COURT FILE NO.: CV-20-857

DATE: 20210901

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Annie Rheaume, Plaintiff

AND:

Jordon Foster and Ian Frost, Defendants

BEFORE: The Honourable Justice C. Boswell

COUNSEL: Aman Kalra for the Plaintiff

Grant D. Bodnaryk for the Defendants

HEARD: August 26, 2021 by Zoom Videoconference

ENDORSEMENT

The Motion

[1] This proceeding involves two features that are not often seen in this court: (1) a motor vehicle accident claim seeking damages for pain and suffering, attendant care, rehabilitation and income loss brought under the Simplified Rules; and (2) an argued motion over a discovery plan in a Simplified Rules proceeding.

[2] “Discovery” is a term used to describe the exchange of information between parties engaged in civil litigation. It encompasses the disclosure of relevant documents, the oral examination of adverse parties under oath or affirmation, the inspection of property and, on occasion, medical examinations.

[3] Pursuant to r. 29.1 of the Rules of Civil Procedure, parties are to agree to a discovery plan within, at the latest, 60 days of the close of pleadings.

[4] Discovery plans are essentially agreements about how the discovery process will be managed. They are to include, amongst other things, the intended scope of documentary disclosure, the timing of the exchange of Affidavits of Documents, the identity of persons to be produced for oral examinations and information on the timing and length of examinations for discovery.

[5] The intent of r. 29.1 is reflected in r. 29.1.03(e). It is intended to promote “the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action.”

[6] This action was commenced by the plaintiff on May 4, 2020. It arises from a motor vehicle accident that allegedly occurred in Oshawa on May 6, 2018. The plaintiff seeks damages of $200,000 – the ceiling for Simplified Rules cases – relating to injuries she says she suffered in the collision.

[7] The claim was served on at least one of the defendants in late October 2019. There is apparently an issue about whether the second defendant was ever properly served, but that is neither here nor there for the purposes of this motion.

[8] Almost two years have passed since the claim was served. Nothing of any real consequence has occurred to move the matter forward towards a final disposition. Counsel have been unable to agree on a discovery plan. Each side accuses the other of being, to put it delicately, “difficult”.

[9] The defendants bring this motion asking the court to impose a discovery plan on the parties.

The Issues

[10] Counsel exchanged proposed discovery plans with one another between late November 2020 and late January 2021. The defendants are prepared to accept the plaintiff’s proposed discovery plan with two exceptions. The exceptions are at the heart of this motion.

[11] The defendants seek, and the plaintiff resists, production of the following records prior to oral examinations proceeding (going forward I will refer to these documents as “the Disputed Productions”):

(a) a decoded OHIP summary going back 7 years;

(b) the plaintiff’s file from the collision reporting center;

(c) the plaintiff’s property damage file with photographs;

(d) the complete SABs file with a payment summary;

(e) confirmation as to whether the plaintiff remains in the minor injury guideline;

(f) the records from Active Rehab Clinic;

(g) records, if any exist, from Oshawa Physiotherapy and Rehabilitation Centre;

(h) records of the plaintiff’s pre-accident physiotherapy;

(i) the plaintiff’s employment file with the Durham Catholic District School Board from April 2014 to the present; and,

(j) an Affidavit of Documents with a completed Schedule “D”.

[12] The defendants also seek, and the plaintiff resists, a requirement that the plaintiff bear the upfront cost of obtaining and disclosing any relevant documents in her possession, control or power, including the Disputed Productions.

[13] The defendants’ Notice of Motion is admittedly deficient. It asks for the following relief:

(a) An order imposing cost provisions into the plaintiff’s discovery plan;

(b) An order that the plaintiff’s lawyer produce a copy of the letter and requisition he purportedly sent to the court’s filing office in November 2020 requesting that the defendants be noted in default; and,

(c) Costs.

[14] The motion, as argued, requires the court to make the following determinations:

(i) Should the court address the defendants’ request for an order that the Disputed Productions be disclosed prior to examinations for discovery despite the way its Notice of Motion is framed?

(ii) If the request for the Disputed Productions is entertained, should the court order the plaintiff to obtain and disclose them prior to oral examinations?

(iii) Should the court impose a provision in the plaintiff’s proposed discovery plan that requires each party to bear the up-front cost of obtaining and disclosing their respective productions?

(iv) Should the court compel the plaintiff to produce a copy of counsel’s requisition to note the defendants in default?

[15] I will address the live issues in turn.

Issue One: The Request for the Disputed Productions Part I

[16] The defendants did not specifically ask in their Notice of Motion for an order that the Disputed Productions be disclosed prior to discoveries. For that reason, the plaintiff’s counsel urges the court to reject any request for that relief now. The defendants’ counsel says that the failure to ask for the disclosure of the Disputed Productions was inadvertent and asks that the court take a generous view of the motion and permit them to raise the issue notwithstanding the way the Notice of Motion is framed.

[17] I am prepared to consider the motion as though it specifically sought an order for disclosure of the Disputed Productions. There are three reasons that support this decision.

[18] First, in my view it is readily apparent that the failure to specifically request this relief in the Notice of Motion was inadvertent. In the grounds for the motion, the defendants have set out their request for disclosure of the Disputed Productions and have explained why they believe that relief ought to be granted.

[19] Moreover, in their Factum, the defendants particularize the relief they are requesting as including the following:

[An order] directing that the Plaintiff shall make best efforts to obtain and produce the 11 productions described in the Motion Record, within 60 days of the date of this order and prior the Plaintiff being examined for discovery.

[20] Second, the plaintiff is not prejudiced by permitting the defendants to seek disclosure of the Disputed Productions on this motion. She has had ample notice that the defendants were seeking those documents and intended to address the issue on this motion. Her counsel was able to – and did – make submissions about the Disputed Productions during oral argument.

[21] Third, the court is directed by Rule 1.04 of the Rules of Civil Procedure to liberally construe the Rules in order “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” This is a Simplified Rules case. The amount claimed is modest, yet the issues raised in the pleadings will be difficult to litigate in an economically efficient way. The less expense incurred on interlocutory skirmishes, the better.

[22] In my view, I am able to determine the issue of disclosure of the Disputed Productions on this motion in a just and fair manner. It is in the interests of efficiency and justice to determine the issue now, rather than to leave the dispute in limbo, which may well result in a further motion down the road.

Issue Two: The Request for the Disputed Productions Part II

[23] The defendants’ counsel advised that they have now received the plaintiff’s SABs file and her Affidavit of Documents, including Schedule “D”. Disclosure of the balance of the Disputed Productions remains a live issue.

[24] For the reasons that follow, I direct the plaintiff to use her best efforts to obtain and disclose the Disputed Productions sought by the defendants prior to oral examinations proceeding.

[25] Discovery is at the heart of the civil justice system. Fulsome disclosure by each litigant of all relevant documents in their possession, control or power is a precondition to a fundamentally fair trial. As Carthy J.A. observed in General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321, [1999] O.J. No. 3291 (C.A.) at para. 25, “the modern trend is in the direction of complete discovery.”

[26] A number of the Rules reinforce the goal of complete discovery, including r. 29.1 which I referred to earlier. In the context of Simplified Rules cases, Rule 76.03 requires each party to serve an Affidavit of Documents on all other parties within 10 days of the close of pleadings. Rule 76.09(1) requires the parties to consult one another, in person or by telephone, within 60 days of the filing of the first defence, to consider whether all documents relevant to any matter in issue have been disclosed.

[27] Documentary discovery is informed and constrained by the principles of relevance, materiality and proportionality.

[28] Relevance and materiality are functions of the issues raised in the pleadings, the parties’ positions in relation to those issues and the applicable substantive law. Proportionality involves an assessment of the time, effort and cost involved in obtaining and producing documentation, relative to the amount claimed in the proceeding and the importance and complexity of the issues involved.

[29] Having reviewed the defendants’ list of Disputed Productions, I am satisfied that each is clearly relevant to the issues raised in the pleadings and the applicable substantive law. Nothing in the enumerated list strikes me as particularly disproportionate to the live issues and the value of the claim. Indeed, their production strikes me as inevitable and par for the course in an action of this nature. See, for instance, Duggan v. Lakeridge, 2017 ONSC 1474.

[30] The plaintiff’s counsel argued that the plaintiff has already made robust disclosure. He contends that the defendants have more than enough disclosure to know the case they have to meet. He believes the parties should get on with oral examinations and through that process the real relevance of the Disputed Productions will become clear. Any further productions can, he submits, be addressed through undertakings given during the course of oral examinations should it become clear that one or another of the Disputed Productions is relevant and its production proportionate.

[31] I am not persuaded by the plaintiff’s position. The defendants’ entitlement to disclosure is not limited by the amount necessary to enable them to know what case they have to meet. They are entitled to the disclosure mandated by the Rules.

[32] Despite the disclosure made by the plaintiff to date, there remain significant, relevant documents outstanding. The relevance and proportionality of those documents is readily determinable at this stage.

[33] Of particular significance, in my view, is the fact that parties are limited by Rule 76.04(2) to three hours of oral discovery. It is imperative that the examiner be well-prepared and focused. Proper preparation requires that each party have as much disclosure as possible of relevant documentation prior to the examinations proceeding. Not only will timely disclosure of the Disputed Productions improve the quality and efficiency of oral examinations, it will also enhance the prospects of resolution.

[34] In my view, the interests of justice point strongly towards the disclosure of the Disputed Productions prior to oral examinations proceeding.

Issue Three: The Cost of Productions

[35] The defendants argue that they are seeking only “run-of-the-mill” documents that are routinely produced in motor vehicle accident cases. Documents of this nature, they say, should ordinarily be obtained and produced by plaintiffs. They submit that the prevailing jurisprudence supports their position: that plaintiffs should be required to obtain and produce, at their own expense, documents that are routinely and reasonably produced in motor vehicle cases.

[36] The plaintiff disagrees. Her counsel submits that while she is obliged to produce documents in her possession at her own expense, she is not required to cover the cost of the defendants’ investigation into her case. The plaintiff argues that the cost of obtaining production of medical records can be significant and can impede access to justice.

[37] The jurisprudence appears to be unsettled on the issue.

[38] The defendants rely on the decision of Sloan J. in Trumble v. Soomal, 2020 ONSC 8097. Trumble was a motor vehicle accident claim. The amount in issue was about $175,000. The court was, as here, asked to determine which party was obliged to pay for medical reports and records in a personal injury action.

[39] Sloan J. described the documents in issue as “the somewhat normally requested documentation” in a personal injury case, which included “the records of all doctors, treatment providers and hospitals, the decoded OHIP summary and a copy of the AB file.” In other words, documents similar to the ones in issue here.

[40] Sloan J. went on to express dismay that the jurisprudence remains unclear regarding who should bear the cost of obtaining and producing routine medical and work records in personal injury actions. He observed that in all personal injury litigation, the plaintiff’s pre-accident history is “automatically” brought into question. Plaintiffs will, accordingly, know what documents they are going to have to produce in relation to their claims.

[41] Sloan J. concluded that in “run-of-the-mill” personal injury actions, documents of the type in issue in Trumble were routine and reasonable and should be produced at the expense of the plaintiff.

[42] The plaintiff argues that Trumble was wrongly decided. She submits that there is no fixed rule, either in the Rules of Civil Procedure or in the common law, that requires a plaintiff to fund a defendant’s requests for production of documents connected with its investigation of the plaintiff’s claim.

[43] In Duggan v. Lakeridge, as above, my colleague, Edwards J. – now R.S.J. Edwards – took an approach similar to that advocated by the plaintiff. He was tasked with allocating the cost of obtaining and producing fairly routine medical records in a personal injury action. He held that “both the time and cost of obtaining the documents should be easily shifted to the party seeking the disclosure. I see no good reason why the plaintiff should shoulder this burden.”

[44] It must be noted that Duggan was not a Simplified Rules case. Neither, apparently, was Trumble, despite the modest value of the claim.

[45] It is unnecessary for me attempt to resolve any inconsistencies in the case law as it relates to the cost of disclosure in actions proceeding under the ordinary Rules. I will, however, observe that the Rules are silent as to the costs of disclosure in such cases.

[46] Rule 30.03, in particular, requires each party to an action to serve on all others, an Affidavit of Documents disclosing all documents relevant to any matter in issue that are or have been in the party’s possession, control or power. The rule is silent as to the costs associated with disclosure and production.

[47] Rule 29.1.03, as I noted, requires the parties to agree to a discovery plan, which includes a provision for the timing, costs and manner of production of documents. The wording of this rule suggests that the costs of production is an open issue to be discussed and agreed upon between the parties.

[48] By contrast, the Simplified Rules do make express provision for the costs of disclosure.

[49] Rule 76.03(1) provides as follows:

A party to an action under this Rule shall, within 10 days after the close of pleadings and at the party’s own expense, serve on every other party,

(a) an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power; and

(b) copies of the documents referred to in Schedule A of the affidavit of documents.

(Emphasis added)

[50] The plaintiff’s counsel drew a distinction between the cost of productions actually in the possession of a party and the cost of seeking and producing additional relevant documents.

[51] In my view, such a distinction is untenable. The rule expressly requires each party to disclose all relevant documents in their possession, control or power and to produce copies of those documents to all other parties.

[52] Rule 30.01(1)(b) provides that “a document shall be deemed to be in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.” Each of the Disputed Productions is just such a document.

[53] In my view, r. 76.03 carries the day. By virtue of that rule, the plaintiff is presumptively required to obtain and disclose the Disputed Productions at her own expense.

Issue Four: The Requisition to Note Default

[54] I advised counsel at the outset of the motion that I had no intention of entertaining the defendants’ request that the plaintiff’s counsel be compelled to produce a copy of any letter or requisition he submitted to the court to note the defendants in default.

[55] This request has no value in this litigation. The defendants were not noted in default. A defence has been filed. The case is inching forward. Any request to note the defendants in default is simply not relevant to any of the live issues in the litigation. It may have some bearing on the hard feelings between counsel. But the court should not be drawn into that swamp. If the defendants think there is some value to them in obtaining a copy of the requisition to note them in default, they can attend at the court office and request a copy.

Conclusions

[56] This motion was disappointing. As Edwards J. observed in Duggan, proceedings in this court should adhere to the “Three C’s”: cooperation, communications and common sense. This case is terribly short on C’s. Clearly the disclosure process has not been expeditious or cost-effective.

[57] A discovery plan is imposed in accordance with the plaintiff’s draft plan which is found at Appendix “A” hereto, with two changes:

(a) The scope of documentary discovery is to include disclosure by the plaintiff of the Disputed Productions; and,

(b) The cost of obtaining and making disclosure shall fall to the party whose affidavit of documents ought to have contained the productions in issue. Without limiting the generality of the foregoing, that means that with respect to the Disputed Productions, the plaintiff shall bear the cost of obtaining and disclosing them.

[58] The defendants were by and large successful on the motion. They shall have their costs fixed at $2,500 all inclusive and payable by the plaintiff within 30 days.

Boswell J.

Date: September 1, 2021

Appendix "A"

Court File No.: CV-20-00000857-0000

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNIE RHEAUME

Plaintiff

• and -

JORDAN FOSTER and IAN FROST

Defendants

DISCOVERY PLAN

Preamble

The parties to this action, through their respective lawyers, or themselves, agree:

a. to documentary and oral discovery of this matter and action;

b. that this discovery agreement sets out the parties’ formal agreement with respect to certain discovery issues addressed at their meetings/discussions;

c. that this discovery agreement is intended to serve as the parties’ discovery plan for the purposes of compliance with Rule 29.1.03 of the Rules of Civil Procedure.

The purpose of the agreement is:

a. to prepare a joint plan for the preservation, production and use of documents, including electronically stored information and for all discovery in the action;

b. to ensure an effective discovery process, taking into account relevance, costs and the importance and complexity of the issues in this action; and

c. to save time and expenses required for the parties to comply with their discovery obligations.

Protocol

Subject to the terms of this agreement, the parties agree to adhere voluntarily to the following protocol, guidelines and practice directions or any other document regarding the preservation, production or use of all electronically stored information or information garnered otherwise in litigation proceedings.

Discovery Rights Otherwise Not Affected

Except as provided in this agreement, nothing in this agreement takes away from the legal rights of the parties with respect to documentary and oral discovery in the action; or the right of any party to and before the Court for enforcement of those rights.

Unless expressly specified, nothing in this agreement affects the legal obligation of each party to take reasonable steps to preserve, disclose and produce any document in the party's possession, power or control if the party knows of its existence and knows it is relevant to the action.

Exchange of Documents Between Parties Via Electronic Media

The parties agree that in terms of electronic media, documents will be produced in word format, or as a PDF file. The parties agree to exchange all producible electronically stored information in electronic form. The parties agree to produce any photographs in their originally created file format and data.

Subject to any agreement to the contrary, the reasonable costs incurred to comply with this agreement, including reasonable costs of retaining or using necessary external or in-house technical consultants may be claimed as costs of and incidental to a proceeding, or a step in a proceeding for purposes of section 131 of the Court of Justice Act.

Meeting Without Prejudice

The parties agree that, except as expressly recorded in this agreement, all communications made in connection with this agreement were exchanged on a without prejudice basis and may not be relied upon in the action.

Scope of Documentary and Oral Discovery of the Parties

The parties agree that the following scope of documentary and oral discovery shall be applicable to each party.

Scope of Documentary/Oral Discovery of the Plaintiffs

Background information, including name, date of birth, addresses, education, from 3 years pre-incident to the present.

Income and employment information, if claimed, from 3 years pre-incident to the present.

Medical information from 3 years preincident to the present.

Collateral Benefits.

Family Law Act claims, if any.

Circumstances of liability as per the pleadings in this action

Scope of Documentary/Oral Discovery of the Defendant

Circumstances of liability as per the pleadings in this action.

Timing, cost and manner of production of documents

$0.35/page.

Draft affidavits of documents and schedule “A” productions to be exchanged 7 days prior to the examinations for discovery.

Sworn affidavits of documents to be served at each respective parties’ examination for discovery.

Delivery of other relevant productions upon request/as per the Rules.

Names of persons to be produced for oral examination

In the case of an individual party, the party themselves shall be examined.

In the case of a corporate party, that party, or its counsel, shall, 60 days before discovery, provide the name of the representative being produced on the corporate party’s behalf.

Time and length of oral examinations

Up to 3 hours of questioning by each counsel, for all parties being questioned by that counsel

Signature

This agreement may be signed by the parties or by the party's solicitor on their behalf.

Date: January 27, 2021

MacIsaac Gow LLP

Matthew C. MacIsaac

Lawyers for the Plaintiff

Date:________________________

Van Arnhem & Associates

Grant D. Bodnaryk

Lawyers for the Defendants