Issa v. El Kesserwani, 2021 ONSC 6314

Court File and Parties

COURT FILE NO.: CV-16-69706

DATE: 20210924

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mohamed Issa, Plaintiff

AND

Sami El Kesserwani, Defendant

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Anastasia Sukalsky, for the Plaintiff

Douglas Treilhard, for the Defendant

HEARD: August 3, 2021

ENDORSEMENT

1The defendant seeks an order requiring the plaintiff to answer two questions he refused to answer at his examination for discovery.

2The plaintiff’s action is for injuries sustained in a 2015 car accident. In his statement of claim, he seeks $1 million in general damages and a further $1 million in special damages. He will be taking or has already taken steps to amend his claim to seek damages for future care costs and housekeeping of $12 million and damages of $2 million for loss of income. The plaintiff pleads that he suffered both mental and physical injuries as a result of the accident.

Question #1: Will you request and produce the complete file of Augsburg University, including any treatment records?

3The plaintiff’s counsel contacted Augsburg College and was informed that any medical records relating to the plaintiff would have been destroyed some time ago.

4The remaining issue is whether the plaintiff’s academic records are relevant.

The defendant’s position

5The defendant argues that the report prepared by the plaintiff’s loss of income expert assumes that the plaintiff has a degree in computer science. The defendant says there is no documentary evidence in support of this assumption. The plaintiff has produced a copy of a degree from Augsburg College which states that a Bachelor of Arts degree was conferred on Mohamed A. Essa (not “Issa” as the plaintiff’s name is spelled in the title of proceeding of the action and elsewhere) in 2003. The defendant argues that the plaintiff’s academic records are relevant to the underpinnings of the plaintiff’s loss of income claim.

The plaintiff’s position

6The plaintiff argues that the plaintiff’s academic records are not relevant.

7The plaintiff’s motion record includes an affidavit from a law clerk which states: “I verily believe that Mohamed attended Augsburg College in Minnesota from 1998 – 2003, where he obtained a Bachelor of Arts Degree in Computer Science in 2003.”

8The plaintiff says the plaintiff’s income tax returns have been produced as well as a letter from a former employer of the plaintiff, CGI, which states that the plaintiff’s file had been destroyed.

9The plaintiff argues that sufficient information has been produced to permit the defendant to assess the plaintiff’s loss of income claim without the academic records from Augsburg College.

Analysis and conclusion

10The plaintiff’s loss of income report of RSM Canada Consulting LP dated January 29, 2019 assumes that the plaintiff has a Bachelor’s degree in computer science with minors in physics and philosophy.

11I place no weight on the evidence of the plaintiff’s law clerk who said she verily believed that the plaintiff’s B.A. was in computer science. The affidavit did not specify the source of this information, in contravention of Rule 39.01(4) of the Rules of Civil Procedure.

12The plaintiff is seeking $2 million in damages for loss of income, in part based on the assumption that he has a degree in computer science. The plaintiff has produced a Bachelor of Arts degree, with his name misspelled and without any reference to a major or minor area of study. In these circumstances, the plaintiff’s academic records from Augsburg College are relevant an issue in the action.

Question #2: To request and produce all the clinical notes and records relating to Mr. Issa from SickKids Hospital

The plaintiff’s position

13The plaintiff says he attended SickKids Hospital after he immigrated to Canada from Somalia in 1992. He was not treated at SickKids after October 1, 1995.

14The plaintiff argues that records from SickKids that pre-date the accident by 20 years are not relevant.

15The plaintiff argues that his family doctor’s records have been produced for the five-year period before the accident and that they show that he visited only two times, once in 2014 and another time in 2015. The plaintiff’s OHIP summary for the three-year period before the accident includes only two entries during that period.

16The plaintiff says he was able to work and take care of himself and his family in the years leading up to the accident.

17The plaintiff says he has produced sufficient records to provide the defendant with an indication of his pre-accident health and that the defendant wishes to embark upon a “fishing expedition” in the plaintiff’s medical records.

18The plaintiff argues that SickKids’ records are too old to be relevant and that the defendant’s request for the SickKids’ documents is overly broad.

The defendant’s position

19The defendant argues that the plaintiff is an unreliable witness. The defendant’s factum identified a number of examples: he denied the accuracy of a medical note, he said that something he had told a physician was untrue; he said that he had told treatment providers at a rehabilitation centre that he had 12 different personalities, including one named Logan who was aggressive, “just to get the conversation going.”

20The defendant says the plaintiff told a psychiatrist that he had a history of head injury and that surgeons had wanted to operate on him because of a “nervous system” problem but that his father had not consented. On discovery, the plaintiff said he could not remember any assessment, treatment or advice in respect of a head injury, although he said that he had been hit on the back of the head when he was a child and that this had caused nervous system damage, including visual impairment.

21The defendant argues that if the plaintiff is suffering from an impairment caused by a childhood head injury, this could be relevant to the issues of causation and damages. The defendant argues that, particularly given the plaintiff has not proven himself to be a reliable source of information, the SickKids records should be produced because they are the only known source of information about the plaintiff’s head injury.

Analysis and conclusion

22I am satisfied that the defendant has identified the relevance of the SickKids’ records: There is evidence that the plaintiff suffered a head injury as a child that may have caused nervous system damage and visual impairment.

23I agree with the defendant that if the plaintiff is suffering from on-going issues related to this head injury, this may be relevant to both causation and damages.

24The plaintiff has been unable to shed any light on his diagnosis or prognosis, which is information likely to be found in the records.

25The defendant’s request is not a broad request for all medical records dating back 20 years. It is a specific request for documents that pre-date the plaintiff’s accident by 20 years but which may have a bearing on the issues of the effects of the accident, the plaintiff’s current condition and his income-earning potential.

Disposition

(1) The plaintiff shall produce his academic records from Augsburg University which shall include his complete transcripts and particulars of the degree conferred, including any major or minor areas of study

(2) The plaintiff shall produce all clinical notes and records from SickKids relating to his head injury, to what he described as a “nervous system” problem and to visual impairments, including all references to recommendations for further treatment and prognoses.

Costs

26The parties have filed costs outlines. If they are unable to agree on costs of the motion, the defendant may deliver brief written submissions to supplement his costs outline within 14 days. The plaintiff may then make brief responding submissions within 14 days of the date of receipt of the defendant’s submissions.

27The parties’ written submissions shall be filed by emailing them to scj.assistants@ontario.ca. Their covering emails shall state that the submissions are to be forwarded to me.