Court File and Parties

COURT FILE NO.: CV-10-395662

DATE: August 16, 2021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helen Frances v. TTC Insurance Company, Toronto Transit Commission, Paul Manherz, Peter Ashbourne, Julie Stafford, John Doe, Faruk Hatia and The Toronto Police Services Board;

BEFORE: MASTER C. WIEBE

COUNSEL: Adam Romain for Helen Frances; Chad Townsend for TTC Insurance Company ("TTCIC"), Toronto Transit Commission ("TTC"), Paul Manherz, Peter Ashbourne, Julie Stafford and Faruk Hatia; David A. Gourley for The Toronto Police Services Board ("TPSB").

HEARD: March 31, April 8, April 15, June 2, June 3 and July 6, 2021.

REASONS FOR DECISION

[1] The plaintiff, Helen Frances, brought this motion in late February, 2020. Originally, the motion involved both a request for the following two sets of orders:

• an order extending the set down deadline and a sixth new timetable, which I have called the "Schedule Issues;"

• an order concerning undertakings and refusals given at the discoveries of the TTCIC, TTC, Mr. Manherz and Mr. Ashbourne and the attendance of these defendants and Ms. Stafford at further discoveries and the time limits of those attendances, which I have called the "Discovery Issues."

[2] On July 2, 2020 I bifurcated this motion between these two issues. I heard the motion concerning the Schedule Issues on September 17, 2020 and issued reasons on October 24, 2020 granting a sixth timetable and extending the set down deadline to October 31, 2021.

[3] On November 6, 2020 I set a schedule for the hearing of the motion on the Discovery Issues. This schedule had the motion to be argued for the entire day of March 31, 2021. The parties uploaded the updated and detailed undertakings and refusals charts as directed and filed the necessary transcripts. There were voluminous undertakings and refusals in issue.

[4] When we convened on March 31, 2021, Mr. Romain had a health issue. Given the number of undertakings and refusals in issue, I as a result rescheduled the motion to be argued on two days, April 8 and 15, 2021. On April 8, 2021, I scheduled yet another two days for the motion, June 2 and 3, 2021. On June 2, 2021, I scheduled yet another return date, July 6, 2021, for the argument on one issue concerning a refusal by Anthony Cerqueira, the person discovered for the TTC and TTCIC, namely the refusal at q. 159, p. 299 of the transcript of his discovery concerning the obligation, if any, to summarize the contents of the documents listed in Schedule B of the defendants' affidavits of documents.

[5] I will refer to the TTCIC, TTC, Mr. Manherz, Mr. Ashbourne, Mr. Cerqueira and Ms. Stafford collectively as the "TTC Defendants."

Undertakings and refusals

[6] On April 9, 2021, I instituted a process whereby each undertaking and refusal in issue was argued by both sides (Ms. Frances and the TTC Defendants) and I gave oral rulings and reasons on the spot that were recorded. I followed that process on April 9, April 15, June 2 and June 3, 2021. Therefore, I will deal with the undertakings and refusals in issue in this decision only to the extent of reiterating the rulings.

[7] On April 8, 2021 I made the following rulings:

• Manherz undertakings: Concerning the undertakings given by Mr. Manherz on October 22, 2019, I ruled on 4 undertakings. I ruled that the following undertakings had not been complied with and must be complied with in 30 days: q. 19, p. 9; q. 185, p. 70. I ruled that the following undertaking had been answered: q. 280, p. 107-9.

• Manherz refusals: Concerning the refusals given by Mr. Manherz on October 22, 2019, I ruled on 25 refusals. I ruled that the following question did not have to be answered: q. 361, p. 128. I ruled that q. 468, p. 158 could be rephrased at a future further discovery of Mr. Manherz. I ruled that the following refusals had now been answered: q.324, p. 117; q. 438, p. 147; q. 442, p. 149; q. 444, p. 150. I ruled that the following refusals must be answered: q. 39-40, p. 22; q. 82, p. 34; q. 357-358, p. 126-7; q. 363, p. 128; q. 400, p. 137-8; q. 445, p. 150; q. 447, p. 151-2; q. 460, p. 155; q. 462, p. 156; q. 468, p. 158; q. 469, p. 159; q. 470, p. 160; q. 472, p. 160; q. 474, p. 161; q. 475, p. 161; q. 476, p. 161-2; q. 478-9, p. 162-3; and q. 494, p. 167. Concerning the refusals at q. 34, p. 16 and q. 42, p. 22, I ruled that Mr. Manherz's redacted memo books had to be delivered to me for my review and ruling on whether the redacted parts should be disclosed. That was done by email on April 13, 2021.

• Ashbourne undertakings: Concerning the undertakings given by Mr. Ashbourne on October 1, 2013, October 2, 2013 and October 21, 2019, I ruled on 13 undertakings. I ruled that the following undertakings had not been complied with and must be complied with in 30 days: q. 231, p. 54; q. 315, p. 77-78; q. 360-1, p. 87-88; q. 381, p. 94; q. 1040, p. 252; q. 1150, p. 277; q. 1188, p. 287; q. 1196, p. 290; q. 1198, p. 291; q. 1205, p. 293; q. 1205, p. 293. I ruled that the following questions were answered: q. 37, p. 32; q. 145, p. 71.

• Ashbourne refusals: Concerning the refusals given by Mr. Ashbourne on October 21, 2019, I ruled on 19 refusals. I ruled that the following refusals must be answered: q. 3, p. 7; q. 4. p. 8; q. 4, p. 10; q. 6, p. 11; q. 6, p. 12; q. 11, p. 21; q. 22, p. 28; q. 35, p. 31; q. 45, p. 35; q. 54, p. 39; q. 54, p. 40; q. 58, p. 42; q. 140, p. 68; q. 202, p. 81; q. q. 227, p. 86; q. 229, p. 87. I ruled that the following refusals had been answered: q. 6, p. 11; q. 6, p. 14; q. 53, p. 38; q. 226, p. 85-86.

[8] On April 15, 2021 I made the following rulings:

• Ashbourne refusals: Concerning the remaining refusals given by Mr. Ashbourne on October 21, 2019, I ruled on 20 refusals. I ruled that the following refusals need not be answered: q. 334, p. 112; q. 358, p. 124. I ruled that only the first part of the following question must be answered: q. 290, p. 102. I ruled that the following refusals must be answered: q. 243, p. 89-90; q. 264, p. 95; q. 288, p. 99-100; q. 331, p. 111; q. 332, p. 111; q. 333, p. 112; q. 335-336, p. 112-114; q. 337-338, p. 114- 115; q. 338, p. 115; q. 341, p. 117; q. 344, p. 119; q. 346-347, p. 120; q. 351, p. 122; q. 352, p. 122; q. 353, p. 123; q. 358, p. 124; q. 359-360; p. 124-125.

• Cerqueira undertakings: Concerning the undertakings given by Mr. Cerqueira on October 21, 2019, I ruled on 19 undertakings. I ruled that the following undertakings had been complied with: q. 166, p. 86; q. 24, p. 9; q. 299, p. 155-156. I ruled that the following undertaking had not been complied with as to the issue of time: q. 174, p. 88. I ruled that the following undertaking had not been complied with as to the identity of the person who referred the file to the TTC: q. 177-179; p. 89-98. I ruled that the following undertaking should be complied with as it pertains to Ms. Frances and Ms. Pinor: q. 299, p. 172. I ruled that the following undertakings had to be complied with to include the disclosure of the redactions: q. 275, p. 138-139; q. 275, p. 138-139; q. 275, p. 139-139. I ruled that the following undertakings had not been answered: q. 148, p. 82; q. 198, p. 98; q. 223-226, p. 109-111; q. 230, p. 113; q. 275, p. 139; q. 299, p. 170; q. 301, p. 178-179; q. 301, p. 181; q. 113, p. 56. I ruled that these further answers must be delivered in 30 days.

• Cerqueira refusals: Concerning the refusals given by Mr. Cerqueira on October 21, 2019, I ruled on 36 refusals. I ruled that the following refusal was proper: q. 234, p.115. I ruled that the following refusals had been answered: q. 53, p. 20; q. 72-82, p.28; q. 106, p. 44-48; q. 111, p. 48; q. 206, p. 102; q. 234, p. 115. I ruled that the following refusal must be answered as it relates to the TTCIC only: q. 209, p. 104. I ruled that the documents requested in this refusal must be listed in the defendants' Affidavit of Documents, Schedule B: q. 234, p. 115. I ruled that the following refusals must be answered: q. 87-88, p. 29-30; q. 91, p. 31; q. 95, p. 35; q. 96, p. 36; q. 97, p. 37; q. 98, p. 38; q. 99, p. 38-39; q. 101, p. 42; q. 102, p. 43; q. 124, p. 67; q. 181, p. 93; q. 184, p. 93; q. 184, p. 93-94; q. 191, p. 96; q. 195, p. 97; q. 196, p. 98; q. 203, p. 100; q. 205, p. 101; q. 205, p. 101; q. 207, p. 103; q. 208, p. 103; q. 210, p. 104; q. 211, p. 104; q. 227, p. 111; q. 228, p. 112; q. 231, p. 113-114.

[9] On June 2, 2021 I made the following rulings:

• Cerqueira refusals: Concerning the refusals given by Mr. Cerqueira on October 21, 2019, I ruled on 30 refusals. I ruled that the following refusals were proper: q. 235, p. 116; I ruled that the following refusals had been answered: q. 239, p. 119; q. 262, p. 128; q. 264, p. 129-130; q. 264, p. 131; q. 290, p. 151; q. 291, p. 151; q. 292, p. 151-152; q. 294, p. 152; q. 299, p. 156; q. 299, l. 4, p. 166; q. 299, l. 15, p. 166; q. 299, p. 168; q. 299, l. 26, p. 176; q. 300, p. 177; q. 302, p. 182; q. 303, p. 182; q. 319, p. 188; q. 320, p. 188. I ruled that the following refusal must be answered in 30 days: q. 275, p. 139. I ruled that the following refusals must be answered: q. 299, p. 163; q. 299, l. 7, p. 164; q. 299, l. 21, p. 164; q. 299, l. 15, p. 165-166; q. 299, l. 14, p. 169; q. 299, l. 8, p. 173; q. 299, l. 15, p. 174; q. 301, p. 178-179; q. 304, p. 183. I ruled that the following refusal needed to be argued more fully before me on July 6, 2021: q. 299, p. 159.

[10] On July 6, 2021, counsel appeared before me to address the Cerqueira refusal at q. 229, p. 159 of the transcript of his discovery. This question concerned the disclosure of summaries of the contents of documents listed in Schedule B of the TTC Defendants' affidavits of documents. On June 15, 2021 Mr. Townsend sent Mr. Romain a letter containing a summary of the contents of these documents. Counsel agreed that I should deem that letter to be the answer to this refusal and order the refusal answered accordingly. That is what I did.

[11] I appear to have overlooked making a ruling on the redacted Manherz memo book pages. I make that ruling now. The memo book pages are dated March 21, 22, 23, 26, April 3, 4, 9, May 15, June 21, 28, 29, and July 23, 2007. I have now reviewed the unredacted pages and am satisfied that the redactions properly concern unrelated matters. They are not to be disclosed.

Further discoveries

[12] By June 3, 2021, there was no issue raised as to further supplementary affidavits of documents from the TTC Defendants. I was advised that the TTC and TTCIC delivered further supplementary affidavits of documents in February and May, 2021. Mr. Romain asked that I order that these two be combined into one. I ordered that that be done.

[13] I only add here that any relevant documents produced on account of my orders concerning the undertakings and refusals of the TTC Defendants should be included in yet further supplementary affidavits of documents if they have not already been so included.

[14] The only remaining issues to be determined are the following:

• the time to be allotted to the remaining oral discoveries of the TTC Defendants;

• whether the TTC Defendants who have been discovered are to reattend at their own expense to complete their discoveries.

[15] Concerning the discovery time issue, Mr. Romain argued that the time limits going forward should be as follows: Ms. Stafford: 7 hours; Mr. Manherz: 7 hours; Mr. Ashbourne: 5 hours; and Mr. Cerqueira: 7 hours. This amounts to a total of 26 hours of additional discovery. Mr. Townsend argued that the time limits going forward should be as follows: Ms. Stafford: 3 hours; Mr. Manherz: 1 hour: Mr. Ashbourne: 0 hours; Mr. Cerqueira: 0 hours. This amounts to a total of 4 hours.

[16] The governing rule is Rule 31.05.1(1). Under this rule each party is limited to no more than seven hours to examine the other parties, except with consent of the parties and leave of the court. Rule 31.05.1(2) specifies what factors the court should consider in granting leave.

[17] In this case, the effect of Rule 31.05.1(1) would be to limit Ms. Frances to no more than seven hours to examine all seven named defendants. The parties some time ago accepted that this was inadequate. This acceptance was noted by Master Abrams in her November 13, 2015 endorsement.

[18] Mr. Romain stated that some 20 to 21 hours have already been spent by Ms. Frances on discovering the defendants. The court reporter produced an email on March 9, 202. This email broke the time down as follows: Mr. Hatia was examined on December 17, 2012 for 4 hours and 10 minutes; Mr. Ashbourne was discovered on October 1, 2013 for 5 hours and 30 minutes; Mr. Ashbourne was discovered on October 2, 2013 for 3 hours and 10 minutes; Mr. Ashbourne was discovered on October 21, 2019 for 2 hours and 14 minutes; Mr. Cerqueira was discovered on October 21, 2019 for 3 hours and 23 minutes; Mr. Manherz was discovered on October 22, 2019 for 2 hours and 54 minutes. The TPSB has not been discovered. This produces a total of 20 hours and 27 minutes of spent discovery time.

[19] There was an argument as to whether the parties had agreed in 2013 at the time of the first Ashbourne discovery in October, 2013 to an allotment of 7 hours per defendant. There has been no formal agreed upon discovery plan. However, at the termination of the Ashbourne discovery on October 2, 2013, Madeleine Ferreira, the TTC defendants' lawyer at the time, stated on the record at page 328 of the transcript that, "I'd like the record to reflect that we were more than happy to produce, obviously, Mr. Manherz, who was here for noon, and to produce the other defendants, as well, so that they could be examined for a maximum seven hours each, as well." Whether this allotment was agreed upon is unclear. In his correspondence leading to this discovery, Mr. Romain had asked for less time. Mr. Romain responded to Ms. Ferreira's statement on the record by stating that this seven hour per defendant limit "was not something he had asked for." Therefore, I am not prepared to find that the parties reached a formal agreement as to a 7 hour per defendant time limit or as to any time limit on the discovery of the TTC Defendants.

[20] Therefore, I will determine whether and how the leave of the court should be applied. The factors outlined in Rule 51.05.1(2) must be considered. Applying those factors, I have decided to accept Mr. Romain's proposed schedule. Here are my reasons:

• Complexity: The issues in this case have complexity. While the events of the alleged accident on the bus on December 18, 2005 and the alleged fraud by Ms. Frances are straight forward, the complexity arises with the subsequent investigation and prosecution of Ms. Frances by the TTC defendants. Those events span a period of five years. In addition to the alleged fraud by Ms. Frances that started this case, there are now several other causes of action in issue, namely the alleged unpaid accident benefits, the tort claim against the TTC Defendants, the alleged negligent and fraudulent investigation by the TTC Defendants, and the malicious prosecution by the TTC Defendants.

What now further complicates this matter is the sudden and peculiar TTC loss of interest in pursuing its claim against Ms. Frances, the very claim that started this case. Mr. Townsend admitted this fact during this motion, stating that his clients would not be setting this action down for trial despite having completed Ms. Frances' discovery. This raises questions as to the basis for the TTC Defendants actions against Ms. Frances in the first place.

• Money in issue: There is significant money at stake. Ms. Frances' claim is for $7 million. The counterclaim from the TTC defendants is for $150,000 plus unspecified special damages.

• Financial imbalance: There is a real imbalance of financial positions of the parties. It is undisputed that Ms. Frances is a woman of modest means with a career as a personal support worker. The TTC on the other hand is a substantial public body with considerably greater resources to fight this litigation. The TTC is also a complicated, self-insured organization with an internal legal department.

• Conduct: The conduct of the TTC defendants is a significant factor. The volume of the refusals that were given by Messrs. Manherz, Ashbourne and Cerqueira during their initial round of discovery and that have now been either answered or ordered answered makes another significant round of discovery of each of them necessary. The initial round of discovery of these defendants appears to have been to a significant extent an exercise in posing relevant questions that were not answered. When the answers are finally given, Ms. Frances should have the opportunity to explore these answers with follow-up questions.

The same point applies to all the undertakings, as there were many undertakings that were given by these defendants and that were then not adequately answered, as noted above. I also note that there have been several affidavits of documents from the TTC defendants. There was one in 2015, others in 2016, and another two this year during the pendency of this motion. This staggered and delayed production only adds to the need for a fulsome further discovery. Proper documentary production prior to discovery is required to make the discovery process meaningful; see Davies v. Corporation of the Municipality of Clarington, 2010 ONSC 6103 at paragraph 13.

• Time needed: The conduct of the TTC Defendants also gives an insight as to how much time is reasonably required for the discovery of those defendants. Although I have found no agreement between the parties on this issue, I am satisfied that in October, 2013 the TTC Defendants were prepared to accept limits of seven hours for each of them. Mr. Townsend argued that Ms. Ferreira did not understand Rule 31.05.1 when she made her statement on the record at the Ashbourne discovery on October 2, 2013. I do not accept that argument. There was no evidence in the motion from Ms. Ferreira other than what appears on the transcript. By October 2, 2013 Rule 31.05.1 had been in effect for three years.

The transcript indicates to me that, at the time Ms. Ferreira made her statement, the discovery of Mr. Ashbourne had already exceeded the seven hour limit and that Ms. Ferreira was trying to implement the seven hour limit in relation to Mr. Ashbourne only having accepted a seven hour limit for each of Mr. Manherz, Mr. Cerqueira and Ms. Stafford. She made this statement despite Mr. Romain not having asked for that amount of time. In his draft discovery plan of September 27, 2013, Mr. Romain specified from 3 to 4 hours for each of these defendants. This all happened at a time when this case was not as contentious as it is now and did not have as many documents, undertakings and refusals that it has now. In my view, it reflected a fair assessment by counsel of what time was really needed. I note that when the parties resumed the discoveries of the defendants in October, 2019 they conducted themselves in accordance with Ms. Ferreira's plan by proceeding with the discoveries of Messrs. Cerqueira and Manherz without an issue of time limit.

• Fairness: There is an imbalance to Rule 31.05.1(1) in a case such as this where there is one plaintiff and several defendants. This was noted by Justice Glustein in Osprey Capital Partners v. Gennium Pharma Inc., 2010 ONSC 2338 (ONSC) at paragraph 53. The rule gives each of the seven named defendants a right to examine Ms. Frances for seven hours. This is a total of 49 hours, while Ms. Frances is limited to only 7 hours for all the defendants.

To correct this imbalance the limits stated by Ms. Ferreira on October 2, 2013 make sense. At seven hours per defendant the total discovery time for all the defendants would be the same 49 hours. I note that Ms. Frances has used just over 20 hours to date. That leaves a remainder of 29 hours, and Ms. Frances is only asking for a total of another 26 hours with the TTC Defendants. She does not ask for time with the TPSB. This seems reasonable and fair, particularly given the issues, complexity and amount at stake.

• Abrams limit: I note that Master Abrams was asked on November 13, 2015 to grant Ms. Frances an additional seven hours with Mr. Ashbourne, and that Ms. Frances obtained only 1.5 hours. However, I note that Mr. Ashbourne had given a minimal number of refusals and only 14 undertakings in his discovery to that point. However, when Mr. Ashbourne's discovery resumed on October 21, 2019 the discovery took on a very different tone. There was suddenly a river of refusals from Mr. Ashbourne, namely 57 over a period of 2 hours and 14 minutes. In my view, this rendered Master Abrams' limit meaningless and unfair.

• Stafford: Julie Stafford has not been discovered for various reasons. She was the adjuster at the TTCIC who was responsible for Ms. Frances' accident benefits application. Mr. Ashbourne investigated the claim and reported to Ms. Stafford. This is the investigation led to the allegations of fraud against Ms. Frances that the TTC does not now want to pursue. Given the history of the other discoveries and the number of undertakings and refusals that were generated there, I have no difficulty granting Ms. Frances the seven hours she requests to discover Ms. Stafford, not the three hours offered by the TTC defendants.

[21] Mr. Townsend argued for his schedule. He asserted that Mr. Romain was not properly prepared for his discoveries of the TTC Defendants. I saw no evidence of that based on my review of the transcripts, particularly given the many undertakings, groundless refusals and the incomplete production of the TTC Defendants. Mr Townsend criticized Mr. Romain for cancelling the discovery in 2019. That happened because of a health issue and I place no weight on that point. Mr. Townsend argued that his interventions were reasonable and necessary to deal with irrelevant questions. I disagree. Based on my review of the transcripts and my determination of the merits of the many refusals Mr. Townsend counselled, I believe that his interventions were largely not reasonable.

[22] I, therefore, rule that Ms. Frances is entitled to further discoveries of the following defendants with the following time limits:

• Paul Manherz: 7 hours;

• Peter Ashbourne: 5 hours;

• Anthony Cerqueira: 7 hours;

• Julie Stafford: 7 hours.

[23] The final question is whether Messrs. Manherz, Ashbourne and Cerqueira must reattend to complete their discoveries at their own expense. I understand that this expense is the cost of the special examiner. This relief is not being asked of Ms. Stafford as she has not been discovered.

[24] This request engages Rule 34.15(1)(a) which states amongst other things that where a party refuses to answer proper questions or refuses to produce documents he or she is required to produce, the court can order that person to reattend to be examined at his or her own expense. That rule would certainly apply to Messrs. Manherz, Ashbourne and Cerqueira given the huge number of refusals they gave that have now been either answered or ordered to be answered. The number of their undertakings that were inadequately answered bolsters this conclusion.

[25] What gave me pause is the absence of a discovery plane and the dispute the parties had over the time limits in Rule 31.05.1. This dispute led to the termination of the Ashbourne discovery. Mr. Romain could have moved for an order for a discovery plan to put this issue to rest. He never did.

[26] However, I have decided that this issue does not merit resiling from the implementation of Rule 34.15(1)(a) as quoted above. As stated earlier, by their conduct, the parties deviated from the limits imposed by Rule 31.05.1 as early as the Ashbourne discovery on October 1 and 2, 2013. Mr. Ashbourne's discovery at that time exceeded the global seven hour time limit for discovering the defendants. Ms. Ferreira's statement on the record was, as I have stated, evidence of a fair assessment of what time was really needed. When the parties resumed the discoveries of the TTC Defendants in October, 2019, they continued despite the absence of a discovery plan or an agreement on time limits. They essentially acted in accordance with Ms. Ferreira's plan. The Manherz discovery started and was ended by Mr. Manherz himself without objection due to a daycare appointment. The Cerqueira discovery was completed. The time limit issue was confined to the Ashbourne discovery, and I have already ruled that that discovery was hampered by the conduct of Mr. Ashbourne.

[27] As a result, due primarily to their large number of refusals that have now been answered or ordered to be answered, I rule that Messrs. Manherz, Ashbourne and Cerqueira must attend to complete their discoveries at their own expense.

Costs

[28] Concerning costs, counsel agreed to exchange costs outlines by July 8, 2021. Ms. Frances appears to be the successful party on this portion of the motion and appears to deserve costs.

[29] If the parties cannot agree on costs, Ms. Frances must deliver written submissions on costs of this portion of the motion of no more than three pages on or before August 26, 2021. The defendants must deliver their written submissions on costs of no more than three pages in response on or before September 7, 2021. Ms. Frances may deliver a reply written submission of no more than one page on or before September 10, 2021. I will then rule on costs.

DATE: August 16, 2021

MASTER C. WIEBE