COURT FILE NO.: CV-18-608857
DATE: 2021 08 20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GAETANO SARTA, Plaintiff
- and -
ALISA MAZO, MAZO CHOWBAY Barristers & Solicitors, and ALISA MAZO PROFESSIONAL CORPORATION, Defendants
BEFORE: Master Todd Robinson
COUNSEL: D. Wilson, for the plaintiff
J. Van Allen, for the defendants
HEARD: July 27, 2021 (by videoconference)
REASONS FOR DECISION
[1] Gaetano Sarta is suing his former lawyers for breach of contract and negligence in handling his claims arising from a motor vehicle accident. Specifically, Mr. Sarta alleges that he was given negligent advice about settling his tort and accident benefits claims and that the settlements were negotiated without instructions. He further alleges that, when settling his accident benefits claim, he was not told that a limitations period had been missed.
[2] Despite three years of litigation, documentary discovery is not yet complete, at least not in Mr. Sarta’s view. The defendants feel they have complied with their production obligations. Mr. Sarta says they have not. The parties disagree on the scope of relevance. Mr. Sarta seeks to compel a further and better affidavit of documents before the examinations for discovery scheduled in September.
[3] I am ordering that the defendants serve a further and better of affidavit of documents, but only with respect to documents about legal billing and accounting and communications with the two insurers about settlement of the tort and accident benefit claims.
Analysis
[4] Mr. Sarta moves under Rule 30.06 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). It provides the court with discretion to order a further and better affidavit of documents where the court is satisfied that a relevant document in a party’s possession, control or power may have been omitted from that party’s affidavits of documents.
[5] The principles I must consider on this motion are set out in Gamble v. Black & McDonald Limited, 2020 ONSC 811 (Master), at paras. 3-4. Parties are generally left to make the initial decision about what documents to produce themselves. Where there is evidence of missing documents, though, a motion for a further and better affidavit of documents is proper. There must be evidence that specific documents exist that have not been produced. Evidence that amounts to intuition, speculation and guesswork is insufficient. Also, simply identifying the existence of documents is not enough. The missing documents must meet the test of relevance under the Rules and must also satisfy the proportionality requirements of Rule 29.2.03. No arguments on proportionality were made on this motion.
[6] Mr. Sarta’s position is that a variety of relevant and producible documents have not been listed in the defendants’ affidavit of documents. Broadly speaking, they fall into four categories:
(a) correspondence produced by Mr. Sarta at Tabs 1-21 and 44-53 of his own affidavit of documents;
(b) documents about legal billing and accounting on Mr. Sarta’s litigation files;
(c) internal documents produced by the defendants during the course of the retainers by Mr. Sarta; and
(d) communications with the insurers about settlement of Mr. Sarta’s tort and accident benefits claims.
[7] The defendants have filed no responding materials, other than a factum. Their general position on relevance is straightforward: the sole issues in dispute are about the reasonableness of the tort and accident benefits settlements and the only documents relevant to assessing the reasonableness of those settlements are the medical records and reports that have already been produced. Mr. Sarta argues that view is too narrow given the allegations made in the statement of claim. For the most part, I agree with Mr. Sarta. However, I do not agree with Mr. Sarta’s position that essentially every document in the defendants’ file(s) is relevant based on the pleadings.
[8] Since the issues in each category of documents are different, I deal with each of them separately.
Correspondence produced by Mr. Sarta
[9] Correspondence between plaintiff’s counsel and Alisa Mazo has been produced at Tabs 1-21 of Mr. Sarta’s affidavit of documents. Further correspondence with the Law Society of Ontario (“LSO”) has been produced at Tabs 44-53. None of this correspondence is included in the defendants’ affidavit of documents.
[10] On the record before me, I find no basis to grant any relief regarding the correspondence. I cannot determine if it is relevant. Little, if any, of it is before me. All I have is the generic descriptions of the documents included in Mr. Sarta’s affidavit to documents. The nature of the correspondence is not in evidence.
[11] The fact that correspondence was exchanged between Mr. Sarta’s counsel and Ms. Mazo does not itself support relevance of the contents of those letters. If the first three exhibits of the legal assistant’s affidavit are among the documents at Tabs 1-21, they deal with document requests and, in my view, are not relevant to any disputed issue in this litigation. There is no further evidence on the rest of the correspondence.
[12] There is similarly no evidence on the contents of the correspondence with the LSO, which relates to a complaint made by Mr. Sarta. Neither the complaint nor the LSO’s disposition of the complaint are pleaded. No argument was made about relevance, absent which it is unclear to me how these communications with the LSO are relevant to determining any disputed issue.
Legal billing and accounting documents
[13] Mr. Sarta alleges that statements of account rendered to him and ledgers that ought to have been maintained with respect to his files have not been produced. I am satisfied that these documents exist and have not been produced.
[14] With respect to the statements of account, under cover of letter dated July 21, 2021, defendants’ counsel sent copies of two statements of account dated August 10, 2015 and March 28, 2018 to Mr. Sarta’s counsel. That letter acknowledges Mr. Sarta’s entitlement to the documents as part of the file, but without acknowledging relevance.
[15] With respect to ledgers and accounting records, I accept and take judicial notice that the LSO’s by-laws set minimum requirements for books and records to be maintained by lawyers and that lawyers ordinarily comply with those minimum requirements. Client ledgers, disbursement journals, and other accounting records are reasonably required to comply with those requirements. There is nothing before me to suggest that these required accounting records were not kept by the defendants.
[16] Notwithstanding the defendants’ position on this motion, legal billing to Mr. Sarta is clearly a relevant issue based on the pleadings. Challenges to legal billing by the defendants are expressly pleaded at paras. 44-47 of the statement of claim. These paragraphs dispute various fees and disbursements invoiced for legal services, including the propriety of expressly particularized fee and disbursement charges. Mr. Sarta specifically asserts, at para. 44, that the defendants are not entitled to any remuneration and requests a declaration that all amounts paid be reimbursed. In the fresh as statement of defence, at paras. 3T-3V, the defendants allege that their fees and disbursements are justified.
[17] Documents supporting the legal fees and disbursements charged to Mr. Sarta, including client file ledgers and accounting records, are relevant and must be produced.
Internal documents
[18] Mr. Sarta seeks production of documents with instructions to the defendants’ law clerks and staff about steps in the proceedings and memoranda to file. The legal assistant swearing the supporting affidavit on this motion says that “in all likelihood” and “more than likely” these documents exist. No other evidence has been tendered that these specific documents do, in fact, exist. I am essentially being asked to take judicial notice that lawyers always have written instructions to staff and keep memoranda about matters such as claim assessments in their client files. That is not the same as asking me to take judicial notice of what accounting documents are required by the LSO’s by-laws and are ordinarily maintained by lawyers.
[19] The language of “in all likelihood” and “more than likely” is inherently language of intuition, speculation, or guesswork. In this case, the legal assistant speculates, and Mr. Sarta argues, that there must be relevant written instructions or memoranda to file that have not been produced. I am not satisfied that Mr. Sarta has met his onus of demonstrating that, on a balance of probabilities, they do exist. I am accordingly not prepared to make any order at this time that a further and better affidavit of documents be delivered for the requested internal documents.
[20] Nevertheless, I share Mr. Sarta’s suspicion that such internal documents likely exist, so I feel compelled to address the issue of relevance. I agree with Mr. Sarta that both internal instructions to law clerks and staff on steps to advance Mr. Sarta’s claims and memoranda to file dealing with issues such as the merits of Mr. Sarta’s claim, medical documentation available and that should be sought, limitations periods, and settlement options or recommendations are relevant based on the pleadings. Relevance is supported by at least paras. 12-15, 18-20, 25, 29, 31-33, 36-38, and 42 of the statement of claim, which outline allegations of what the defendant knew or ought to have known about Mr. Sarta’s condition and circumstances and what documents ought to have been obtained, and paras. 3B-3D, 3F, 3L, and 3S of the fresh as amended statement of defence, which outline the position of the defendants that they obtained and considered all relevant information and documents.
[21] If these kinds of internal documents are or have been in the possession, control, or power of the defendants, then they ought to have been disclosed in the defendants’ affidavits of documents in either Schedule A or Schedule C. Should discovery evidence support that the defendants have, in fact, failed to comply with their production obligations in Rules 30.02 and 30.03 of the Rules, and thereby impeded Mr. Sarta’s preparation for oral examinations, that may well support both relief at a later date and costs against the defendants.
Settlement documents
[22] Mr. Sarta seeks further production of documents generated about settlement of his tort claim and accident benefits claim.
[23] With respect to the tort claim, the undisputed evidence is that only one relevant document is disclosed in the defendants’ affidavit of documents: a letter to Security National Insurance Company dated June 4, 2015 with a settlement offer. However, Mr. Sarta has filed relevant documents obtained from the insurer’s file that are not in the defendants’ affidavit of documents: a without prejudice letter from the insurer dated December 12, 2014 requesting various documents and the defendants’ correspondence to Medex Assessments Inc. dated April 1, 2015 requesting clinical note and records. Both are documents that that are or would have been in the possession, control, or power of the defendants.
[24] The letter dated April 1, 2015 was produced by defendants’ counsel after this motion was brought under cover of letter dated July 21, 2021, without acknowledging relevance. As already discussed, what the defendants knew or ought to have known about Mr. Sarta’s condition and circumstances and what documents were obtained and ought to have been obtained is a live issue. If Security National Insurance Company has a copy of the defendants’ request letter in its file, that letter must reasonably have been provided to it by the defendants (likely in response to the insurer’s document request). Regardless, the two letters support the existence of additional correspondence with the insurer preceding the settlement that have not been produced.
[25] With respect to the accident benefits claim, I am satisfied that relevant documents exist and have not been produced. The defendants have produced fax correspondence to Mazo Chowbay from Certas Home and Auto Insurance Company dated August 31, 2017, stating, “We are in receipt of your August 22, 2017 letter with enclosed settlement proposal of $41,193.66, thank you. A response will be provided shortly.” However, the referenced letter and settlement proposal have not been produced. They are evidently documents that are or would have been in the possession, control, or power of the defendants. Since there is no responding affidavit, no explanation for failing to produce the referenced letter and settlement proposal has been provided.
[26] Providence of both settlements is a core disputed issue in this litigation, one that is acknowledged by the defendants. I do not accept the defendants’ argument that only the ultimate settlement is relevant. I agree with Mr. Sarta that all documents regarding the settlement negotiations, including correspondence and offers exchanged with the insurers, are relevant. Relevance is supported by paras. 16-17, 20, 31-32, and 40-41 of the statement of claim. These unproduced documents currently or formerly within the possession, control, or power of the defendants ought to have been disclosed in their affidavit of documents.
Disposition
[27] I accordingly order as follows:
(a) The defendants shall serve a further and better affidavit of documents within thirty (30) days, which shall include the following documents:
(i) all documents supporting the legal fees and disbursements charged to Mr. Sarta, including client file ledgers and other accounting records;
(ii) all correspondence and settlement offers exchanged with Security National Insurance Company and all notes and memoranda regarding communications with Security National Insurance Company regarding settlement of Mr. Sarta’s tort claim; and
(iii) all correspondence and settlement offers exchanged with Certas Home and Auto Insurance Company and all notes and memoranda regarding communications with Certas Home and Auto Insurance Company regarding settlement of Mr. Sarta’s tort claim.
(b) The balance of Mr. Sarta’s motion is dismissed without prejudice to moving again following examinations for discovery.
(c) This order is effective without further formality.
Costs
[28] Costs outlines have been exchanged and filed. The parties are encouraged to settle costs. If they cannot, then they may book a thirty (30) minute case teleconference with me to make oral submissions as to costs, to be arranged through my Assistant Trial Coordinator, Christine Meditskos. Each side will be entitled to ten (10) minutes for their submissions, with five (5) minutes of reply. Any case law relied upon shall be exchanged and filed directly with my Assistant Trial Coordinator at least five (5) days prior to the case teleconference.
[29] Unless a case teleconference has been booked (but not necessarily heard) within thirty (30) days of the date of these reasons for decision, the parties shall be deemed to have agreed on costs.
MASTER TODD ROBINSON
DATE: August 20, 2021