COURT FILE NO.: CV-18-178 and CV-19-179 (Guelph)
DATE: 20210330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHEIKH SAIFUDDIN
Plaintiff
- and -
CYNTHIA ANN MARIE SCHRAM
Defendant
AND BETWEEN:
LAURA MEATTE
Plaintiff
- and -
CYNTHIA ANN MARIE SCHRAM
Defendant
Alden Dychtenberg, for the Plaintiffs
William West, for the Defendant
Heard: March 29, 2021 by video conference
Chown J.
ENDORSEMENT
[1] I had three motions before me today regarding trial consolidation, undertakings, refusals, production from non-parties, and other relief. By the time of the hearing of the motion today, there were only a few matters in controversy.
Leave to Bring this Motion
[2] Mr. West argued that leave was not required for this motion and if it was required, it met the test for leave. Mr. Dychtenberg did not oppose leave being granted if it was required. I make no ruling on whether leave was required.
Order for Trial Together
[3] Different judges in Ontario may treat the question of consolidation differently, with some requiring that consolidated pleadings be prepared and delivered, and others permitting existing separate pleadings to remain but ordering consolidation of the court files into one file, and that future filed documents use a new single style of cause and one court file number.
[4] I have been referred to Paterson v. Stewart Title Guaranty Company, 2020 ONSC 4609 where on an opposed motion over whether the matters should be consolidated or tried together, Justice Boswell did not order consolidation, but rather he ordered trial together.
[5] In this case, I also do not think consolidation is the right approach, for the following reasons:
a. there is a tidy distinction between the two matters in that there is one claim for each plaintiff;
b. the pleadings here are in no way unwieldy such that there would be a benefit to streamlining them through consolidation;
c. one case may settle before the other and if so, the settled matter can be readily terminated without any involvement of the other matter;
d. if for any reason one plaintiff retained a different lawyer, this might require the pleadings to be split again and amended back to their current state;
e. this case is in its end stages, not its initial stages; and
f. although it may be possible to avoid this with an appropriate order, I do not want to put the parties to the additional unnecessary work of preparing amended pleadings.
[6] I will order trial together, or one after the other, or as the trial judge shall otherwise direct. I also order that the evidence, information and productions in both actions shall be shared. In practical terms, that likely deals with any issue about the implied undertaking rule but for added clarity I include an order that despite rule 30.1.01(3), evidence and information as described in rule 30.1.01(1) in either action may be used for purposes of both actions.
Further Examination on Questions Arising from Undertakings
[7] The plaintiff Sheikh Saifuddin does not oppose the request for an order that he submit to a further examination for discovery on questions arising from undertakings and from questions that were initially refused but subsequently answered.
Who is in the Photo?
[8] The defence seeks an order that “the Plaintiff, Laura Meatte, and the Plaintiff, Sheikh Saifuddin, shall separately advise counsel for the Defendant as to whether the Plaintiff, Laura Meatte, is depicted in the provided photograph appearing on the Wedding Ring’s website from the Newmarket Wedding Expo in 2019.” The photo was taken after the examinations for discovery and the defence believes it shows the plaintiff Laura Meatte at an August 2019 consumer show where the plaintiffs may have rented a booth for the Rapunzled hair extensions business/hobby. They seek confirmation. They have not served a request to admit on the question but have made the inquiry, which has been refused.
[9] There is nothing in the Rules that would oblige a party to prepare written explanations for things that occurred or for photos that were taken post-discovery. I have considered whether the scope of the continued examination of Mr. Saifuddin would properly include the question of whether Ms. Meatte appears in the photo. Neither counsel could immediately direct me to any case about whether, at a further examination for discovery, the proper scope of questions includes documents created and produced after the first discovery.
[10] I have reviewed rules 30.07, 31.02, 31.03, 31.05 and rule 31.09. The answer is not contained in the text of these rules. There is a clear intention that a party should not be subjected to both oral and written examination, and that in general only one examination is allowed, but that a party is obliged to submit to further examination on corrected answers. There is also a strong tradition and body of case law that further examination arising from answers to undertakings is permitted. Clearly, examination arising from refused questions that are subsequently answered is permitted.
[11] My quick research also revealed Barron v Nyguyen (1991), 3 C.P.C. (3d) 67, where the court ordered a further examination when a medical report indicated that the plaintiff’s condition had worsened. This is admittedly a very different circumstance from the one here, but it does show that in an appropriate case the court may order a further examination which is not limited to matters arising out of answers to undertakings or initially-refused-but-subsequently-answered questions.
[12] In this case I will order that it shall be within the proper scope of the further examination of Mr. Saifuddin to ask him whether he and/or Ms. Meatte and/or Rapunzled had a booth at the Newmarket Wedding Expo, and whether it is Ms. Meatte in the subject photo. These are relevant questions. They arise from an area that is at the heart of the issues between the parties, specifically the extent disability or ability of the plaintiffs. There is evidence that the plaintiff deleted potentially relevant postings or web pages the day after his examination for discovery. Mr. Saifuddin initially denied making any money from Rapunzled but has now admitted making a small amount. The records of Rapunzled were not included in the plaintiffs’ affidavit of documents. The information would be simple to provide but was refused. All of this generates suspicion. The answers may help inform the parties’ settlement positions. Requiring that such questions be answered should not greatly expand the time of the examination.
Deleted Information
[13] The defence also seeks an order that the plaintiff Sheikh Saifuddin shall provide “a written indication as to what was deleted from the Rapunzled and Digitalks websites subsequent to the Plaintiff’s Examination for Discovery; when it was deleted; who deleted it; why it was deleted; and in the event that someone other than the Plaintiff deleted it, whether the Plaintiff caused it to be deleted.”
[14] Mr. Dychtenberg argues that defence counsel proceeded improperly at the discovery by asking questions about information available in web pages or postings that appeared to have been created by Mr. Saifuddin, but which were not contained in any party’s affidavit of documents. Further, the defendant’s examination proceeded first and when asked whether the defence had any further evidence on the issue of damages, the answer was that there was nothing other than what was in the provided productions, despite awareness of the Rapunzled website and what the defence believed was a business. Mr. Dychtenberg argues that the proper approach would have been to include the Rapunzled web site and Digitalks postings as documents in the defendant’s affidavit of documents, to disclose these during the examination of the defendant, to print out the information, to permit the witness and counsel to review them, to mark them as exhibits, and then proceed to ask questions.
[15] Mr. West argues that nothing improper was done and it is not necessary to include in an affidavit of documents pages from an adverse party’s website or social media that have not been printed. Mr. West also argues that the material ought to have been included in the plaintiff’s affidavit of documents.
[16] Printing of a web page or internet content is clearly not the appropriate distinction for whether that web page should be included in an affidavit of documents. In Leduc v. Roman, 2009 CanLII 6838 (ON SC) at para. 29, it was held that “An opposite party who discovers and downloads postings from another’s public profile also operates subject to the disclosure and production obligations imposed by the Rules.” But I do not need to decide the parameters of whether or when internet content is within the possession, power or control of a party or whether what happened at the discoveries was inappropriate. I tend to think that Mr. Dychtenberg is correct that examining counsel should not have proceeded in the fashion she did, and examinee’s counsel should not have let it continue. However, assuming the approach taken was improper, I do not think the appropriate remedy is to foreclose the defence from exploring the matter.
[17] The Rapunzled web page and the Digitalks Facebook and other postings in question are potentially of significant importance. They relate to Mr. Saifuddin’s efforts to sell products on the internet and started before and continued after the subject accident. Mr. Saifuddin spent considerable money and likely considerable time developing the website and postings. Whether this was a hobby or a business, successful or unsuccessful, it is relevant to understanding his abilities or disabilities and his function. I point out also that it is the kind of information that has the potential to be helpful to either side’s position. It may tend to show that Mr. Saifuddin was capable of more than he claims, or it may show that he tried and failed at a business due to his injuries.
[18] Again, there is nothing in the Rules that would oblige a party to prepare written explanations for things that occurred post-discovery. I may have authority to make such an order, but it seems to me the more appropriate approach is to allow defence counsel to ask about the matter at the intended further examination.
[19] In the hope that it will avoid controversy at this examination, I specifically order that the scope of Mr. Saifuddin’s examination may include what was deleted from the Rapunzled website and DigiTalks Facebook posts subsequent to the plaintiff’s examination for discovery; when it was deleted; who deleted it; why it was deleted; and in the event that someone other than the plaintiff deleted it, whether the plaintiff caused it to be deleted.
Property Damage File from Prior Accident
[20] Ms. Meatte was involved in a motor vehicle accident on June 13, 2015, less than two years before the July 26, 2017 accident which is the subject of these actions. Ms. Meatte has produced the medical records arising from the prior accident but will not write her insurer to request the property damage file, saying that the property damage records are irrelevant.
[21] In P. v Waite, 2013 ONSC 7916, the accident in issue occurred in 2009 and the defence sought property damage records from an accident the plaintiff had been involved in in 2002. Master Roger held:
In this action the Plaintiff has provided sufficient information about this earlier accident at her examination for discovery such that the actual property file is not relevant. What is relevant to this ongoing action is whether any injuries from this earlier accident were and are ongoing and this will be in the medical documentation produced for the period before the accident. It will not be in the property file of the earlier accident. I note that the property file of an earlier accident can in some actions be a relevant request but not in all actions and not in this action considering the evidence on discovery where the Plaintiff provided details of this earlier accident and disclosure of medical documentation for the period three years pre-accident.
[22] In Memelli v. Bhandal, 2021 ONSC 802, I ordered production of a property damage file from an accident that had occurred 14 years prior to the subject accident. The prior accident was serious, such that the plaintiff did not return to significant work for seven or eight years.
[23] Here, there were injuries from the prior accident. The injuries overlap with the claimed injuries for the subject accident. The subject accident occurred less than two years after the prior accident. In my view the property damage records from the prior accident are relevant and should be requested.
Other Matters
[24] The other issues in these motions were resolved either before or at the hearing. I have edited the draft orders to reflect the discussion at the hearing and my decisions above.
Costs
[25] The defendant seeks the costs of these motions.
[26] Mr. West correctly argued that even though the undertakings were largely answered before the hearing, it took a motion to obtain the answers. Efforts were made to avoid the necessity of the motion.
[27] Mr. West has submitted a costs outline claiming $24,000. It is not clear without checking the math whether this is on a partial indemnity or actual rate scale. However, either way that is an inappropriate amount for these motions.
[28] Cases involving non-objective injury claims are difficult for both sides. Here, the documentation requests of the defence have been very thorough and substantial. Although delayed, plaintiff’s counsel has provided thorough responses.
[29] The time required to receive, review and analyze documentation and to make follow up requests in these kinds of cases is significant for both sides. For the defence, a great deal of time is required analyze documents received in the productions and documents received in answer to undertakings, and then to determine the adequacy of the responses of the answers to undertakings, and to make follow up requests. The defendant should only be compensated in this motion for the work required to compel the plaintiffs to fulfil their obligations, not time spent analyzing. In some cases it was non-parties who were dilatory. Analysis and follow up regarding the responses and positions of non-parties is time consuming.
[30] While I would expect the defence’s time involved in this case is very substantial, much of the time is probably more properly costs in the action rather than in the motion.
[31] I do acknowledge that there must also have been a lot of work involved in preparing the motion records, which are thorough and detailed. Three motion records were prepared. I am aware that the court will not normally accept a single motion record with two styles of cause and two court file numbers on it. (That may not be the practice in all regions but it is the practice in Guelph.) That and the defendant’s concern about the implied undertaking rule might have explained the need for two motion records, but here, for some reason, the court did accept one of the motion records despite the fact that it had both styles of cause on it.
[32] In any event, the fact that three motion records were prepared instead of two must have added considerably to the work involved and there were ways to reduce the duplication.
[33] Mr. Dychtenberg appropriately acknowledged that he and his office should have put their minds to this matter more diligently sooner than they did.
[34] As to the motion styled in both actions, it was for consolidation and for records from a non-party, Wedding Ring Inc. To the extent there was a dispute on the consolidation issue, the outcome favoured the plaintiff, and it was not the fault of the plaintiff that a motion was required to obtain records from Wedding Ring Inc. There will be no costs for that motion.
[35] The other two motions also included requests for orders from non-parties, which were unopposed by the plaintiffs. The issues regarding undertakings and refusals were resolved in favour of the defendant except for refusal No. 1 in the Saifuddin action, which was partially resolved in the defendant’s favour (in that the scope of examination on the further examination is ordered to include this). The motions were necessary because of the failure to attend to these matters by the plaintiffs, and the defence was largely successful in their motions.
[36] In my view, the appropriate amount for the losing parties to pay for the two motions styled in each action is $3,500 each.
[37] I have edited and signed the orders in all three motions.
“Justice R. Chown”
Released: March 30, 2021