Court File and Parties

COURT FILE NO.: 6181/15 DATE: 20210107 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrea Belanger, Zara Belanger, a minor by her Litigation Guardian, Andrea Belanger, Quincy Belanger, a minor by his Litigation Guardian, Andrea Belanger, Daphne Belanger, a minor by her Litigation Guardian, Andrea Belanger, Plaintiffs

AND:

Dorothy Shaw, Defendant

BEFORE: Justice R. Raikes

COUNSEL: Jerry F. O’Brien -Counsel, for the Plaintiffs James J. Mays - Counsel, for the Defendants

HEARD: December 1, 2020

Endorsement

[1] The defendant seeks an order:

1. Granting leave, if needed, pursuant to r. 48.04(1) to bring this motion after the action has been set down for trial;
2. Compelling the plaintiff, Andrea Belanger (now Andrea Pepper), to attend for further examination for discovery;
3. Compelling the minor plaintiff, Zara Belanger (hereafter “Zara”), to attend for an examination for discovery.

[2] The defendant asserts that leave is not required under r. 48.04(1) but might be needed under r. 31.03(1) for Andrea Belanger who has already been examined for discovery. Since Zara was never examined, leave is not required to examine her. Regardless, leave should be given as the defendant has satisfied the applicable tests.

[3] The plaintiffs contend that leave is required under r. 48.04(1) to examine either plaintiff. The test is not met in this case. The plaintiffs also rely on r. 29.1.05. They argue that if leave for a second examination of Andrea Belanger or Zara is governed by r. 31.03, it should not be given.

Background

[4] The plaintiff, Andrea Belanger, was injured in a motor vehicle accident in Chatham on April 24, 2013. She was alone in her vehicle when the collision occurred.

[5] Andrea Belanger has a Ph.D. in neurophysiology and was employed full-time as a professor of biology and physiology in the nursing program at St. Clair College, Chatham Campus, when the accident occurred. She was married with three minor children: the plaintiffs, Zara, Quincy, and Daphne.

[6] The plaintiffs allege in their statement of claim that as a result of the collision, Andrea Belanger suffered permanent and serious physical and psychological injuries, including a mild traumatic brain injury. They further allege that her husband, Julian Belanger, developed and suffered from depression as a result of the injuries and impairments sustained by Dr. Belanger in the accident. Their marriage broke down and they separated May 2014.

[7] On September 8, 2014, Julian Belanger committed suicide. The plaintiffs allege that his death was caused or contributed to by the collision and negligence of the defendant.

[8] Andrea Belanger advances no claim for any loss or damage from the death of her husband. However, a claim for damages is advanced by her as Litigation Guardian on behalf of the minor children. At paras. 29-31 of the statement of claim, the plaintiffs plead:

Damages of Zara, Quincy and Daphne Belanger

29. As a result of the aforesaid negligence and the resulting death of Julian Belanger, the Plaintiffs Zara Belanger, Quincy Belanger and Daphne Belanger have suffered the irreversible loss of their father. Julian Belanger contributed significantly to their enjoyment of life, happiness and well-being. These Plaintiffs will never fully recover from the effects of his death.

30. As a result of the aforesaid negligence and the resulting death of Julian Belanger, these Plaintiffs have been injured, suffered nervous shock, emotional and psychological upset, pain, suffering, loss of enjoyment of life, anxiety and depression.

31. As a result of the aforesaid negligence and the resulting death of Julian Belanger, these Plaintiffs have sustained pecuniary damages, including loss of support, loss of inheritance, loss of pecuniary advantage, loss of consortium, loss of love, loss of services, loss of nurture, care, guidance and companionship, loss of future accumulations and other damages.

[9] A claim is also advanced on behalf of the children for Family Law Act damages arising from the injuries sustained by Andrea Belanger in the accident.

Litigation History

[10] This action was commenced by statement of claim issued April 21, 2015. The defendant filed a statement of defence and jury notice on October 16, 2015.

[11] The parties did not do a discovery plan as required by r. 29.1.03(1). That omission rests equally on the shoulders of both counsel.

[12] Andrea Belanger was examined for discovery on August 17, 2016. It is undisputed that the notice of examination did not specify that she was also being examined in her capacity as litigation guardian. Nevertheless, many questions were asked and answered concerning the children during that examination. At that point, the oldest child, Zara, would have been 10 years old.

[13] As at August 2016, Dr. Belanger and her children were residing with her boyfriend, Ryan Pepper. That fact was known and examined upon at the discovery.

[14] During the examination for discovery, defence counsel also asked questions concerning Dr. Belanger’s claim for damages for loss of income, loss of competitive advantage, early retirement, and loss of opportunity. The theory of loss was given by plaintiffs’ counsel who indicated that he expected to retain an expert to quantify the loss but had not yet done so.

[15] At the conclusion of the examination, defence counsel indicated that subject to undertakings, refusals and information that may be developed, he had no further questions at that time.

[16] Plaintiffs’ counsel served a Trial Record on September 6, 2016. The defendant did not consent to service of the Trial Record.

[17] In June 2017, the defendant brought a motion to compel answers to undertakings and refusals and to have Dr. Belanger re-attend for further examination for discovery arising from her answers to same. The motion was dismissed by Justice Donohue by order dated June 29, 2017.

[18] On May 22, 2018, the first of three judicial pre-trials was conducted by Howard J.. The action was placed on the May 2019 trial sittings for trial. The r. 50.08 pre-trial conference report expressly notes that the trial date was set “in the absence of consent of counsel for the defendant”. Leave was given to the defendant by Justice Howard to bring a motion, if necessary, to compel production of Dr. Belanger’s treating psychologist’s (Dr. Plotnik’s) clinical notes and records. There is no mention of further examination of Dr. Belanger or any motion for that purpose in the pre-trial report.

[19] At that first pre-trial conference, the plaintiff had not yet served any economic loss reports and a defence neuropsychological examination was scheduled for June 2018. I note that at the pre-trial conference before Howard J., the plaintiffs agreed to limit the claim to the defendant’s policy limits ($2,000,000) in return for the defendant’s admission of liability.

[20] By letter dated May 24, 2018, defence counsel confirmed that Andrea Belanger was making no claim for damages for the death of her late husband; only the minor children were doing so.

[21] On June 26, 2018, Dr. Belanger attended a defence neuropsychological evaluation by Dr. Syed who produced a report dated July 13, 2018. In her report, Dr. Syed indicated that Dr. Belanger had remarried. Dr. Syed conducted a collateral interview with Ryan Pepper, Dr. Belanger’s husband, as part of her evaluation. Thus, by July 2018, the defendant’s expert and defence counsel were aware that Dr. Belanger had remarried.

[22] On March 6, 2019, Zara was interviewed in the local newspaper concerning a children’s book she wrote on the topic of suicide. According to the article, Zara was an excellent student and was speaking at events sponsored by CMHA.

[23] On March 28, 2019, plaintiffs’ counsel served two expert reports: 1) a Loss of Earnings and Household Services Report that quantifies Dr. Belanger’s alleged economic losses, and 2) a Dependency Loss Report that values the loss of the children’s father’s non-economic contributions.

[24] On April 10, 2019, defence counsel wrote plaintiffs’ counsel and made his first request since the order of Justice Donohue for further examination for discovery of Andrea Belanger and his first ever request to examine Zara. Plaintiffs’ counsel responded the same day to say that he would not consent to same.

[25] A second judicial pre-trial conference was conducted by Desotti J. on April 15, 2019. Defence counsel did not seek leave at the pre-trial conference to bring the motion for further examination of Dr. Belanger or a first examination of Zara. The matter was then scheduled to be tried at the May 2019 trial sittings.

[26] Unfortunately, the trial did not proceed in May 2019 for reasons entirely beyond the control of the parties. On May 17, 2019, the trial was adjourned by Verbeem J. “on consent” to be placed number one on the May 2020 trial sittings.

[27] No motion was brought in advance of the May 2019 sittings to adjourn the trial to permit further examinations for discovery, nor was any motion brought to compel such examinations. Defence counsel advised that no trial preparation was done for the May 2019 trial date because counsel had been alerted that the trial would not be going ahead.

[28] No motion was brought after the May 2019 adjournment of the trial to seek further examination for discovery of Dr. Belanger or Zara. Instead, on March 2, 2020, the defendant served the report of Dr. Waisman which consisted of a paper review and psychiatric assessment of Dr. Belanger. The trial was scheduled for May 2020. By then, almost a full year had elapsed since the letter by defence counsel requesting those examinations and plaintiffs’ counsel’s refusal to consent. No explanation is offered for the failure to move in that period.

[29] The trial could not proceed in May 2020 due to the COVID 19 pandemic. Once again, the trial was adjourned to a new trial date – May 2021. The trial is estimated to take three weeks with a jury. Both counsel consented to the new trial date. A third judicial pre-trial conference has been held since May 2020.

[30] On June 1, 2020, defence counsel wrote plaintiffs’ counsel and renewed his request for further examination of Dr. Belanger and examination of Zara. After an exchange of correspondence, plaintiffs’ counsel took the position that the examinations were not warranted.

[31] This motion was served September 28, 2020.

Legal Principles and Analysis

Is leave required under r. 48.04(1)?

[32] The first issue to be determined is whether leave of the court under r. 48.04(1) is required in order to conduct the examinations for discovery requested.

[33] Rule 48.04(1) states:

Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. [Emphasis added.]

[34] Rule 48.06 states:

(1) A defended action shall be placed on the appropriate trial list by the registrar sixty days after the action is set down for trial or, if the consent in writing of every party other than the party who set the action down is filed earlier, on the date of filing.

[35] Rule 48.07 states:

Where in action is placed on a trial list,

(a) all parties shall be deemed ready for trial; and (b) [revoked] (c) the trial shall proceed when the action is reached on the trial list unless a judge orders otherwise.

[36] The defendant submits that leave is not required because she did not consent to the action being placed on a trial list. The plaintiffs argue that by consenting to the May 2020 and May 2021 trial dates – placing the action on the trial lists for those sittings – the defendant has consented to the action being placed on a trial list.

[37] It is clear that the plaintiffs unilaterally set the action down for trial in September 2016 soon after Ms. Belanger was examined for discovery. At the first judicial pre-trial before Howard J., the defence counsel expressly indicated that he did not consent to the action being placed on the May 2019 trial list. The plaintiffs acknowledge that the initial placement of the action onto the May 2019 trial list by Howard J. cannot be and is not relied upon by them to engage the requirement for leave of the court for further discovery.

[38] Although the defendant did not consent to the action being placed on the May 19, 2019 trial list, defence counsel did thereafter consent to the action being placed on the May 2020 and May 2021 trial lists. The adjournments to those trial sittings were made on consent of both parties.

[39] In Stonehouse v. The Corp. of the Town of Lakeshore, 2017 ONSC 3617, at para. 45, Patterson J. held that leave was required by the defendant under r. 48.04(1) on a motion for a further medical examination after the defendant had agreed to a trial date at the pre-trial conference and certified that the parties were ready to proceed to trial. Leave to appeal that decision to the Divisional Court was denied.

[40] Similarly, in Valemont Group Ltd. v. Philmor Goldplate Homes Inc., 2010 ONSC 1685, Karakatsanis J. (as she then was) held that leave was required to bring a motion for security for costs and summary judgment where the matter had been set for trial by a judge and later adjourned by another judge to a new date. Leave to appeal to the Divisional Court was denied (2010 ONSC 3195). At paras. 12 and 14, Justice Karakatsanis wrote:

12. This matter had already been set down for trial by Pepall J. for May 4, 2009 and pursuant to Rule 48.07, “where an action is placed on a trial list, all parties shall be deemed to be ready for trial”. Further, upon adjourning that date, Campbell J. determined that the trial should be held in the fall of 2009. In these circumstances, leave is required pursuant to Rule 48.04(1). A subsequent adjournment should not be allowed to defeat the purpose of the Rule; indeed the policy reasons for the Rule are strengthened by any delays of the trial date. A party should be entitled to a trial within a reasonable time. As anyone practicing before this Court will be aware, a trial date is a precious commodity. When litigants obtain a trial date, policy considerations strongly support the requirement to seek leave before any new motion can be brought. The parties are deemed to be ready for trial, and should not be able to easily derail this process just because the trial date has been moved back.

13. …If Rule 48.04 did not catch these motions, the purpose of the rule would be significantly undermined.

[41] The defendant relies on the decision of Master Muir in Arunasalam v. State Farm Mutual Automobile Insurance Co., 2015 ONSC 5235. That case was also an MVA. A pre-trial conference date and trial date were set when counsel appeared before a judge at a trial scheduling court in Toronto. The date for trial was set without any indication by defence counsel that the defendant wished to conduct an IME of the plaintiff; in fact, that subject had not be broached with plaintiff’s counsel. Plaintiff’s counsel agreed that an IME would have been appropriate but for the defendant’s agreement to fix a trial date which he contended was a “consent” to the matter being placed on a trial list.

[42] Master Muir reviewed the caselaw to that point and ultimately concluded that merely agreeing to a trial date does not constitute “consent” under r. 48.04(1). That Rule must be read in conjunction with r. 48.06(1) whereby a defendant agrees/consents to abridge the normal sixty days before a registrar will automatically place the action on a trial list. He relied upon the decisions of Perell J. in Fromm v. Rajani, at para. 7 and Stinson J. in Ananthamoorthy (Litigation Guardian of) v. Ellison, 2013 ONSC 340, at para. 12.

[43] In Fromm, the defence counsel completed the Toronto pre-trial and trial Certification Form and had agreed to a fixed trial date. Perell J. held that merely completing the forms did not constitute consent to the action being placed on a trial list which had already occurred.

[44] In Ananthamoorthy, the defendant brought a motion for a further IME. The plaintiff had set the action down for trial. Two pre-trial conferences were held and a trial date set before the defendant moved for the IME. At para. 12, Stinson J. wrote:

[12] I agree with Justice Perell. The regime for setting actions down for trial today is different than it was in 1992 when Hill v. Ortho was decided. No longer do parties file Certificates of Readiness nor are they, as they once were, deemed to have consented to an action being set down for trial. Now any party may set an action down for trial under rule 48.02(1) by serving and filing a trial record. Thereafter, the case is placed on a trial list after 60 days. Pursuant to rule 48.06(1), the 60 days may be abridged if every other party consents. The language in Rule 48.04(1) that imposes a requirement for leave to bring a motion upon any party who has consented to the action being placed on a trial list is thus a reference to consent under rule 48.06(1). It should not be confused with the Toronto Region Certification Form to set pre-trial and trial dates. In the present case, only the plaintiff set the action down. The defendants did not consent under rule 48.06(1) to placing the action on a trial list. They therefore do not require leave under rule 48.04(1) to bring this motion.

[45] In my view, a distinction must be made between an action being automatically listed for trial by the registrar sixty days after the trial record is filed pursuant to r. 48.06(1), and a case where the trial date has been set with the consent and participation of counsel. In the former case, there is no consent by the party to the action going on a trial list. It is an automatic institutional step. By contrast, in the latter instance, the party expressly or implicitly signifies his or her consent to the trial date set; viz., to the matter being fixed for trial on a court trial list. I agree with Karakatsanis J. in Valemont Group Ltd. that r. 48.04(1) must capture such circumstances.

[46] In Chatham and other centres in the Southwest Region, Assignment Courts are held where dates are set for trial with direct input from counsel. Matters are assigned to a specific trial list for a particular sittings. A party who feels that the action is not ready to proceed or should not be on the list can, should and, in my experience, does so the advise the court. He or she can ask to adjourn the case to a later Assignment Court to allow discovery to be completed or can move to have the action struck from the list.

[47] Counsel routinely advise at pre-trial conferences and at Assignment Courts whether discoveries remain to be completed, whether IMEs are outstanding or contemplated, and whether it is premature to fix a trial date. Where counsel agree on a trial date and indicate to the court expressly or by implication that they are ready for trial, it strikes me as antithetical to efficient use of court resources to say that one side retains the right to further discovery without of leave of the court as contemplated by r. 48.04(1). If the drafters of r. 48 had intended r. 48.04(1) to be limited to consent under r. 48.06(1), they could have done so. In my view, a restrictive construction should not apply in these circumstances and is inconsistent with r. 1.04.

[48] This is not a case where counsel simply gave available dates in order to complete the pre-trial conference form as required. The action was placed on the trial list for trial at the May 2020 trial sittings and marked number one on that list. No objection was made by defence counsel and, in fact, he consented to that step. Likewise, he consented to the action being placed on the May 2021 trial list with no objection of any kind.

[49] In these circumstances, I find that leave is required pursuant to r. 48.04(1) to bring the motion for further examination for discovery.

Should leave be granted under r. 48.04(1)?

[50] The next issue is whether leave should be given. The test for granting leave is whether the moving party has established that there has been a “substantial or unexpected change in circumstances” such that a refusal would be manifestly unjust: Hill v. Ortho Pharmaceutical (Can.) Ltd., at p. 4; Moynihan v. Rowe, 2018 ONSC 354, at para. 61; Denis v. Lalonde, 2016 ONSC 5960, at paras. 11-23. If additional information or documentation is obtained in keeping with the ongoing obligation to disclose, that further information or documentation may suffice to meet the requirement of a substantial or unexpected change in circumstances: Denis v. Lalonde, at para. 25.

[51] The defendant relies on the following facts to establish a substantial or unexpected change in circumstances such that further examination for discovery of Dr. Belanger should be allowed:

1. The change in Dr. Belanger’s marital status and “the involvement of another father figure in her household”:
2. The expert reports served on March 28, 2019 wherein significant damages arising from Julian Belanger’s suicide are quantified;
3. Oral examinations occurred over four years ago;
4. Subsequent investigation and disclosure have not clarified the issue of alleged ongoing damages sustained when Julian Belanger committed suicide and how they are attributable to the subject collision; and
5. The extenuating circumstances of the plaintiffs’ mitigation of damages remains unclear.

[52] I start first with Dr. Belanger’s remarriage to Ryan Pepper. Dr. Belanger and the children were cohabiting with Mr. Pepper when the examinations for discovery were held in August 2017. She was questioned about that relationship. A full opportunity to explore the new family dynamic was available and defence counsel availed himself of that opportunity by asking questions about it.

[53] Further, the defendant has known that Dr. Belanger and Mr. Pepper were married since July 2018. Despite that knowledge, no request for further discovery was made until April 2019. No motion was brought until September 2020. No explanation for the delay in bringing this motion is provided. The failure to act sooner belies the suggestion of a “substantial and unexpected” change in circumstances.

[54] The defendant also points to the report of Dr. Plotnik dated April 15, 2019 in which Dr. Plotnik indicated that Dr. Belanger had made considerable progress in overcoming her grief from the death of her late husband and had since remarried. As indicated, the fact of her remarriage was already known by the defendant ten months earlier and, in any event, she makes no claim for any loss or damage related to her late husband’s death.

[55] I have reviewed the Loss of Earnings and Household Services Report served March 28, 2019. It calculates Dr. Belanger’s losses based on assumptions provided by counsel. For example, it assumes that she was unable to advance in her employment. Dr. Belanger testified on her examination for discovery about a position that she was invited to apply for but did not. She was examined on that issue. Likewise, the report estimates her losses based on earlier dates of retirement. She was examined on that subject in August 2016. The report is merely a mathematical exercise based on assumptions already disclosed to the defendant and on which examination was conducted or could have been.

[56] The Dependency Loss Report served on March 28, 2019 simply extrapolates Mr. Belanger’s anticipated income from his past income tax returns and applies a notional expenditure rate to that projected income for each child. It is a calculation derived from assumptions made about his likely future income and a rate picked from a study. I note that counsel for the defendant did not articulate in his written or oral submissions what issues arise from the report and why examination for discovery on those areas is necessary to ensure a fair trial.

[57] I observe that no mention was made of these expert reports when defence counsel wrote to plaintiffs’ counsel in June 2020 to explain why he felt a further examination of Dr. Belanger was warranted. The only reason given was Dr. Belanger’s remarriage.

[58] I observe that defence counsel first wrote to request further examination of Dr. Belanger in April 2019, and did nothing to seek an examination until September 2020. By that date, this action would already have been tried and decided but for the two adjournments, the last due to COVID. My point is that if this was truly substantial and unexpected and essential to a fair trial, why did the defendant wait so long to bring the motion? Why was the motion not brought well in advance of the May 2020 trial date? No explanation is provided.

[59] That the examination for discovery took place four years ago does not, in itself, merit a further examination: Suchan v. Casella, [2006] O.J. No. 2467 (Master Dash), at para. 55. The mere passage of time alone is not enough.

[60] With respect to points 4 and 5 in para. 51 above, these submissions are vague and generalized, and do not establish any “substantial or unexpected change in circumstances”.

[61] Whether looked at individually or collectively, the reasons advanced to justify granting leave to bring this motion vis-à-vis Dr. Belanger are inadequate. I am not satisfied on a balance of probabilities that there has been a substantial and unexpected change in circumstances such that a refusal would be manifestly unjust in this case. I am also not satisfied that it would be unfair to the defendant to proceed to trial without further examination of Dr. Belanger in these circumstances. Put another way, a further examination of Dr. Belanger is not necessary in the interests of justice.

Is leave required and, if so, should it be granted under r. 31.03(1)?

[62] If I am wrong and leave is not required under r. 48.04(1), I am satisfied that leave would still be required under r. 31.03(1). The defendant completed the examination of Dr. Belanger in August 2016. Justice Donohue dismissed the defendant’s motion for undertakings and refusals including a request that Dr. Belanger re-attend for further examination. Thus, the first examination of Dr. Belanger is complete.

[63] Pursuant to r. 31.03(1), a party is entitled to examine a party adverse in interest only once unless leave of the court is given. In Suchan v. Casella, Master Dash held that exceptional circumstances such as a substantial deterioration in the plaintiff’s condition are required before the court will allow a further examination for discovery. Similarly, in Abu-Yousef v. Foster (2006), 36 C.P.C. (6th) 150, leave was granted where after the action was set down, the defendants learned that the plaintiff had been in a third motor vehicle collision and was alleging that he was suffering from psychological and emotional problems from the accidents.

[64] The defendant points to Dr. Belanger’s remarriage and Mr. Pepper’s role in the home, the economic loss expert reports reviewed above, and Dr. Plotnik’s report in which he refers to overcoming her grief which the defendant characterizes as “mitigation of damages” to justify a second examination. I have reviewed these grounds above. In my view, this is not a case where leave for a second examination should be granted.

Should leave be granted to examine Zara, if needed?

[65] The final issue is whether leave under r. 48.04(1) should be given to examine Zara and, if not, should an order be made that Zara cannot be called as a witness. The defendant relies on the decision in McCallum v. Thames Valley District School Board, 2012 ONSC 396, at para. 26.

[66] In McCallum, the defendant moved to examine an 11-year old child who was named as a plaintiff in the action. The only claim being advanced for the child was for loss of care, guidance and companionship under the Family Law Act. The principle plaintiff was the child’s mother who was injured during a school skating outing. The discovery plan made no mention of examination of the child. Defence counsel served a notice of examination of the child by her litigation guardian. Defence counsel asserted that the reference to litigation guardian was inadvertent. He went ahead and examined the mother as litigation guardian. He then wanted to examine the child as to her observations of the accident and the level of supervision in place. The plaintiffs argued that there were several adult witnesses available to testify to those issues.

[67] McDermid J. dismissed the motion but held that it would not be fair to the defendants for the plaintiffs to deny the opportunity to examine the child and call her as a witness at trial as to the circumstances surrounding the accident and supervision. Accordingly, the plaintiffs were required to undertake not to call the child as a witness at trial, failing which the examination could proceed.

[68] The plaintiffs rely on rr. 29.1.05(1), 31.03(5), and 48.04(1) in opposing an examination of Zara.

[69] Dealing first with r. 29.1.05(1), the court has the discretion to decline to permit or limit examination for discovery where the parties have failed to agree on a discovery plan. There is no evidence before me as to efforts made to agree on a discovery plan. It is not the case that there is evidence that the plaintiffs tried to obtain agreement and could get no response from defence counsel. Both sides simply did not comply with the rule.

[70] Rule 31.03(5) states:

Where an action is brought by or against a party under disability,

(a) the litigation guardian may be examined in place of the person under disability; or (b) at the option of the examining party the person under disability may be examined if he or she is competent to give evidence, ...

[71] Zara and the other minor children are parties under a disability: r. 1.03(1). Andrea Belanger is their litigation guardian.

[72] No notice of examination was ever served to examine any of the minor children. Unlike McCallum, there is no notice of examination of Dr. Belanger as litigation guardian. Although plaintiffs’ counsel believed and understood that Dr. Belanger was being examined in her personal capacity and as litigation guardian, there was no agreement to that effect. Neither counsel placed on record during the examination that that was the basis of the examination.

[73] I conclude that the examination for discovery of Dr. Belanger was not an examination under r. 31.03(5). The request to examine Zara does not, therefore, amount to a second examination for which leave would be required under r. 31.03(1).

[74] The final consideration is whether leave should be given under r. 48.04(1) for the motion to examine Zara.

[75] I am satisfied that leave should be given and an order made for an examination for discovery of Zara. In my view, there has been a substantial change in circumstances such that a refusal to grant leave would be manifestly unjust for the following reasons:

1. In August 2016, Zara was only 10 years old. She is now 15 years old.
2. In August 2016, Zara’s father had been dead only two years. She was eight years old when he died.
3. She has matured and grappled with the consequences of that loss since then as evidenced by her work with CMHC and the children’s book on suicide.
4. The effects on her of her father’s suicide may be better understood at this point.
5. She is better able to understand the process and to respond to questions.
6. A significant claim for damages is made on her behalf arising from her father’s suicide.
7. A claim for loss of care, guidance and companionship is advanced in respect of her mother’s injuries.
8. She is listed as a witness to called by the plaintiffs at the trial of this matter.
9. She resides with her mother, Mr. Pepper, and her siblings in the same home and is thereby privy to dynamics of that family unit.

[76] Defence counsel has indicated that the scope of the examination of Zara will be limited and can be worked out with plaintiffs’ counsel. The examination will be conducted remotely. I am concerned that questions already asked of Dr. Belanger not be repeated. This is not a chance to get from Zara that which was not permitted from Dr. Belanger. Further, this is not an opportunity to explore the connection between her mother’s accident and her father’s suicide, if any. The examination should take no more than two hours. Zara shall be permitted to have a support worker present if needed. The examination shall be completed not later than February 11, 2021 so as not to jeopardize the pending trial date.

Costs

[77] An issue was raised by plaintiffs’ counsel concerning costs from a Divisional Court appeal that were unpaid including interest. Based on submissions made to me, I understand that issue has resolved and expect that payment has been made since this matter was argued. If I am wrong in that assumption, I will remain seized of the issue and counsel may seek a virtual hearing to address it.

[78] I heard brief submissions regarding costs at the conclusion of argument. They could not know at that time (nor did I) that there would be some division of success. In such circumstances, if the parties cannot agree on costs, they may make brief written submissions not exceeding 3 pages within 15 days hereof.

Conclusion

[79] I conclude as follows:

1. Leave to bring a motion for a further examination for discovery of the plaintiff, Andrea Belanger, is denied.
2. In the event leave is not required to bring the motion, leave for a second examination of Andrea Belanger is denied.
3. Leave is granted to bring a motion for an examination for discovery of the minor, Zara Belanger.
4. Zara Belanger shall attend for an examination for discovery on the following terms: i. The examination will be conducted remotely; ii. The examination will not exceed two hours; iii. A support person may be present during the examination; iv. The examination will not repeat questions asked of Andrea Belanger; and v. The examination shall be completed on or before February 11, 2021.
5. If the parties cannot agree on costs, they may make written submissions not exceeding three pages within 15 days hereof.

Justice R. Raikes Date: January 7, 2021