COURT FILE NO.: CV-18-0081-00
DATE: 2021-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TAMMY PARENT, DAVID HOLE, MARY ANN LANE and JACK LANE
Mr. D. Lester, for the Plaintiffs
Plaintiffs
- and -
THE CORPORATION OF THE CITY OF THUNDER BAY
Mr. E. Prpic, for the Defendants
Defendants
HEARD: January 12, 2021, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Reasons On Motion
OVERVIEW:
[1] The Plaintiff, Tammy Parent (“Tammy”) commenced this action against the Defendant for damages arising out of a slip and fall. Tammy claims that she sustained a fractured right ankle and an injury to her kneecap when she fell. She claims that her ability to work, participate in her usual activities (recreational, social and leisure), and her ability to perform her usual household duties are significantly impacted.
[2] The Defendant alleges that Tammy was already compromised in these areas by a litany of health problems that are unrelated to and, pre-existed the accident. It is alleged that Tammy suffers from chronic low back pain that has, and will continue in the future to affect her ability to enjoy her life and participate in the workforce regardless of the accident. She also previously had right ankle reconstructive surgery years prior to the accident.
[3] On this motion, the Defendant seeks production of the following:
a. Tammy’s complete chart from the Thunder Bay Regional Health Sciences Centre (TBRHSC) from 2003 to the date of the accident (December 11, 2016), including all diagnostic scans;
b. Production of Tammy’s complete pre-accident chart from her chiropractor, Dr. Klymenko;
c. Production of Tammy’s complete pre-accident chart from orthopedic specialist, Dr. Remus; and
d. Production of Tammy’s pre-accident employment file with Little Caesar’s Pizza.
[4] The Defendant takes the position that the information requested is relevant to the issue of the impact of Tammy’s pre-existing back condition, and it is necessary in order to allow a defence medical expert to properly assess her condition. The Defendant argues that it is impossible for its medical expert to properly assess the impact of the lower back condition without the information sought.
[5] Tammy has produced her complete pre-accident medical records from her family physician for three years prior, and from TBRHSC for the two years prior to the accident. Post-accident records have also been produced. She has also produced her chiropractor records from August 2016 and physiotherapy records. She argues that these are sufficient to assess her position both prior to, and around the time of the fall. She further argues that she has not claimed any damages related to her back; she only alleges impairments to her right foot, right ankle and left knee arising out of the fall. She resists production of the additional records sought by the Defendant on the basis that the request is overly broad, and risks capturing private medical and employment information that has no bearing on the issues between the parties.
[6] The issue is, what temporal or other limits should be placed on the Defendant’s request for production.
BACKGROUND:
[7] On December 11, 2016, Tammy slipped and fell from an unmarked ledge in the bleachers of a hockey arena owned and operated by the Defendant.
[8] On February 23, 2018, the Plaintiffs commenced this action, alleging negligence on the part of the Defendant. It is alleged that Tammy sustained fractures and impairments to her right foot, right ankle and left knee as a result of the fall. These are the only injuries for which damages are claimed. Total damages, for all plaintiffs, are claimed in the amount of $1.7 million, plus interest and costs.
[9] It is alleged in the Statement of Claim that the injuries sustained in the accident will affect Tammy’s ability to participate in her usual recreational, social, and leisure activities that she enjoyed prior to the fall. It is further alleged that the injuries will affect her ability to work, perform her housekeeping duties, and to perform home maintenance tasks.
[10] In the Statement of Defence, the Defendant alleges that Tammy’s original position, prior to the fall, was such that her ability to engage in recreational, social and leisure activities, her ability to work and to perform her usual housekeeping and home maintenance tasks, would have been compromised in any event given her chronic low back pain and other health ailments experienced prior to her fall.
[11] In response to requests from the Defendant, the Plaintiffs have produced Tammy’s hospital records from December 2014 to January 12, 2017 (2 years).
[12] The hospital records in the two years prior to the fall reveal that Tammy attended the hospital in November of 2016 complaining of chronic back pain. She was unable to sit or lie down without pain, despite taking medication. She was discharged with further pain medication.
[13] Tammy’s family doctor records have been produced for the period of December 2013 to December 2016 (3 years). They reveal the following:
a. Two reports of back pain; one in the fall of 2016, and one later that year. On both occasions she reported having taken time off work due to the pain.
b. A prior diagnosis of chronic disc prolapse, which had improved somewhat since its initial onset. In addition to pain in her back, symptoms included numbness in the right and left foot. It was noted that Tammy was seeing a chiropractor twice a week for the condition and using Percocet to help manage the pain.
c. Three occasions during which there were issues of numbness and soreness in the feet, as well as chronic swelling of the right ankle. The chronic ankle swelling had been ongoing since surgery on the ankle at age 17 years.
d. Tammy suffers from various chronic conditions such as diabetes, plantar fasciitis and hypertension.
[14] Tammy has also produced her chiropractor records commencing August 2016. These records indicate that in August 2016 (3 ½ months prior to the fall), she was complaining of low back pain, leg pain, feet tingling or numb, leg spasms, migraines, and arthritis in hands, feet and back. In a form completed by Tammy of her medical history, in addition to the foregoing she also noted walking problems and swollen ankles, in addition to having suffered from other conditions such as diabetes and cancer.
[15] The chiropractor records also contain diagnostic imaging reports from MRI’s that took place in March 2003 and September 2011, in addition to a report of a neurosurgeon in 2003. The 2011 MRI was ordered by Dr. Remus, an orthopedic surgeon.
[16] In addition to the foregoing, physiotherapy records dated September 2015, report chronic extreme back pain, foot pain, and shoulder pain that has been ongoing for the past 10 years.
[17] In the Examination for Discovery of Tammy, it was discovered that she initially hurt her back while at work in 2001. Her evidence was that since then, all she had to do was move the wrong way to put her back out and cause her pain to go from “0 to 10 in thirty seconds”. Tammy acknowledged that her symptoms have been consistently experienced during flare ups since the time of her diagnosis of disc prolapse in 2003.
[18] Tammy is employed as an assistant manager with Little Caesar’s Pizza. Prior to the accident she worked 38 hours a week. She now works 28 hours a week. Her position is that her work was unaffected by any conditions other than those arising out of the accident, as is evidenced by her employment history in the three years prior to her fall and since.
ANALYSIS:
Relevance:
[19] A party has an obligation to disclose every document within the possession, control or power of that party, that is relevant to any matter in issue in the action: Rules of Civil Procedure, R.R.O., Reg. 194, r. 30.02. The issue in this case is relevance of the requested documents.
[20] The onus is on the Defendant to demonstrate the relevance of pre-accident medical records: Kulpinski v. Toronto Transit Commission, [2000] O.J. No. 744, 94 ACWS (3d) 29 at para. 34.
[21] For a document to be relevant, it must relate to a matter, or fact in issue in the action. The starting point to determine what is in issue, is the pleadings.
[22] The Statement of Claim alleges damages flowing from Tammy’s injuries sustained during the fall. The alleged impact on Tammy’s life is significant, as are the damages. I agree with the Defendant that implicit within those allegations is the suggestion that absent the accident, those losses of the ability to work and to social, recreational and household activities, would not have otherwise occurred.
[23] The Statement of Defence alleges pre-existing conditions that have impacted on those damages. The allegations in the Statement of Defence are not generic or designed to allow for a fishing expedition. The medical records demonstrate a chronic low back condition that has had sufficient impact on Tammy for her to seek medical attention on various occasions. The records also reveal a chronic pre-existing condition related to the same ankle for which Tammy seeks damages.
[24] The Defendant argues that the medical evidence prior to the accident clearly establishes that Tammy’s chronic low back pain was affecting her ability to work and function, which is supportive of the Defendant’s allegation that her pre-existing back condition would have continued to affect her ability to work into the future, even if the accident had not happened. The impact, if any, of her chronic ankle condition is unknown, but there is some indication in the records that have been disclosed to date, that this could be relevant to the damages claim.
[25] It is a basic principle of tort law that a tortfeasor is only required to place a plaintiff in the position she would have been in absent the alleged negligence. This requires an assessment of a plaintiff’s original position and their injured position. The question in this case is whether Tammy’s original position was likely to also impact on her in the future? In other words, the purpose of the production in this case is not simply to determine the level of functioning at the fall, but the impact on her in the future. A pre-existing condition that impacts the areas of Tammy’s life she claims the accident has also impacted, may be relevant to the court’s assessment of damages.
[26] Having said this, it does not necessarily render Tammy’s entire medical history over a 13-year period, relevant. Particularly with respect to the family physician file and hospital records, there are likely a number of documents that are irrelevant to a determination of the issues in this proceeding.
[27] I do agree with the Defendant that the records pertaining to the chronic back, ankle and foot issues experienced by Tammy, along with any related reports of leg pain, are relevant. These are conditions that have been experienced by Tammy on an ongoing basis for a number of years and appear to have impacted her daily life and occasionally, her ability to work. These are conditions that tend to ebb and flow, and for which a snapshot in the three years prior to the fall and after, may not reveal the complete picture. While there is no evidence from the defence medical expert, I agree with the Defendant that it makes sense that it is important to the issue of damages for its medical expert to have a complete picture.
[28] On the other hand, there is nothing in the evidence to suggest that pre-accident records, prior to December 2013, with respect to regular health conditions such as diabetes and hypertension, or other conditions, are relevant. The medical records that have been disclosed suggest that these are conditions that are being monitored, with medications adjusted as needed. On this point, evidence from the defence expert as to the necessity of pre-accident records prior to December 2013 could have been useful.
[29] The Defendant argues that the Plaintiffs have already disclosed Tammy’s complete medical files for the period immediately before and after the fall. Parties only have an obligation to disclose relevant documents, and therefore it is implicit in this disclosure without redaction, that her complete medical files are relevant. I disagree. The complete medical file in the period immediately prior and post-injury may be relevant to an assessment of a plaintiff’s original position vs. their post-injury position, and to assist in a determination of future impact, whereas historical medical records are not necessarily, unless the Defendant demonstrates otherwise.
[30] Taking into consideration the foregoing, I find that:
a. Tammy’s hospital records from the TBRHSC, including various diagnostic scans for the period from January 1, 2003 up to and including December 14, 2014, related to any back, ankle, leg and foot issues are relevant.
b. Tammy’s pre-accident records (clinical notes and records) from Dr. Klymenko (her chiropractor) and Dr. Remus (orthopedic specialist) from 2001 onwards related to any back, ankle, leg and foot issues are relevant. The records of Dr. Klymenko suggest that he may not have been her chiropractor until 2016, so there may be nothing left to disclose in this regard.
c. That portion of Tammy’s employment file with Little Caesar’s Pizza pertaining to work absences due to illness related to any back, ankle, leg and foot issues from 2001 (or the commencement of her employment if later than 2001) onwards are relevant. The Defendant has acknowledged that the balance of the employment file is not likely to be relevant.
What relevant documents should be disclosed?
[31] A determination of relevance is not the end of the inquiry. There are limits on the production of documents, even relevant ones.
[32] Rule 29.2.03 of the Rules of Civil Procedure requires a consideration of the following factors in determining whether a party is required to produce a relevant document:
a. the time required to produce the document;
b. the expense associated with producing the document;
c. any prejudice the party may suffer in having to produce the document;
d. possible undue interference with the orderly progress of the action; and
e. whether the document is readily available to the party seeking production from another source.
[33] The principles provided for in Rule 1.04 are also to be considered. Rule 1.04(1) requires a liberal interpretation of the Rules of Civil Procedure in a manner that secures “the just, most expeditious and least expensive determination” on the merits. Rule 1.04(1.1) requires the Court to make orders that are “proportionate to the importance and complexity of the issues and the amount involved, in the proceeding.”
[34] Proportionality and relevance require production of that which is necessary to fairly adjudicate the case: Duggan v. Lakeridge, 2017 ONSC 1474, at para. 30.
[35] I find that production is warranted of all of the documents I have deemed relevant. With respect to the specific factors for consideration as outlined above:
a. The Plaintiffs argue that the hospital and physician’s offices will not redact documents. Even though the Defendant has indicated it will bear any cost charged by a third party for production, there will be time and expense associated with redaction. While I have no evidence as to the volume of the documents that Plaintiffs’ counsel will need to review and redact, given that this is a $1.7 million claim, I do not find that the time and expense associated with this task will either be onerous, or disproportionate to the value of the issues in dispute.
b. With respect to prejudice, given my findings with respect to relevance, the Plaintiffs’ privacy concerns with respect to Tammy’s entire medical or employment history being revealed for scrutiny, have been overcome.
c. It is acknowledged by the Plaintiffs that the documents are not otherwise available to the Defendant, and there was no concern raised with respect to interference with the progress of the action.
d. Given the findings I have made with respect to relevance, which have narrowed the scope of production, given the nature of the issues and the amount of the Plaintiffs’ claims, it cannot be said that production offends the principle of proportionality. In my view, all the relevant documents are arguably necessary for the Defendant to advance its defence, and for the Court to fairly adjudicate the issue of damages.
ORDER:
[36] In light of the foregoing, it is ordered that the Plaintiffs shall:
a. Produce Tammy’s hospital records from the TBRHSC, including various diagnostic scans for the period from January 1, 2003 up to and including December 14, 2014, related to any back, ankle, leg and foot issues.
b. Produce Tammy’s pre-accident records (clinical notes and records) from Dr. Klymenko (her chiropractor) and Dr. Remus (orthopedic specialist) from 2001 onwards related to any back, ankle, leg and foot issues.
c. Request from Little Caesar’s Pizza that portion of Tammy’s employment file pertaining to work absences due to illness and produce all portions of the file related to work absences due to any back, ankle, leg and foot issues from 2001 (or the date of commencement of employment if later than 2001) onwards. If any portion of the record does not specify the reason for an illness related absence, it shall be disclosed.
[37] The Defendant shall pay to the Plaintiffs any costs charged by the third parties for the requested disclosure.
[38] With respect to costs, if counsel cannot agree, submissions may be made in writing as follows:
a. The requesting party’s submissions within 30 days of the release of this decision, limited to 5 pages (excluding attachments), double spaced.
b. The responding party’s submissions within 15 days thereafter, limited to 5 pages (excluding attachments), double spaced.
c. Any reply, within 10 days thereafter, limited to 2 pages (excluding attachments), double spaced.
“original signed by”
The Hon. Madam Justice T. J. Nieckarz
Released: April 12, 2021
COURT FILE NO.: CV-18-0081-00
DATE: 2021-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TAMMY PARENT, DAVID HOLE, MARY ANN LANE and JACK LANE
Plaintiffs
- and –
THE CORPORATION OF THE CITY OF THUNDER BAY
Defendants
REASONS ON MOTION
Nieckarz J.
Released: April 12, 2021
/cjj