Court File and Parties

Baron v. Niagara (Region), CITATION: 2020 ONSC 978

COURT FILE NO.: 10761/15

DATE: 2020-02-13

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ronald Stuart Baron, Plaintiff AND: Regional Municipality of Niagara Police Services Board et al.

BEFORE: Mr Justice Ramsay

COUNSEL: Margaret Hoy for the plaintiff Mickey Cruickshank for the defendants

HEARD: February 12, 2020 at Welland

Endorsement

[1] This is a motion for discovery by the defendants.

[2] The plaintiff is suing the police. According to the pleadings, the defendants say that they answered a call for service to his residence to check on the welfare of a female person inside. They were invited in and asked her to talk to them on the back steps. To prevent the dog from running outside, an officer held it by the collar, whereupon the plaintiff became combative and had to be restrained. The plaintiff says that the police broke into his house, choked his dog and beat him up. He seeks damages for physical and mental harm, loss of income, medical and other expenses and loss of the opportunity to train the dog as a service animal.

[3] The plaintiff was examined for discovery on December 7, 2018. Counsel for the defendants wrote to counsel for the plaintiff on January 10, 2019 and April 4, 2019 to seek reconsideration of questions refused and fulfilment of undertakings given. Counsel for the plaintiff answered one undertaking on each of April 12, June 20 and July 30, 2019. The plaintiff invoiced the defendants $113.19 for Dr Song’s records on May 28, 2019 and $40 for the records from the Lake Street Walk-in Clinic on May 29, 2019. The defendants paid these invoices on June 21, 2019. The clinical records of Dr Song were produced on July 30, 2019. Counsel wrote to request again the records of the Lake Street Walk-in Clinic on October 3, 2019. On November 8, 2019 counsel for the defendants wrote to the plaintiff to request fulfilment of all remaining undertakings and reconsideration of refusals, and available dates for a motion. Further productions, including the records of the Lake Street Walk-in Clinic, were made after the present notice of motion was served.

[4] The refused requests involve medical and employment records and the file for the dog related to its proposed training as a service animal. At the examination for discovery, the general position taken by the plaintiff was that medical records pre-dating the incident are irrelevant. This was erroneous. Evidence of the plaintiff’s previous physical and mental condition is relevant to damages, specifically, whether the plaintiff’s post-incident condition was caused by the alleged torts.

[5] The employment records are relevant to the claim for loss of employment. The file on the dog is relevant to whether the alleged tort caused the economic loss claimed.

[6] The requests for disclosure were basic, relevant and proportionate to the claim. Although the parties never agreed to a disclosure plan, it is by now long since past the time that these basic requests should have been answered. It is also obvious that not much would have been forthcoming if the defendants had not brought the motion. I exercise my discretion to order production.

[7] I now proceed to the remaining items one by one.

Refusals

[8] With respect to refusals #1 and 2 on the chart at tab 1 of the motion record, the defendant has now produced the records of Dr Malik and the Quest Community Health Centre. The defendant is ordered to produce the two missing pages.

[9] Refusals #4, 6 and 7: The plaintiff has answered, “The records will be requested.” The defendant is ordered to produce the records or, failing that, the letter of request to the record holder and the answer, if any, or a statement that no answer was received.

[10] Refusal #9: The plaintiff produced prescription printouts from Shoppers Drug Mart and Quest for the period after the incident and says that there are no records from before the incident. The plaintiff is ordered to provide the defendants a consent allowing them to seek these records from the record holders.

[11] Refusal #13: The defendants want the plaintiff’s employment file from his employer, Waterloo Managed Software Services. The plaintiff submits that this is over-reaching. I do not agree. The income tax records that the plaintiff has provided show fluctuations in his income, but they do not explain the causes of those fluctuations. The plaintiff will produce this file to the defendants.

[12] Refusals #19 and 20: The contents of the Lions Foundation file are relevant to the value of the dog. Was it really destined to be a service dog worth $25,000? How much did the plaintiff pay for it? The plaintiff is ordered to produce the file or, failing that, the letter of request to the record holder and the answer, if any, or a statement that no answer was received. Personal information of third parties may be redacted. The plaintiff is ordered to produce his copy of the application submitted to the Foundation and the agreement between himself and the Lions Foundation.

Undertakings

[13] Again, I refer to the chart at tab 1 of the motion record.

[14] Undertakings #2 and 10: The plaintiff is ordered to disclose the identity of the ear, nose and throat specialist who treated him and to provide proof of the best efforts that have been made to procure the doctor’s records. That proof consists of copies of correspondence to and from the doctor, or if no answer is received, a statement to that effect.

[15] Undertaking #4: The plaintiff is ordered to provide proof of the best efforts that have been made to procure the records of the walk-in clinic on Vine Street. That proof consists of copies of correspondence to and from the doctor, or if no answer is received, a statement to that effect.

[16] Undertaking #5: The plaintiff is ordered to provide proof of the best efforts that have been made to procure the records of Dr Stark. That proof consists of copies of correspondence to and from the doctor, or if no answer is received, a statement to that effect.

[17] Undertaking #6: The plaintiff undertook to advise if the date physio first started was other than January 2015. He has advised that it was January 2015. This undertaking has been fulfilled.

[18] Undertaking #7: The plaintiff is ordered to provide proof of the best efforts that have been made to procure the records of Victoria Van Helvert. That proof consists of copies of correspondence to and from the doctor, or if no answer is received, a statement to that effect.

[19] Undertaking #9: This is dealt with under Refusal #9.

[20] Undertaking #13: This is dealt with under Refusals #19 and 20.

[21] Undertaking 14: The plaintiff says that the list of out-of-pocket expenses that has been produced contains all the out-of-pocket expenses that he is claiming. He shall not claim any other out-of-pocket expenses without leave of the trial judge.

Disposition

[22] The plaintiff shall comply with all of the above orders within 45 days. Either party may make written submissions not exceeding 3 pages, to which a bill of costs and any offers to settle may be attached, within 10 days. If a party makes such submissions, the other party may reply within 5 days.

J.A. Ramsay J.

Date: 2020-02-13