COURT FILE NO.: CV-15-3269-0000
DATE: 2021-04-06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Imran Khan, Kamran Khan, Feryal Khan, minors by their Litigation Guardian, Abdul Badee, Abdul Badee and Saira Sultana Khan
AND:
The City of Hamilton, The Corporation of the City of Hamilton, The Regional Municipality of Hamilton-Wentworth, Hamilton Region Conservation Authority, Munnawar Khan, Gul Haram, Mehboob Hassan, Mehmood Hassan, Asiea Khan, Sophie Khan, Bushra Yousaf, Fareeha Yousaf, and Urooj Qazi
BEFORE: Kurz J.
COUNSEL: I. Furlong, counsel for the Plaintiffs, A. Williams, Associate
M. Brown, counsel for the City of Hamilton, Defendant
J. Diacur, Counsel for Hamilton Region Conservation Authority, Defendant E. Coulson, articling student
HEARD: March 29, 2021
ENDORSEMENT
[1] This is a motion by the Plaintiffs to require the Defendants, City of Hamilton (“Hamilton”) and Hamilton Region Conservation Authority (“HRCA”) to answer refusals, reattend at examinations for discovery to answer all proper questions arising from their answers and to produce further and better affidavits of documents.
[2] This action arises from the injuries sustained by the minor Plaintiff, Imran Khan (“Imran”), who was ten years old on August 10, 2013. On that date, Imran and his extended family were first time visitors to the Albion Falls Park, which is located in the City of Hamilton and operated by HRCA. Imran followed the municipal sidewalk that led to a stairway, both of which were owned by the City of Hamilton. He walked down the stairs and followed a trail for a short distance. This trail was also owned by the City of Hamilton. The plaintiffs plead that Imran fell from the trail, dropping a height of approximately thirty feet, resulting in catastrophic injuries. The Plaintiffs further allege that the Hamilton and HRCA were reckless or negligent in failing to take steps to remediate any danger that may have caused Imran’s fall. The Plaintiffs’ claim is for about $20,000,000.
[3] Examinations for discovery were conducted with representatives of both Hamilton and HRCA. During the course of those examinations, counsel for those defendants refused to allow their client’s representatives to answer a number of questions.
[4] I have heard submissions on those questions and have indicated my order in regard to them to counsel arguing this motion. Some refused questions were either later answered or the questions were withdrawn.
[5] I have found that, particularly in regard to the discovery of the representative of the HRCA, lines of questioning were shut down by objections of irrelevance or a simple refusal to answer that prevented counsel for the Plaintiff from developing his line of questioning. That should not recur in the further attendance that is ordered below.
[6] The scope of proper discovery applicable to this motion, is set out at is set out in r. 31.06(1) and (2), which state:
SCOPE OF EXAMINATION
General
31.06 (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 or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,
(a) the information sought is evidence;
(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or
(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.
Identity of Persons Having Knowledge
(2) A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.
[7] The key issue in determining whether a question asked at discovery should be answered is relevance. In Romspen Investment Corp. v. Woods Property Development Inc., 2010 ONSC 30005(SCJ Master), Master Haberman summarized the test of relevance as follows at para. 11: “if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met – the question asked is relevant.” The starting point to the determination of relevance is the pleadings: Tanner v. McIlveen Estate,2009OJ No. 1648(SCJ) at para. 9.
[8] The Plaintiffs assert that they have pleaded something in their statement of claim regarding liability that makes each of the refused questions relevant.
[9] I set out below the refusal charts prepared by the Plaintiff, setting out the questions which elicited refusals, the basis given on the record for the refusal and my ruling or the concession by the relevant party. I have removed the reference to the paragraph of the statement of claim relied upon by the Plaintiffs.
Refusals by HRCA
Refusals to Answer Questions on the Examination of the Defendant, Trevor Scott Peck for Hamilton Regional Conservation Authority, dated November 11, 2019
Quest-ion
No.
Page
No.
Specific Question
Answer or Precise Basis for Refusal
Disposition by the Court
47
16
Q. Okay. And this is another picture of the top of those concrete steps and the sidewalk. This is Exhibit 17. Is that what it looks like to you?
A: It looks like the top of a staircase, yes.
Q. Is this the same staircase we’ve been looking at in all these other Exhibits?
Ms. Jackson: I don’t think that’s a fair question. How could he know that that’s the same staircase? I can’t tell it’s the same staircase.
This question was answered by counsel for HRCA in his letter of May 26, 2020. However the line of questioning regarding those stairs was foreclosed by counsel’s objection. The representative of the HRCA should answer all questions arising out that question and all relevant subsequent questions regarding that staircase.
95-96
28
Q. This is a document that was created by the City of Hamilton as far as you understand?
A: That’s my understanding, yes.
Q: And they’re acknowledging that they’re having issues with respect to safety regarding the informal trials in the Albion Falls area?
Ms. Jackson: Well I think the document speaks for itself. This gentleman doesn’t work for the City of Hamilton, so for you to ask him what is in the mind of the intent of the City of Hamilton in relation to this document, I just don’t think that that’s a fair question for him. That’s a fair question for the City of Hamilton, but not for him. The document speaks for itself.
This line of questioning was foreclosed by the objection. The Plaintiff is entitled to ask whether HRCA was aware of any safety issues regarding Albion Falls prior to the accident.
218
63
Q. Are safety concerns heightened when drawing tourists in from other areas when those tourists might not be familiar with local safety issues?
Ms. Jackson: I don’t know that’s a fair question for this witness. Are you taking about Hamilton conservation areas or are you talking about lands owned by the City, being Albion Falls?
Mr. Furlong: I’m only talking about the lands that I’ve identified in Exhibit 2 of this gentleman’s discovery, and Exhibit 16 and 19 of Mr. Propedo’s discovery. And Exhibit 20 shows the same aerial photograph.
Ms. Jackson: This question is refused
This is a proper question and shall be answered.
225
66
Q. Okay. And I have a larger one here if it’s easier to see. So when you review this, this overhead drawing, what do you understand it to be; what’s it telling me, what’s the author of this document trying to suggest?
Ms. Jackson: I don’t think that’s a proper question for this witness. He can’t guess. This is a City of Hamilton document, so you ought to put the question about what the intention of this and what the City of Hamilton was trying to convey to a City of Hamilton representative. This is the first time ---
Mr. Furlong: I completely disagree with you.
Ms. Jackson: Okay this is the –
Mr. Furlong: This gentleman is free to say he doesn’t’ know. I think he probably has something –
Ms. Jackson: The question is refused.
Mr. Furlong: Okay.
Ms. Jackson: It’s not a fair question for this witness. It’s not appropriate for this witness.
This is a proper question and shall be answered. HRCA participated in the preparation of the document.
229
68
Q. Okay. Is this one of the City of Hamilton’s consultants suggesting to them that they ought to put safety railings in this area?
Ms. Jackson: Don’t answer that.
This is a proper question and shall be answered. It is not simply speculative as asserted by HRCA. The witness is being asked on behalf of the HRCA about the report’s apparent suggestion regarding safety railings. The objection forecloses a relevant line of questioning.
233
68-69
Q. And do you believe this is a document which the City of Hamilton has received from one of its consultants recommending that they put interpretive signage in the area depicted int his photo?
Ms. Jackson: Don’t answer that.
While the witness cannot say whether Hamilton received the document, he can say whether the document recommended the addition of signage in the area. Plaintiffs’ counsel can ask about any HRCA response to this document.
235
69
Q. Okay. And do you believe that this is a recommendation from the City of Hamilton’s consultant to upgrade the trail access because of safety concerns?
Ms. Jackson: Don’t answer that.
This question was answered.
70
Q. Okay. Do you know if it was ever brought before City Council in any way?
A. I don’t work for the City of Hamilton, so I have no idea.
Q. Okay. Well I would think if it was, that someone from the Conservation Authority would come too?
Ms. Jackson: Don’t answer that.
This question is not relevant.
245
72
Q. Okay. Looking at this overhead aerial photo, are you able to circle where you believe roughly the stairs would be in this picture, the concrete stairs we saw in the police photos?
Ms. Jackson: It’s not an appropriate question for this witness. It’s not his document, it’s not his photograph, he’s never seen it before. You want to circle the stairs, you circle the stairs, you’re not getting it in through this witness. Why don’t you circle where you think they are. It’s not for this witness to circle the stairs.
This question was answered.
246
74
Q,. Can you identify for us where Albion, the falls are in this photo themselves?
Ms. Jackson: It’s refused.
Mr. Furlong: Okay.
Ms. Jackson: I’m not really sure why you would want the witness to identify –
Mr. Furlong: Can –
Ms. Jackson: -- it, Mr. Furlong because there is a red arrow that says No. 48, Albion Falls pointing at an area on the picture. So I’m not really sure why it would be relevant for this witness to then circle where he thinks they are when the document speaks for itself.
Mr. Furlong: Because I am here to get his knowledge and belief and understanding.
Ms. Jackson: This is –
Mr. Furlong: Not yours, not the city’s, this gentlemans –
Ms. Jackson: All right.
Mr. Furlong – okay.
Ms. Jackson: And so he has no knowledge of this document as he’s already told you.
Mr. Furlong: Okay, so you say.
This question was answered.
262
80
Q. Okay. And then so when you’re involved in something like this Phase 2, Upgrades and Enhancements, how does the City and the Conservation Authority discuss priorities when the priorities are different?
Ms. Jackson: Don’t answer that.
The Deponent: Okay.
Mr. Furlong: That’s a refusal?
Ms. Jackson: Yes, it’s a refusal.
This is a broad question. It is a proper one only in regard to the HRCA’s response to the priorities set out in the report.
271
85
Q. Okay. This discusses a meeting that was going to take place in the area. Did you have any direct involvement in this meeting?
Ms. Jackson: Don’t answer that.
Mr. Furlong: Well why not?
Ms. Jackson: You don’t even know if there was a meeting. It’s a Hamilton Spectator article.
Mr. Furlong: So.
Ms. Jackson: By a reporter that says “…a city counselor is calling for a meeting with city and Conservation Authority staff…” And I’ve already told you this is not something I’m going to have the witness opine about.
This question was answered.
REFUSALS BY HAMILTON
Refusals to Answer Questions on the Examination of Tennessee Propedo, dated July 11, 2017
Question
No.
Page
No.
Specific Question
Answer or Precise Basis for Refusal
Disposition by the Court
258
63/64
Q. I would like an undertaking to advise of all safety changes made to the area in the police photos after Imran’s fall and any documentation that speaks to safety concerns and changes made as a result.
Mr. Boghosian: We’ve produced all documents that exist, and my understanding from Mr. Propedo is that there were no safety changes made after Imran’s fall. Signs were reposted that had previously been there. The problem with the bottom step was identified with the staircase repaired and the trails reopened, and that was the extent of any changes after Imran’s fall.
Mr. Furlong: To the extent that abutting the concrete steps to the south of the concrete steps there’s a 6-foot chain link fence going in, I would like production.
Mr. Boghosian: You’ve already asked for that, and that’s many, many, years later. It had nothing to do with Imran’s fall.
Mr. Furlong: What had nothing to do with Imran’s fall?
Mr. Boghosian: The chain link fence that you keep referring to that was put in years and years later.
Mr. Furlong: Why was it going in then? Mr. Boghosian: Do you think its because of Imran’s fall?
Mr. Furlong: I’m just asking you because you seem to know the answer.
Mr. Boghosian: It’s a post accident change. I’m not going to answer that question. It’s irrelevant.
This question has been answered. If the Plaintiff has not received or has misplaced the production that Hamilton says accompanied the answer, Hamilton will replace it at the Plaintiff’s expense.
324
84
Q. We’re still on incident report at tab 24. This one doesn’t have the names and the contact information for the two people that were rescued. Can I please have an undertaking for their names and last known contact information?
Mr. Boghosian: I’ll take it under advisement.
This is an appropriate question under r. 31.06(2). Hamilton shall answer it.
327
85
Q. I would like the undertaking for the name and last known contact information of the person or people that were rescued by the fire department in relation to this July 13, 2013 incident?
Mr. Boghosian: The same response as the previous.
This is an appropriate question under r. 31.06(2). Hamilton shall answer it.
339
88
Q. And again, counsel, can I have the last known contact information for the gentleman that was rescued on August 22, 2013?
Mr. Boghosian: Again under advisement. How is it relevant, counsel? We know this person didn’t fall. They got stuck trying to climb up the side of the escarpment on completely the other side from where your client fell. There doesn’t seem to be any nexus.
Mr. Furlong: People falling in Albion Falls –
Mr. Boghosian: He didn’t fall. This person didn’t fall.
Mr. Furlong: People being rescued in fairness to me –
Mr. Boghosian: No injuries.
Mr. Furlong: You know, if I ask for a document, you’re free to refuse it. You can state the basis for the refusal.
Mr. Boghosian: the relevance if someone is climbing up and becomes frightened that they can’t go any further up and calls the fire department to be taken out that has nothing to do with your clients injuries.
Mr. Furlong: Well clearly we look at it very, very, differently. These are rope rescues in and around the area where Imran fell, but lets not belabor the point.
Withdrawn.
349
90-91
Q. And would you be able to mark with a lower case A where this fence you repaired was? Thank you. And again, counsel, I’m going to ask about a few more tabs here a few more incident reports and the undertaking that I’ve asked for and the under advisement or refusal you’ve given have been name and contact information for the person rescued, and as well I would ask for any other Hamilton Fire Department records with respect to these rope rescues by the fire department, so instead of saying it over and over again, I’ll just take that as a blanket refusal.
Mr. Boghosian: Yes.
This question is relevant. It responds to an issue regarding prior awareness of danger from previous rescues. It shall be answered.
363
94
Q. Yes, I mean, I think he fell 30 feet. I do – I am still seeking a name and further information and contact information to the extent the City has that in it its possession.
Mr. Boghosian: Well, you’ve already gotten my under advisement.
The answer to this question is subsumed into the answer to the previous one.
378
97
Q. Counsel, I would like an undertaking to provide Hamilton Fire Department incident reports relating to falls and personal injuries at Albion Falls on a go-forward basis.
Mr. Boghosian: No. You’ve got plenty – you’ve got ample material more than I think I’m legally required to produce.
Hamilton has already produced reports from three years prior to the accident and two years subsequent to it. A fence was placed in the general vicinity of the accident although there is a genuine dispute about whether the placement of the fence was related to the accident. Nonetheless, Hamilton will produce all Hamilton Fire Department incident reports relating to falls and personal injuries at Albion Falls from the time of the accident to the time of the erection of the fence that have not already been produced.
378
98
Q. That’s one undertaking refused. I’m just going to refine it. I maintain that undertaking, but my second undertaking will be to provide Hamilton Fire Department incident reports relating to falls and/or personal injuries in the area depicted in the police photos at tab 5 of your affidavit of documents.
Mr. Boghosian So that’s purported to be more limited?
Mr. Furlong: Exactly. Falls and personal injuries going forward. You have produced it up to a certain date, and I thank you for that. For instance, I was watching the news a few weeks ago, and I happened to glance up and see someone fell at Albion Falls.
So what I would like to do is I would like to get incident reports on a go-forward basis for the area depicted in the police photos at tab 5 of your Affidavit of Documents
Mr. Boghosian: I’m going to refuse that as well.
This undertaking is the same as the previous one. I make no further order in regard to it.
424
109
Q. And then turning over to page 3, I don’t know if it’s a different study than the one you’ve refused, but it indicates “As part of the Hamilton Conservation Authority approval process, an environmental impact study was conducted in the spring of 2004, field studies conducted in March and May of 2004. I would like those documents as well.
Mr. Boghosian: I’m not going to produce them. They have to do with cutting down the trees to build the deck.
Refusal partially waived on April 26, 2018, defence delivered an Environmental Impact Study dated June 2004.
This question is not relevant and need not be answered. It relates to the cutting of trees to build a deck not safety concerns.
430
111
Q. In your time as parks manager did you ever do any maintenance to the trails or have –
MR. BOGHOSIAN: The trails? Where are the trails?
Q. The trails in conservation areas within the City of Hamilton.
Mr. Boghosian: No don’t answer the question. That’s too broad.
Withdrawn.
462
121
Q. Claudio Mostacci – I hope that I’m saying that right – he was the public information officer for Hamilton Fire Department? Is he still?
A. No Claudio is retired.
Q. Can I have his last known contact information?
Mr. Boghosian: I don’t know how he could possibly have any relevant thing to say. He’s just a spokesperson for the fire department, so I’m going to refuse that.
Claudio Mostacci was present at meetings where high rope rescues were discussed. His evidence is relevant. His contact information is properly available under r. 31.06(2).
462
121/122
I accept your refusal. I would also like copies of all statements released by the Public Information Officer Mostacci relating to the falls and personal injuries at Albion Falls –
MR. BOGHOSIAN: No.
Mr. Furlong: For the five years before the accident to present.
Mr, Boghosian: No. It’s redundant. You’re already asking for all the incident reports.
Mr. Furlong: this is for like press releases and statements that he provides.
Mr. Boghosian: That’s fine.
Mr. Furlong: And that’s refused?
Mr. Boghosian: Yes.
These reports are not relevant and likely publicly available if the Plaintiff wishes to see them.
466
124
Q. Is there a risk management plan for Albion Falls
Mr. Boghosian: Don’t answer the question.
Mr. Furlong: And what’s the basis for the refusal?
Mr. Boghosian: I’m not going to give one in the interests of time.
This question is relevant in regard to whether a there a risk management plan for Albion Falls existed at the time of the accident and should be answered in that regard. If one exists it shall be produced.
467
124
Q. Is there a risk management plan for Mountain Brow Side Trial?
Mr. Boghosian: Don’t answer that.
Withdrawn.
479
131
Q. Can I have an undertaking for the City of Hamilton documents in relation to this incident of July 2015?
Mr. Boghosian: “how do you know there was an incident in July 2015? Just because somebody writes something on the internet, that makes it true?
Mr. Furlong: Is that a refusal?
Mr. Boghosian: Yes, it is.
Withdrawn.
484
132-133
Will you undertake to let me know if a little boy fell on July 25, 2015 anywhere in the area depicted in the police photographs at Tab 5 of the City’s AOD?... If a little boy fell in the area depicted in the police photographs at Tab 5 of the City’s AOD I would like all the City’s records with respect to that fall
Mr. Boghosian: No I will not.
Mr. Furlong And if a little boy fell in the area depicted in the police photographs at tab 5 of your Affidavit of Documents, I would like the City of Hamilton documentation in relation to that fall.
Mr. Boghosian: Do you have the entire thing because maybe you're misinterpreting it? You haven't produced -- have you produced the entire blurb from this person? Because it doesn't sound like they fell over the edge. It sounds like they fell on the trail.
Mr. Furlong: Well, I would like to know if somebody fell on July 25, 2015.
Mr. Boghosian: I already refused that.
Mr. Furlong: In the area depicted in the police photos.
Mr. Boghosian: That’s already been refused.
Mr. Furlong: I understand I just want to be clear. If a little boy did fall on July 25, 2015, in the area depicted in the police photos, I would like the City’s records with respect to that fall.
Mr. Boghosian: All refused,
Withdrawn.
a.
491
134
Q. And Bob Smith is a fire information officer?
A: No Bob Simpson
Q. Simpson, sorry. Did you speak to him about this incident?
A. No I did not.
Q. And he’s an employee of Hamilton Fire?
A. Yes, he was. He’s retired now.
Q. He’s retired now? Can I get his last known contact information, counsel?
(re: Bob Simpson, retired Hamilton Fire Department employee)
Mr. Boghosian: I don’t see the relevance counsel, it doesn’t even have to do with a fall. It has to do with –
The Deponent: He got stuck it was a rescue.
Mr. Boghosian: Somebody got stuck, A totally different circumstance, so no.
This evidence is relevant and the witness’ contact information is properly available under r. 31.06(2).
[10] In light of the terms of my order above, the parties agree that it is appropriate that the representatives of HRCA and Hamilton reattend to answer any proper questions arising from the answers to the questions that I have deemed proper. If the representative is not available because of retirement, another representative holding the equivalent rank as the previous witness shall be produced in his stead.
[11] It is premature to order any party to produce a further and better affidavit of documents at this time as new ones are in the process of being prepared. No party before me today objects to the production of further and better affidavits of documents within 30 days of this matter being set down for trial. This term of my order only applies to the three parties before me but makes sense for the other defendants as well.
[12] Success in this motion was divided. For oral reasons given, I grant the Plaintiffs’ costs of $2,000 against HRCA and $1,000 against Hamilton, all inclusive of the costs of reattendance.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz,
Original will be placed in court file
Date: April 6, 2021