MOTION HEARD: 20210409
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bruce Kruger, Plaintiff
AND:
Queen Elizabeth Hotel GP Inc., Defendant
BEFORE: Master B. McAfee
COUNSEL: S. Patel, Counsel for the Moving Party, the Plaintiff
R. Antoniuk, Counsel for the Responding Party, the Defendant
HEARD: April 9, 2021
REASONS FOR DECISION
1This is a motion brought by the plaintiff Bruce Kruger (the plaintiff) for various relief arising from the examination for discovery of a representative of the defendant Queen Elizabeth Hotel GP Inc. (the defendant).
2At the time of the hearing of the motion, the following matters remained at issue:
(i) Refusals at questions 469, 548, and 559;
(ii) Whether the defendant should re-attend on an examination for discovery and, if so, the scope and manner of any such re-attendance; and
(iii) Costs.
3This action arises as a result of a slip and fall that occurred on September 4, 2017. The plaintiff alleges to have sustained serious injury after slipping on water and/or other debris on the floor located inside a change room of the health club at the defendant’s premises.
4The statement of claim was issued on March 26, 2018.
5The statement of defence was served on or about January 18, 2019.
6The statement of claim was amended on August 16, 2019.
7The examination for discovery of a representative of the defendant took place on September 27, 2019.
(i) Refusals
8In determining the propriety of the refusals at issue, I have applied the general principles concerning the scope of examination at rule 31.06 of the Rules of Civil Procedure, the principles of proportionality set out at rule 29.2.03 and rule 1.04(1.1), the general principle set out at rule 1.04(1), considered the scope of discovery as summarized by Justice Perell in Ontario v. Rothmans Inc., [2011] ONSC 2505 (Ont. S.C.J.) at para. 129, and considered the various other cases before me on this motion.
9What follows are my rulings.
Question 469
10This question seeks communications regarding anti-slip material after the date of the slip and fall. On the motion, plaintiff’s counsel confirmed that to answer this question, he is requesting a search of emails only, and confirmed that the defendant need only produce relevant emails.
11In Algoma Central Railway v. Herb Fraser & Associates Ltd., 1988 CarswellOnt 535 (Ont. Div.Ct.) at paras. 18-25 the court held that questions concerning remedial measures are proper, at least for the purposes of examinations for discovery. Matters of admissibility and weight ought to be left for the determination of the trial Judge.
12In Simmons v. Thunder Bay (City), 2017 ONSC 16273 (Ont. S.C.J.) at paras. 20-21, Justice D.C. Shaw states:
20 In the instant case, I am satisfied that at discovery it is a relevant line of inquiry to ask whether the City brought in policies and procedures for street lighting after the event of August 8, 2012. As the cases noted above hold, if there were such policies and procedures they could provide evidence of reasonable care, reasonable standards, prior knowledge or the feasibility of taking precautionary steps.
21 The proposed questions are not in the nature of a fishing expedition. The plaintiffs have pleaded that the City failed to adequately illuminate the sidewalk, that it failed to inspect the sidewalk lighting to ensure that it was sufficient and in good working order and that it failed to have appropriate procedures to properly inspect, maintain and enforce the proper condition of the sidewalk. The lighting of the sidewalk and procedures pertaining thereto have been put in issue by the pleadings. The proposed questions are relevant to those matters in issue.
13The communications at issue following the slip and fall and regarding the anti-slip material are relevant based on the pleadings and in particular based on paragraph 5(d) of the amended statement of claim. At paragraph 5(d), the plaintiff pleads that the defendant “…failed to install proper non-slip flooring in an area where they knew or ought to have known that water and/or other debris would accumulate.”
14I am satisfied that the request, as limited by the plaintiff, is not overly broad or disproportionate. The search is of post-accident emails limited to anti-slip material.
15The question, as limited on the motion, is relevant and proper and shall be answered.
Question 548
16The question asks if there has been a policy of inspection implemented since the date of the slip and fall. The defendant has provided the policy of inspection in place at the time of the slip and fall and takes the position that any policy following the date of the slip and fall is not relevant.
17I am satisfied that the question is relevant based on the pleadings and in particular based on paragraph 5(n) of the amended statement of claim. At paragraph 5(n) of the amended statement of claim the plaintiff pleads that the defendant “…failed to implement or to consider the need to implement a system or procedure for ensuring proper maintenance and/or inspection of the area where the casualty occurred.”
18Based on the principles in Algoma and Simmons, I am satisfied that the question is relevant and proper on an examination for discovery. The question shall be answered.
Question 559
19The question seeks production of documents between the defendant and certain others with respect to the anti-slip tiles. On the motion, plaintiff’s counsel confirmed that to answer this question, he is requesting a search of emails only, for the words “Jaspa Loop” only. Jaspa Loop is an anti-slip tile. Plaintiff’s counsel confirmed that the search is for the period of time between the renovation and the date of loss, and that the defendant need only produce relevant emails.
20I am satisfied that this question is relevant based on the pleadings and in particular based on paragraphs 5(d) and (p) of the amended statement of claim. Paragraph 5(d) is set out above. Paragraph 5(p) pleads that the defendants “…caused and/or permitted the area where the casualty occurred to be, to become or to remain a danger and a trap to their patrons, including [the plaintiff].”
21I am also satisfied that the question, as limited by the plaintiff, is not overly broad or disproportionate. The search is of emails, for specific words, for a limited period of time.
22The question, as limited by the plaintiff, is relevant and proper and shall be answered.
(ii) Re-Attendance
23The plaintiff seeks a virtual re-attendance not exceeding 2 hours in length.
24The defendants oppose any re-attendance. If a re-attendance is ordered, the defendants request that the re-attendance take place in writing.
25In Senechal v. Muskoka (District Municipality), 2005 CanLII 11575 (ON SC), 2005 CarswellOnt 1414 (Ont. S.C.J.), Master MacLeod, as he then was, states as follows at para. 5:
[5] The question of examining “more than once” is in practice a question of whether the examination was actually completed. Improper refusals are an interruption of the discovery while undertakings are an acknowledgment that the question is a proper one and a promise to obtain and provide the answer. Generally speaking, had the discovery not been interrupted by the refusal or the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer that genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question has been answered. …
26To date, the defendant has been examined for less than 3 hours.
27Approximately 54 undertakings were given at the defendant’s examination for discovery.
28There is no absolute right to a re-attendance. However, having regard to the nature and volume of the undertakings, together with the refusals now answered or ordered to be answered, I am satisfied that in the circumstances of this case a re-attendance on examination for discovery will serve a useful purpose and is necessary in order to fulfill the purposes of discovery.
29Although the defendant requests that any re-attendance be in writing, in my view, given the nature and volume of the undertakings and refusals, the plaintiff is entitled to complete his examination of the defendant orally and virtually.
30The defendant shall re-attend on an oral and virtual examination for discovery, on a date to be agreed upon, for up to 2 hours in length to answer relevant and proper questions arising from the answers to undertakings and answers to questions refused that have been answered by agreement or have been ordered to be answered.
(iii) Costs
31If successful, the plaintiff sought costs of the motion in the all-inclusive sum of $4,792.00. If successful, the defendant sought costs of the motion in the all-inclusive sum of $1,632.00.
32Although the plaintiff was successful on the refusals, for two of the refusals the plaintiff clarified the searches requested and limited the scope from the original question asked. The plaintiff was successful on the issue of re-attendance. However, this is not a situation where the defendant had not answered undertakings or reconsidered its position on certain refusals. All undertakings had been answered at the time of the hearing and only approximately 2 of 54 undertakings were outstanding at the time the motion was served.
33In my view the plaintiff is entitled to some costs of the motion but not costs in the amount sought. Having regard to all of the circumstances of this motion, a fair and reasonable amount that the defendant could expect to pay for costs is the all-inclusive sum of $2,000.00 payable by the defendant to the plaintiff in the cause.
34Order to go as follows:
The defendant shall answer the refusals at questions 469 and 559, both as limited by the plaintiff on the motion, and the refusal at question 548.
The defendant shall re-attend on an oral and virtual examination for discovery, on a date to be agreed upon, for up to 2 hours in length to answer relevant and proper questions arising from the answers to undertakings and answers to questions refused that have been agreed to be answered or have been ordered to be answered; and
Costs of the motion are fixed in the all-inclusive sum of $2,000.00 payable by the defendant to the plaintiff in the cause.
Master B. McAfee
Date: April 26, 2021