COURT FILE NO.: 17-086
DATE: 2021/07/09
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE
RE: KENNETH JOHN REKOWSKI by his Litigation Guardian KAREEN
REKOWSKI, KAREEN REKOWSKI and IRENE REKOWSKI, Plaintiff(s)/Respondents
- and -
CORPORATION OF THE COUNTY OF RENFREW, STEVE BOLAND
WADE PATERSON, KEITH PRICE, NICK ECKFORD, CONSTANCE
MARY ELLAH and ROBERT ELLAH, Defendant(s)/Moving Party County of Renfrew
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: John Lundrigan & Heather Mason for the defendant County (Moving Party)
Tom Connolly for the Plaintiffs (Responding Party)
Tara Lemke for the Ellah defendants
HEARD: April 30, 2021
DECISION AND REASONS
[1] This is a motion in a very unusual motor vehicle action which is before the court in Pembroke. It is unusual because the accident occurred in 2009. It is also unusual because this action was not started until 2017, more than eight years later. Unusual because the plaintiff has apparently been in the Renfrew Victoria Hospital for over a decade and unusual because the original litigation arising from the accident was all settled in 2014. [^1]
[2] The current motion is a discovery and production motion. It is largely driven by the nature of the proceeding and the desire of the County to unearth any evidence relevant to a limitation defence. Counsel for the County has been on a determined search for any proof which might permit the County to shelter from liability under the Limitations Act, 2002. [^2]
Background
[3] As detailed in my 2019 decision, the plaintiff was injured in an automobile accident in winter conditions on January 3rd, 2009. The driver and passenger of the other vehicle Constance Ellah and Theresa Yakabuskie brought actions against Mr. Rekowski and his mother who was the owner of the vehicle he was driving. It was alleged in those proceedings that Mr. Rekowski was at fault in the accident. Mr. Rekowski did not have a litigation guardian and was defended by his mother’s insurer.
[4] No one at the time suggested that road maintenance was to blame for the accident and the County was not a party to those proceedings. The actions settled within the policy limits and were dismissed on the basis that the settlement did not affect the interest of any party under a disability. There was no claim brought by Kenneth Rekowski at that time although he did pursue no fault statutory accident benefits. The current action was started in 2017.
[5] The question going to the merits of the current proceeding is whether or not a failure of winter maintenance on the part of the County was a significant cause of the accident. Even if that can be proven, however, the plaintiff cannot succeed against the County if the action was not commenced in time and is statute barred.
[6] The key to that question is s. 7 of the Act which provides that the two year limitation period established by s. 4 does not run during any period when a plaintiff is incapable of proceeding with a claim due to a physical, mental or psychological disability unless and until a litigation guardian is appointed. There are therefore two pertinent questions. Firstly, is the plaintiff under a disability and has he been continuously under disability since the accident? Secondly, has he ever been represented by a litigation guardian prior to the start of this action?
[7] On the previous motion I had ordered that any relevant information in the previous lawyers files be obtained and produced subject to proper claims of privilege. Any factual information in the files touching on the plaintiff’s condition or capacity or the appointment of a litigation guardian would be relevant. This is due to the fact that the earlier court proceedings were court proceedings against Kenneth Rekowski as a defendant. In at least one of those actions, there was a crossclaim. Those cases were all settled and no one at the time believed that court approval was necessary. Whether that is because the settlement was within the limits or because no one turned their mind to the capacity of Mr. Rekowski is unclear.
[8] We now know that Mrs. Irene Rekowski (the owner of the vehicle driven by the plaintiff) hired Mr. Connolly in 2012 to advise her about her potential exposure for liability above her policy limits. That involvement was fleeting because of the 2014 settlement. Mr. Connolly was not at that time retained to consider an action on behalf of Kenneth Rekowski.
[9] No action was commenced on Kenneth’s behalf until this proceeding was started in 2017 but his injuries were so significant or at least the consequence of those injuries were such that he has never been able to come home. He has spent more than a decade as a patient in the Renfrew Victoria Hospital. I gather he is not physically disabled but suffers from emotional, regulatory and behavioural issues said to be consequential to a brain injury. He is said to require 24 hour attendant care so the claim he is advancing is significant. The statement of claim seeks damages of $18,000,000.00.
[10] Since the 2019 motion, counsel for the defendant has been given significant latitude to conduct discoveries and to examine the files of the previous lawyers acting for Mr. Rekowski as a defendant and as a claimant for accident benefits. He is not satisfied. He seeks further production and further discovery.
The Sufficiency of the Affidavits of Documents
[11] I do not agree that the description of documents in Schedule B of the affidavits of documents is generally deficient and needs to be redone. What is required is a description which identifies the documents over which privilege is being claimed and the nature of the privilege but without disclosing the contents. As will be seen from my ruling on inspection of the documents in Supplementary Affidavit No. 5, in my view the descriptions comply with the purpose of the affidavit and with the rules.
[12] I also do not agree that privilege was waived. I made the order for disclosure of any relevant documents in the lawyers’ files subject to proper claims of privilege. Any factual information relating to the condition of the plaintiff or his capacity or the appointment of a litigation guardian would be relevant and must be disclosed. Whether privilege has been waived or whether privilege must yield to the imperatives of justice would then have to be determined.[^3]
The Undertakings
[13] The undertakings have for the most part been answered. The plaintiffs argue that it was abusive to bring this motion while they were engaged in providing answers. Most of the outstanding undertakings relate to requests for third party productions. Some allowances must be made for the impact of the pandemic on the office operations of physicians and other health providers.
[14] It seems reasonable to set a deadline for both parties to answer any outstanding undertakings and also to require some further effort to follow up on record requests. If third party record holders do not comply then the plaintiff will be at liberty to bring motions under Rule 30.10 or 31.10 of the Rules of Civil Procedure[^4] as may be appropriate.
The Refusals
[15] The litigation guardian was examined for discovery in August of 2019 and in June of 2020. There was a number of refusals and many of those remain in issue. These were the subject of the motion.
[16] No. 131, Q. 228 was a request to identify the contents of the file from Davis Security that were not considered relevant. This is the employment file. I agree that the rules do not require listing or production of irrelevant documents but there is a significant loss of income claim and all payroll records, discipline records and performance reviews (if any) would be relevant. A party conducting discovery is entitled to cross examine on the affidavit of documents and it is a legitimate question to ask the plaintiff to identify the portions of the employment file that have been withheld. This question is to be answered.
[17] No. 132, Q. 366 was a refusal to produce records of a call to police regarding a fight between Kenneth and his brother, Kevin. Since the police were called and an issue in the claim for damages is Kenneth’s current ability to regulate his behaviour, the question is relevant and should be answered if the plaintiff has these records.
[18] No. 135 & 136, Q. 730 and 767 were requests to ask Derek Griffiths (previous counsel) certain questions. The plaintiff has advised that he has obtained Mr. Griffiths entire file and has described the contents in schedules A or B of the affidavit of documents. These questions need not be answered.
[19] No. 138, Q. 946 asks for information about the handling of the Accident Benefits file. I agree that legal advice is privileged and there is no relevance to how and why the accident benefits file was settled. The deduction of collateral benefits from any damages award is a question to be resolved by the judge after the trial of the tort action.
[20] No. 142, Q. 984 is a request for clinical notes from Kareen Rekowski’s physician. Kareen is an FLA[^5] claimant as well as the litigation guardian. Although she claims for loss of care, guidance and companionship and loss of income for time spent attending to Kenneth’s needs, she does not make any medical related claim such as damages for mental anguish or emotional trauma. She has not put her medical history in issue. This question need not be answered. Similarly, No. 155, Q. 1506 need not be answered.
[21] No. 143, Q. 993 was a demand to make a freedom of information request to the OPP. I agree with the plaintiff that the defendant may make its own request but I do not agree that Ms. Rekowski should then be able to consider whether or not to consent to it. She is to provide her consent if it is required.
[22] Nos. 144, 145, 147, 148, 149 and 150 seek information concerning advice obtained from various lawyers or information provided to those lawyers for the purposes of real or contemplated litigation. This information is the subject of solicitor-client or litigation privilege or both. It has not been waived. Discussions with counsel, information provided to counsel and advice received from counsel remain privileged. This is distinct from factual information which may be in the lawyers files including any information about the plaintiff’s medical condition at the relevant times or any appointment of Kareen Rekowski or anyone else to act on the plaintiff’s behalf in a manner akin to a litigation guardian. These questions need not be answered.
[23] No. 154, Q. 1487 ask for names of Ms. Rekowski’s clients. She declines to provide these names for confidentiality reasons. Confidentiality may not be a bar to production of client names if the clients are material witnesses or if something to do with those clients is put in issue but without a further basis for this question, it need not be answered.
[24] No. 160, Q. 1320 asks for an explanation for the temporal gap between two letters to the county written almost three years apart, in 2012 and 2015. This question touches on litigation strategy or legal advice and need not be answered. I recognize the County may wish to make an argument about bad faith, delay and prejudice in facing a 2017 action concerning a 2009 accident it did not know it was implicated in. However, there is no evidence of actual prejudice such as the destruction of records or the death of witnesses nor does it appear that there is any reliance by the plaintiff on legal advice such as to put that advice in issue. This question need not be answered unless circumstances change which would cause the court to review this ruling.
[25] Nos. 161 & 162, Q. 1886 are now ongoing undertakings. The plaintiff will comply with those undertakings and update the information as may be appropriate.
[26] I am asked to inspect the contents of Mr. Griffiths file over which privilege is claimed. These are Nos. 2 – 36 in Schedule B of Supplementary Affidavit of Documents No. 5. The plaintiff does not oppose this and takes no position on the question of inspection although they continue to assert that the documents are privileged.
[27] I see no reason to do so. The documents are described with appropriate particularity in Schedule B. They appear to relate to legal advice and the accident benefits file. I understand that the accident benefits file itself has been produced. I will not order an inspection at this time.
[28] Mr. Lundrigan seeks leave for further discovery. He has received significant information by way of undertaking and is also entitled to answers to the questions I ordered to be answered. Under these circumstances I would permit an additional two hours of discovery.
Summary and Order
[29] The parties shall use all reasonable efforts to answer any outstanding undertakings no later than August 30th, 2021. To the extent that the undertakings concern requests for records or information controlled by individuals or entities that are not party to the litigation, counsel for the plaintiff is to make a follow up written request by the end of July, 2021 and provide copies to the defence. The defendant is then at liberty to bring motions under Rule 30.10 or 31.10 as may be appropriate.
[30] The plaintiff will answer Q. 228 and 366 and provide the consent requested in Q. 993.
[31] Q. 1886 is an ongoing undertaking to be complied with up to the date of trial.
[32] Leave is granted for up to two additional hours of follow up discovery to be completed no later than the end of November, 2021.
[33] Counsel may arrange to address the question of costs if they cannot agree.
Mr. Justice C. MacLeod
Date: July 9, 2021
COURT FILE NO.: 17-086
DATE: 2021/07/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: KENNETH JOHN REKOWSKI by his Litigation Guardian KAREEN REKOWSKI, KAREEN REKOWSKI and IRENE REKOWSKI, Plaintiff(s)/Respondents
- and -
CORPORATION OF THE COUNTY OF RENFREW, STEVE BOLAND, WADE PATERSON, KEITH PRICE, NICK ECKFORD, CONSTANCE
MARY ELLAH and ROBERT ELLAH, Defendant(s)/Moving Party County of Renfrew
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: John Lundrigan & Heather Mason for the defendant County (Moving Party)
Tom Connolly for the Plaintiffs (Responding Party)
Tara Lemke for the Ellah defendants
decision and reasons
Mr. Justice C. MacLeod
Released: July 9, 2021
[^1] For further factual details, see the previous ruling in this matter found at 2019 ONSC 2852
[^2] S.O. 2002, c. 24, Schedule B.
[^3] Blank v. Canada, 2006 SCC 39
[^5] Family Law Act, R.S.O. 1990, c.F.3, as am