Court File and Parties

COURT FILE NO.: CV-05-CV293192 MOTION HEARD: 20210527 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kim Draskovic, Plaintiff AND: John Doe and Toronto Transit Commission, Defendants

BEFORE: Master B. McAfee

COUNSEL: S. Merredew, Counsel, for the Moving Party, the Defendant Toronto Transit Commission D. Hayward, Counsel, for the Responding Party, the Plaintiff

HEARD: May 27, 2021

Reasons for Decision

[1] This is a motion brought by the defendant Toronto Transit Commission (TTC) for various relief arising from the examination for discovery of the plaintiff Kim Draskovic (the plaintiff). At the time of the hearing of the motion, refusals and costs remained at issue.

[2] On July 21, 2003, the plaintiff alleges she fell as she was exiting the rear doors of a TTC bus due to uneven pavement sustaining serious and permanent physical and psychological injuries.

[3] On July 13, 2005, the plaintiff commenced the within action seeking damages in the amount of $950,000.00

[4] On or about September 29, 2005, the TTC served a statement of defence and jury notice. In its statement of defence, the TTC denies that the plaintiff was at the location of the fall on the date and time alleged, denies negligence, and denies that the plaintiff sustained the injuries and damages alleged.

[5] On or about December 6, 2007, the plaintiff discontinued the action against John Doe, the driver of the TTC bus.

[6] On April 12, 2006, the examination for discovery of the plaintiff commenced.

[7] On or about January 25, 2008, the plaintiff set the action down for trial.

[8] On February 7, 2017, the Registrar dismissed the action for delay.

[9] On December 18, 2017, following a contested motion, Master Jolley set aside the dismissal order.

[10] On September 27, 2018 and October 18, 2018, the examination for discovery of the plaintiff continued.

[11] The trial is currently scheduled for October 4, 2021, for 14 days. A pre-trial is currently scheduled for July 16, 2021.

[12] Pursuant to the order of Master Jolly dated December 18, 2017, the TTC was required to schedule any discovery motions on or before February 28, 2019. The TTC did not do so. The TTC first advised of its intention to bring this motion on or about December 10, 2019. This motion was scheduled in or about February 2021.

[13] It is the plaintiff’s position that the TTC’s failure to schedule this motion on or before February 28, 2019, is determinative, and the motion should be dismissed.

[14] As set out in the amended notice of motion, the TTC requested leave to bring this motion pursuant to Rule 48.04 of the Rules of Civil Procedure, if required. The plaintiff did not take the position that the TTC required leave pursuant to Rule 48.04. I agree with the plaintiff. The TTC did not set the action down for trial or consent to the action being placed on the trial list within the meaning of Rule 48.04. The TTC does not require leave to bring this motion pursuant to Rule 48.04.

[15] The TTC does, however, require an extension of the time to schedule this motion as ordered by Master Jolley. The amended notice of motion does not seek an extension of the time to schedule this motion.

[16] Timetables are enforceable (Oz Merchandising Inc. v. Canadian Professional Soccer League Inc., [2017] O.J. No. 996 (Ont. S.C.J.) at para. 15). However, in the circumstances of this case, I am prepared to grant the necessary extension of time notwithstanding that a formal request for an extension was not made.

[17] The parties, by their conduct, agreed to extend certain deadlines ordered by Master Jolley. Although plaintiff’s counsel requested earlier dates for the continued examination for discovery of the plaintiff, the examination took place on September 27, 2018, within the deadline ordered by Master Jolley. The examination was not completed on that date. The parties agreed to a further date of October 18, 2018. This date was past the deadline ordered by Master Jolley. This also resulted in undertakings not being answered by the plaintiff prior to the November 30, 2018 deadline ordered by Master Jolley.

[18] An explanation for part of the delay in scheduling this motion has been provided. I am not satisfied of any prejudice to the plaintiff in extending the deadline. I am prepared to grant an indulgence to the TTC and grant the necessary extension of time.

[19] What follows are my rulings on the refusals.

[20] Rule 31.06 of the Rules of Civil Procedure provides in part:

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… .

[21] On her examination for discovery held on October 18, 2018, the plaintiff refused to produce her Facebook account including the photos of the luncheon with the consultants and the photos of the Exhibition as asked at Question 1312 (Page 217, Line 25, Page 218, Lines 1-6).

[22] The plaintiff argues that the TTC has failed to provide the court with any evidence to demonstrate relevancy.

[23] In Isacov v. Schwatzberg, 2018 ONSC 5933 (Ont. S.C.J.) Master Short ordered production of photographs on the plaintiff’s Facebook and Instagram accounts. Master Short states at para. 36: “I am satisfied that in the present technological environment there is a need to include Facebook and similar online data relevant to matters in issue in personal injury litigation in the appropriate schedules of each party’s affidavit of documents.”

[24] In Isacov Master Short refers to the decision of Justice D.M. Brown in Leduc v. Roman, 2009 CanLII 6838 (ON SC), [2009] O.J. No. 681 (Ont. S.C.J.). Leduc is an appeal from a Master’s decision. The Master ordered the plaintiff to preserve his Facebook account and to serve a supplementary affidavit of documents. The Master refused to order the plaintiff to produce pages from his Facebook account. Justice Brown allowed the appeal to the extent that the defendant was granted leave to cross-examine the plaintiff on his supplementary affidavit of documents about the nature of the content posted on Facebook.

[25] In Leduc Justice Brown states at paras. 23 and 32:

23 That a person’s Facebook profile may contain documents relevant to the issues in an action is beyond controversy. Photographs of parties posted to their Facebook profiles have been admitted as evidence relevant to demonstrating a party’s ability to engage in sports and other recreational activities where the plaintiff has put his enjoyment of life or ability to work in issue: Cikojevic v. Timm, [2008] B.C.J. No. 72, 2008 BCSC 74 (Master), para. 47; R. (C.M.) v. R. (O.D.), [2008] N.B.J. No. 367, 2008 NBQB 253, paras. 54 and 61; Kourtesis v. Joris, [2007] O.J. No. 2677 (Sup. Ct.), paras. 72 to 75; Goodridge (Litigation Guardian of) v. King, [2007] O.J. No. 4611, 161 A.C.W.S. (3d) 984 (Ont. Sup. Ct.), para. 128. In one case the discovery of photographs of a party posted on a Myspace webpage formed the basis for a request to produce additional photographs not posted on the site: Weber v. Dyck, [2007] O.J. No. 2384 (Sup. Ct., Master).

32…I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.

[26] In Stewart v. Kempster, 2012 ONSC No. 7236 (Ont. S.C.J.) the defendant sought production of the plaintiff’s private portion of the Facebook account pursuant to Rule 30.06. Justice Heeney’s reasons emphasize that the motion before the court was evidence driven and requires evidence to satisfy the court that a relevant document has been omitted from a plaintiff’s affidavit of documents. On the evidence before the court, Justice Heeney was not satisfied of the existence of a relevant document that had been omitted from the plaintiff’s affidavit of documents.

[27] While this is not a motion for production pursuant to Rule 30.06, to the extent that an evidentiary basis may be required, I am satisfied that the TTC has demonstrated an evidentiary basis for the request. On her examination for discovery the plaintiff testified that she has a Facebook account (Question 1303). The plaintiff also testified that she posted a few activities that she did with friends (Question 1304) including a luncheon and going to the Exhibition (Question 1305).

[28] I am satisfied that the request for the plaintiff’s Facebook account is relevant to matters in issue in the action based on the pleadings. The plaintiff alleges that she sustained severe, serious and permanent injury as a result of the accident, that her enjoyment of life has been lessened and that she has not been able to fully resume her prior employment as pleaded at paragraphs 6, 7, 11 and 12 of the statement of claim.

[29] Whether the Facebook account is ultimately admissible at trial will be a determination made by the trial Judge (Isacov at para. 31, citing Justice Arrell in McDonnell v. Levie, 2011 ONSC 7151 (Ont. S.C.J.) at para. 15).

[30] The refusal at Question 1312 (Page 217, Line 25, Page 218, Lines 1-6) shall be answered.

[31] The TTC requests production of the employment file from the plaintiff’s post-discovery employment as asked at Question 1365 (Page 231, Lines 22-25, Page 232, Lines 1-2, 9-25, Page 233, Lines 1-7). The parties agreed to revisit the issue of production of the employment file at the time of trial preparation (Page 233, Lines 12-21). In particular, the TTC requests the employment file from Elections Canada. On the motion, the TTC also submitted that, at the very least, the hours and pay should be provided pursuant to an undertaking at Question 1365 (Page 232, Lines 3-6).

[32] The plaintiff’s position is that all relevant information has been provided.

[33] In support of her position that all relevant information has been provided, the plaintiff relies on a letter from Heather Fisher, law clerk, dated November 27, 2018, found at Exhibit J to the affidavit of Ms. Fisher, wherein she states:

We can advise that on October 22, 2018 was [sic] Draskovic was employed as a Ballot Officer with Elections Canada. Ms. Draskovic advised that the location was in a party room and only service [sic] the residence of that particular building (located at 99 The Don Way West in Toronto. She was able to lie in the couch, change positions easily, and take breaks when needed. Despite these accommodations Ms. Draskovic experienced significant pain after working that day.

[34] The plaintiff also relies on paragraph 2 to the supplemental affidavit of Ms. Fisher:

On May 3, 2021 I spoke with the plaintiff, Kim Draskovic, who confirmed that, in addition to working one day as a Ballot Officer for Elections Canada during the provincial election in 2018, she also worked as a Ballot Officer in 2019 during the federal election. The income is reported in the plaintiff’s 2018 and 2019 income tax returns.

[35] Paragraph 42 of the plaintiff’s factum also refers to other information concerning this employment and states that there are no performance reviews, benefit information, work schedules or vacation particulars. In the factum there is no reference to the evidence in support of this other information. On the motion I was not referred to evidence in support of this other information.

[36] On the motion, plaintiff’s counsel stated that the income earned from Elections Canada is set out as “other income” in the plaintiff’s U-File tax return summary (B-1-226 of Caselines for 2018 and B-1-261 of Caselines for 2019). The plaintiff shall confirm to the defendant in writing the specific amount of income earned from Elections Canada.

[37] Given the nature of the employment it may be that there is no employment file and that the other information at paragraph 42 of the plaintiff’s factum is accurate. However, there has been no request for an employment file. No documentation or other evidence has been provided in support of the other information at paragraph 42 of the factum. In addition, the hours worked, the specific income earned, and the date worked in 2019 have not been confirmed.

[38] I am not satisfied that all relevant information has been provided.

[39] The question is relevant to matters in issue in the action based on the pleadings and in particular based on the plaintiff’s claim for loss of income and alleged inability to fully resume her employment as pleaded at paragraph 11 of the statement of claim.

[40] Question 1365 (Page 231, Lines 22-25, Page 232, Lines 1-2, 9-25, Page 233, Lines 1-7) shall be answered. The plaintiff shall request the employment file with respect to the plaintiff’s employment with Elections Canada in 2018 and 2019. The plaintiff shall confirm the date worked in 2019. The plaintiff shall also provide the hours worked and pay in accordance with the undertaking given at Question 1365 (Page 232, Lines 3-6).

[41] With respect to costs, each party shall bear their own costs of this motion. The TTC was granted an indulgence with respect to an extension of time within which to schedule this motion. The questions at issue were ordered to be answered.

[42] Order to go as follows:

1. The time within which to schedule this motion is hereby extended to March 3, 2021.
2. Question 1312 (Page 217, Line 25, Page 218, Lines 1-6) shall be answered within 30 days of today’s date.
3. Question 1365 (Page 231, Lines 22-25, Page 232, Lines 1-2, 9-25, Page 233, Lines 1-7) shall be answered. The plaintiff shall request the employment file with respect to the plaintiff’s employment with Elections Canada in 2018 and 2019. The plaintiff shall confirm the date worked in 2019. The plaintiff shall also provide the hours worked and pay in accordance with the undertaking given at Question 1365 (Page 232, Lines 3-6). The foregoing shall be provided within 30 days of today’s date.
4. There shall be no costs of this motion payable to any party.

Master B. McAfee

Date: June 4, 2021