Court File and Parties
Court File No.: 2119/18 Date: 2021-08-03 Superior Court of Justice - Ontario
Re: Matthew Baljko, Plaintiff And: Jeffrey Kay, Defendant
Before: Justice A. K. Mitchell
Counsel: A. Szczurko for the Plaintiff/Responding Party T. Madison for the Defendant/Moving Party
Heard: July 23, 2021
Endorsement
Overview
[1] The defendant brings this motion seeking to compel the plaintiff to answer, at his cost, questions undertaken and refused at his examination for discovery. The defendant also seeks an order requiring the plaintiff to serve a further and better sworn affidavit of documents within 30 days.
[2] The plaintiff opposes the motion claiming any disbursements relating to production of documents and records in the possession of third parties in answer to the undertakings should be borne by the defendant, and all questions refused or taken under advisement were properly not answered.
Background
[3] This action arises from a motor vehicle accident which occurred on December 8, 2016. The plaintiff’s vehicle struck the defendant pedestrian. The plaintiff claims damages as a result of striking the defendant pedestrian, who was not injured.
[4] A statement of claim was issued on October 18, 2018. A statement of defence was filed on November 25, 2018.
[5] The plaintiff alleges that he sustained personal injuries and impairments as a result of striking the defendant pedestrian including: neck and shoulder pain; numbness of the left shoulder; aggravation and exacerbation of his pre-existing post-traumatic stress disorder (“PTSD”); driving anxiety; fatigue and stress; and straining and tearing of muscles and ligaments throughout his body.
[6] Examinations for discovery were completed on November 18, 2019.
Refusals and Undertakings
[7] During argument on the motion, the court reviewed with counsel the plaintiff’s undertakings and refusals chart. During that review it became apparent that a number of the undertakings and refusals listed in the defendant’s chart had been answered or best efforts had been made to fulfil certain undertakings. With respect to the latter, the defendant pointed out that those best efforts were only made known to the defendant after this motion was served on plaintiff’s counsel.
[8] The following refusals remain outstanding and form the subject matter of this motion:
Q. 488: To provide the complete Daya Counselling Centre (“Daya”) file.
Q. 495: To provide Dr. Morella’s file.
Q. 496: To provide the trauma program records from London Health Sciences Centre (“LHSC”) for the five years prior to the date of the accident.
Q. 642: To provide Dr. Kiddi’s clinical notes and records from five years pre-accident.
Q. 690: To provide the Mental Health Crisis Centre records from five years pre-accident to date.
Q. 133: Were you looking out for pedestrians crossing the street?
Q. 479: To provide the plaintiff’s ODSP application submitted January 2013.
Q. 107: To provide Dr. Benn’s entire file including session notes.
Q. 102: To advise when the LAT application has been made and to provide the application and responding material.
[9] The plaintiff has refused to answer the foregoing questions claiming the particular question or request for production, as the case may be, is irrelevant and/or extends beyond the standard production period of three years preceding the motor vehicle accident.
Analysis
[10] The scope of examination for discovery is governed by rule 31.06 of the Rules of Civil Procedure, the relevant portions of which read as follows:
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…
[11] In this action, the plaintiff claims against the defendant in negligence and seeks $800,000 in general and pecuniary damages arising from the motor vehicle accident. The plaintiff alleges he suffered, among other injuries, aggravation of his pre-existing post-traumatic stress disorder.[^1]
[12] The plaintiff alleges that the psychological injuries he suffered in the accident are preventing him from working.
Q. 488: To provide the complete Daya Counselling file
[13] The plaintiff was diagnosed with and treated for PTSD in 2013. His PTSD arises from historical sexual abuse. The plaintiff received counselling through the Daya as part of his treatment for PTSD.
[14] The plaintiff submits that a request was made of Daya and a response was received on December 19, 2019. Daya refuses to disclose the plaintiff’s records on the basis of privacy and confidentiality. For reasons unknown, plaintiff’s counsel did not provide a copy of Daya’s response to defendant’s counsel.
[15] In his pleading, the plaintiff claims that the accident caused by the defendant’s negligence exacerbated his pre-existing PTSD. I find the records of Daya to be relevant and producible to the defendant and, to the extent required, the plaintiff shall provide his formal written consent to the production of Daya’s records. However, to the extent the records of Daya include session notes, they shall not be produced to the defendant.
Q. 495: To provide Dr. Morella’s file
[16] Dr. Morella is a psychiatrist affiliated with Daya who treated the plaintiff in 2013. Records and reports prepared by Dr. Morella will form part of the Daya records to be produced pursuant to this order. No further order is therefore needed.
Q. 496: To provide the Trauma Program records from LHSC for the five years prior to the date of the accident.
[17] Through inadvertence, the plaintiff produced all records of LHSC including trauma program records, since he began receiving treatment at LHSC in March 2013. No further order is necessary.
Q. 642: To provide Dr. Kiddi’s clinical notes and records pre- and post-accident
[18] At his examination for discovery the plaintiff advised that he had problems with clenching his teeth prior to the accident. He went on to advise his jaw issues were exacerbated as a result of the subject accident and advised that he saw Dr. Kiddi for these complaints both before and after the accident.
[19] I find these records are relevant and should be produced.
Q. 690: To provide the Mental Health Crisis Centre records from five years pre-accident to date
[20] The plaintiff has made his pre-existing PTSD (which was diagnosed in January 2013) an issue in this accident. Accordingly, these records are relevant and should be produced for the period commencing January 2013.
Q. 133: Were you looking out for pedestrians crossing the street?
[21] At paragraph 4.a. of the statement of defence the defendant pleads that “…the alleged injuries and suffering, if any, were caused or contributed to by the negligence of the plaintiff, the particulars of which include, but are not limited to…he failed to keep a proper lookout…”.
[22] The defendant pleaded in his statement of defence that the plaintiff was contributorily negligent in failing to keep a proper look out for pedestrians. This question is therefore proper and relevant.
Q. 479: To provide the plaintiff’s ODSP application submitted January 2013
[23] For reasons already provided above, the plaintiff’s ODSP application and supporting medical opinions and reports of his treating physicians are relevant and producible.
Q. 107: To provide Dr. Benn’s entire file including session notes
[24] The defendant has received Dr. Benn’s assessment reports which include his opinions including all diagnoses and prognoses. Dr. Benn relied on his session notes in preparing his reports. I am mindful of the need to balance the privacy interests of the plaintiff with the interests of the defendant in having all relevant information in order to properly defend these claims. I find that the notes themselves contain highly sensitive information relating to sexual abuse suffered by the plaintiff and that, therefore, the privacy interests of the plaintiff outweigh the interests of the defendant and should not be produced.
Q. 102: To advise when the LAT application has been made and to provide the application and responding material
[25] The defendant is privy to the status of the plaintiff’s accident benefits claim and should a settlement be reached with respect to his accident benefits claim, the defendant will be provided with the terms of the settlement. I am not persuaded that the nature of the plaintiff’s LAT application and its status have more than a semblance of relevancy. I find that this question was properly refused on discovery.
[26] The final issue on the motion is whether the plaintiff or the defendant should bear the cost of obtaining production from third parties and providing an electronic copy of these documents to the defendant.
[27] I concur with the reasoning in Yang v. Gazey[^2] that payment of these costs at first instance should be borne by the plaintiff as it is a cost of litigation. If successful, these costs will form part of the plaintiff’s assessable disbursements and will be recovered.
Disposition
[28] For the foregoing reasons, an order shall issue on the following terms:
(a) the plaintiff shall forthwith provide to the defendant a copy of the response received from Daya received December 19, 2019;
(b) the plaintiff shall make a further request of Daya accompanied by his written executed consent (with a copy of this further request to be provided forthwith to defendant’s counsel) for the release of his counselling records and shall produce these records to the defendant;
(c) the plaintiff shall provide his answer to the question: At the time of the accident were you looking out for pedestrians crossing the street?
(d) the plaintiff shall provide Dr. Kiddi’s clinical notes and records for the three years predating the accident and following the accident;
(e) the plaintiff shall provide a copy of his ODSP application submitted in January 2013 (including all forms, reports and opinions of treating physicians filed in support of such application);
(f) the plaintiff shall serve a further and better sworn affidavit of documents within 60 days of the date of this order;
(g) the plaintiff shall provide a USB drive containing all productions relating to the plaintiff’s undertakings given at his examination for discovery and all further production ordered pursuant to this order; and
(h) the plaintiff shall pay all disbursements associated with obtaining the documents necessary to satisfy his undertakings and the further production ordered pursuant to this order.
Costs
[29] The moving party was, on balance, successful on the motion and is, therefore, presumptively entitled to his fair and reasonable partial indemnity costs of the motion. Costs outlines were submitted in accordance with the requirement under the Rules of Civil Procedure.
[30] The moving party seeks his partial indemnity costs totalling $7,411 which figure is comprised of $5,758.40 in fees and $1,652.60 in disbursements. Mr. Madison has 5 years’ experience and charges $110 per hour on a partial indemnity basis. Total hours spent were 48.4 with 27.6 hours spent by Mr. Madison.
[31] By comparison, the plaintiff’s partial indemnity costs of the motion were $16,226.67 comprised of $13,828.38 in fees, $1,797.69 HST and $600.60 in disbursements – more than twice the costs of the moving party. Ms. Szczurko has 13 years’ experience and charges $373.75 per hour on a partial indemnity basis. Total hours spent were 97.85 with 20.3 hours spent by Ms. Szczurko.
[32] I find that the time spent and the hourly rates charged by the moving party are fair and reasonable. However, the moving party wasted the court’s time on June 30, 2021 when this motion was first scheduled to be argued as a special appointment. I was also the motions judge on that date. I refused to hear the motion as the relief sought had not been requested in either the notice of motion or the factum filed by the moving party in support of the motion. I granted leave to the moving party to amend his notice of motion and return the matter on July 23, 2021. I urged the parties to resolve the issues particularly the issue relating to costs of production.
[33] Despite the court’s expressed views, the moving party amended its notice of motion and returned the matter for argument on the merits to a regular motions court list. No efforts were made by counsel to narrow the issues on the motion. I note that an amended factum was not filed by the defendant nor was a properly completed undertakings and refusals chart filed.
[34] Despite the 60-minute time limit for argument and confirmation of that time estimate submitted by counsel for the moving party, argument lasted for the better part of two hours. A deduction in an otherwise fair and reasonable cost award is warranted so as to discourage this type of practice.
[35] I hereby order the plaintiff to pay the defendant his costs of the motion fixed in the amount of $2,500 inclusive of HST and disbursements.
“Justice A.K. Mitchell”
Justice A. K. Mitchell
Date: August 3, 2021
[^1]: paragraph 7C of the statement of claim [^2]: [2011] O.J. No. 6137 (Ont. S.J.) at para. 6-7. See also Popovski v. Timbercreek Asset Management Inc., 2016 ONSC 5460 at para. 11.