarding the Other Claims, which is covered by Refusal 49 above). These questions seek information regarding the involvement of Mr. Petch, Mr. Dykstra, Mr. Taillefer and Ms. Lepelaars in any of the Other Claims and the timing, geographical location and other particulars of the Other Claims. To the extent to which there is anything relevant sought in these questions, it is covered by my directions above regarding Refusal 31.

[28] I further conclude that Refusals 64, 66 and 67 are proper refusals and do not need to be answered. In these questions, the Plaintiff asks how many current alleged staged water claims CGIC has outstanding in Canada, Ontario and the Greater Toronto Area. Without any qualification or narrowing, these are overbroad, disproportionate and the information sought is not probative of any issues in this litigation.

[29] I arrive at a different conclusion with respect to Refusals 47, 48 and 70, which relate to whether Velan and the plumber hired by Velan to assist with the Property were involved in any of the Other Claims and Refusal 71, which asks CGIC to advise if Ms. Lepelaars, Mr. Faillefer and Mr. Dykstra mentioned that Velan was involved in the Other Claims. CGIC’s Defence cites the involvement of Velan and the plumber as part of the rationale for denying the Plaintiff’s Claim. Mr. Petch also testified that Velan’s name kept coming up in the investigations including those with respect to a potential connection between the Plaintiff’s Claim and the Other Claims. Therefore, I am satisfied that these questions regarding Velan and the plumber are relevant to any connection with the Other Claims. CGIC shall provide answers within 30 days.

[30] Group 4 (Refusals 15 and 21) – These refusals relate to discussions between CGIC and two other insurers, Aviva and Wawanesa, regarding allegations of similar staged water claims. CGIC has confirmed that it discussed similar claims with Aviva and Wawanesa, therefore, Refusal 15 has been answered. There is significant overlap between Refusal 21 and Refusal 31, except that in Refusal 21 the Plaintiff seeks all documents that CGIC received from these other insurers and all correspondence and notes from its discussions with the other insurers. CGIC submits that it has requested and provided all documentation which is responsive to Refusal 21 and it appears that no further efforts are required at this time, subject to any clarifications or questions arising.

[31] CGIC has previously raised the deemed undertaking rule (Rule 30.1.01(1)), litigation privilege and privacy legislation as additional reasons why it should not be compelled to produce the information and documentation sought by the Plaintiff particularly with respect to the Other Claims. CGIC did not advance any substantive arguments in this regard during the motion.

[32] To the extent to which CGIC is still advancing any of these positions, based on the record and the submissions before me, I conclude that they have no merit. I am not satisfied that the deemed undertaking rule applies to the information and documentation sought by the Plaintiff given that any documents at issue which were produced on discovery in other proceedings were produced by CGIC and not received by CGIC, as the rule requires (Kitchenham v. Axa Insurance Canada, 2008 ONCA 877 at para. 36). Further, there is no evidence before me with respect to when litigation was reasonably contemplated or that documents or information were created for the dominant purpose of litigation to support any assertion of litigation privilege by CGIC (Alofs v. Blake, Cassels & Graydon, 2016 ONSC 6907 at para. 19).

[33] Finally, to the extent to which there are privacy concerns regarding any documentation and/or information, consistent with efficiency and proportionality, the first step is to determine if production can be facilitated by appropriate terms, such as a sealing order or other confidentiality provisions as agreed upon by the parties or ordered by the court.

Examination For Discovery of Additional Representative

[34] The Plaintiff seeks leave to compel Mr. Dykstra to attend on examination for discovery as a second representative of CGIC.

[35] Rule 31.03 states:

2. Where a corporation may be examined for discovery,

(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and

(b) the examining party may examine more than one officer, director or employee only with the consent of the parties or the leave of the court.

(4) Before making an order under clause (2) (b) or (3) (b), the court shall satisfy itself that,

(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience; and

(b) examination of more than one person would likely expedite the conduct of the action.

[36] The applicable principles were summarized by J.E. Ferguson J. in Yang v. Simcoe (County), [2009] O.J. No. 4448 (S.C.J.):

“9 The case law sets out the principles used to determine whether motions for leave to examine a second representative of a party should be granted:

i)The refusal of the second examination would otherwise deprive the moving party of a meaningful discovery (Scintilore Explorations Ltd. v. Larche, [1995] O.J. No. 719 (Gen. Div.); Ing Wellington Insurance Co. v. Alexander Forbes Risk Services UK Ltd. [2003] O.J. No. 1012 (Sup. Ct.); Telemax Communications Inc. v. Canquest Communications (Canada) Inc., [2006] O.T.C. 252 (Ont. Sup. Ct.));

ii)The representative is unable, cannot or will not satisfactorily inform himself (Bayblis Estate v. Attorney - General of Canada (2000), 49 C.P.C. (4th) 179 (Ont. Sup. Ct.); Ing Wellington Insurance Co., supra.);

iii)The plaintiffs would otherwise not have a full inquiry into all relevant matters raised on the pleadings (Westcoast Transmission Co. Ltd. v. Interprovincial Steel and Pipe Corporation Ltd. (1984), 49 C.P.C. 101 (B.C.S.C.); Ing Wellington Insurance Co., supra.); and

iv)The questions have not been answered, or that answers given have been incomplete, unresponsive or ambiguous (Westcoast Transmission Co. Ltd., supra.; Ing Wellington Insurance Co., supra.)”

[37] The test for an additional examination for discovery is strict and orders to examine a second representative are rarely granted (Fischer v. IG Investment Management Ltd., 2016 ONSC 4405 at para. 40). To show that an examination for discovery has been unsatisfactory such that the examining party is entitled to a second examination, the examining party must demonstrate that the representative’s answers, including answers to proper questions and follow up on undertakings, have not been answered or are incomplete, unresponsive, evasive or ambiguous (Fischer at para. 41). The representative’s willingness and ability to inform himself or herself is critical in determining whether the examining party has been deprived of a meaningful discovery and the examining party must demonstrate that the representative did not inform himself or herself or was unable or unwilling to do so (Fischer at paras. 42-44). A second examination should not be ordered in the absence of “special circumstances” which requires a deficiency in the original deponent’s testimony (Fortini v. Simcoe (County), 2012 ONSC 1034 at para. 12).

[38] The Plaintiff submits that Mr. Dykstra should be produced for discovery because he is CGIC’s National SIU Director who commenced, led and was directly involved in CGIC’s investigations into the Plaintiff’s Claim and the Other Claims. The Plaintiff also argues that Mr. Petch was vague and evasive regarding the Other Claims and refused many questions therefore, it would be more efficient for Mr. Dykstra to attend.

[39] In my view, the Plaintiff has not satisfied the strict test for leave. I am unable to conclude that Mr. Petch was uninformed, evasive, unwilling and/or unable to inform himself or that his testimony was deficient such that the Plaintiff was deprived of a meaningful discovery. The fact that there were many refusals is not reflective of Mr. Petch being uninformed or evasive, but rather more a function of the nature of the questions posed by Plaintiff’s counsel together with the corresponding positions taken by CGIC. As set out above, in many cases, I have concluded that CGIC’s refusals with respect to the Other Claims were proper, in part or in full. Mr. Petch was examined for 2 full days, the Plaintiff has obtained a significant amount of information and documentation, all of the undertakings and approximately 75 refusals have been answered, resolved or withdrawn and CGIC has agreed that Mr. Petch will re-attend to answer questions arising from undertakings and refusals.

[40] The Plaintiff also acknowledges that the primary motivation in seeking to examine Mr. Dykstra is with respect to the Other Claims. Given my conclusions and directions above regarding the limited relevance and scope of questioning regarding the Other Claims, Mr. Dykstra’s attendance on discovery is unnecessary. As with Mr. Petch’s first examination, any questions where information is required from Mr. Dykstra, including with respect to the Other Claims, can be obtained by way of undertaking which is efficient and proportionate in the circumstances.

[41] Accordingly, I cannot conclude that “special circumstances” exist or that this one of the rare circumstances where leave should be granted. The Plaintiff’s motion for a second representative is dismissed.

III. Disposition and Costs

[42] Order to go on the terms set out above. Counsel may file a form of order with me for my review and approval. If there are any issues with respect to my directions above, the terms of an order or questions arising from my orders, counsel may schedule a telephone case conference.

[43] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) with me through the Masters’ Administration Office on a timetable to be agreed upon by counsel. If counsel cannot agree on a timetable, they may schedule a telephone case conference.

Released: February 10, 2020

Master M.P. McGraw