COURT FILE NO.: 2390/13
DATE: 20210928
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gary Raymond Wicks and Jeanette Wicks
Plaintiffs
– and –
Donna M. G. Green, Dental Corporation of Canada Inc. and Elgin Precise Landscape LTD.
Defendants
K. Arvai for the plaintiffs
K. Bailey for the defendants
HEARD: August 18, 2021
MCARTHUR J.
INTRODUCTION
[1] Gary Wicks slipped and fell at a defendant’s premises on December 29, 2011 and alleges he sustained injuries.
[2] On July 9, 2018 the defendants filed the trial record in this matter in relation to the incident.
[3] Mr. Wicks had been in a prior motor vehicle accident in November 2007. An action was commenced in that regard that was ongoing in December 2011. That action eventually was settled for the plaintiff with counsel who was other than the plaintiffs’ current counsel.
[4] Discoveries have long been completed and substantial disclosure and documents including medical reports were previously disclosed and exchanged. These also included medical reports in relation to the 2007 accident.
[5] In September 2018, the trial in this case was scheduled to commence the week of May 25, 2020.
[6] The pretrial proceeded on February 13, 2020 and was adjourned pending mediation which took place on August 26, 2020.
[7] The suspension of courts due to the Covid-19 pandemic started in March 2020. The defendants had brought a motion in January 2020 to adjourn the trial and the case ultimately was otherwise adjourned to the July 2020 assignment court where the trial was rescheduled to commence the week of February 16, 2021 and a trial management conference scheduled for December 3, 2020.
[8] This motion was brought by the defendants and first returnable on January 8, 2021.
ISSUES
[9] The parties have since substantially narrowed and confined the issues on the motion to the following:
a. The documents at issue are two expert reports from the accident benefits files from the 2007 incident which are a future care cost report and an income loss report in relation to the plaintiff;
b. Whether leave is required to bring this motion;
c. The parties agree that none of these documents engage the deemed undertaking provisions of the Rules Civil Procedure for the purposes of this motion.
POSITIONS OF THE PARTIES
Defendant’s Position
[10] The defendants, as moving parties, submit that leave is not required since the documents sought form part of the plaintiff’s obligations to disclose in the affidavit of documents. Alternately, if leave is required it should be granted since the pre-accident condition has remained in issue throughout and become more of an issue since the trial record was passed, it would be unfair to the defendants to proceed to trial without production and disclosure would not prejudice the main plaintiff in any way.
[11] The defendants submit the documents are relevant for production purposes since the plaintiff’s pre-accident condition is a significant issue for trial.
Plaintiff’s Position
[12] The plaintiffs submit that leave is required and that grounds to grant leave do not exist.
[13] The plaintiffs submit the future care report and the income loss reports are not medical records, neither are based on the condition of the plaintiff and are only secondary evidence of the plaintiff’s condition to the extent that the medical expert reports that have been disclosed provide the basis for these reports.
[14] The plaintiffs’ counsel indicated at the hearing that the transcript of the discoveries of the plaintiff taken on January 27, 2009 in the earlier matter will be disclosed.
THE LAW
[15] As provided under Rule 48.07, where an action is placed on a trial list, all parties shall be deemed to be ready for trial and the trial shall proceed when the action is reached on the trial list unless a judge orders otherwise.
[16] Rule 48.04 provides as follows:
(1) Subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court. O. Reg. 343/21, s. 1.
(2) Subrule (1) does not,
(a) relieve a party from complying with undertakings given by the party on an examination for discovery;
(b) relieve a party from any obligation imposed by,
(0.i) rule 29.1.03 (requirement for discovery plan),
(i) rule 30.07 (disclosure of documents or errors subsequently discovered),
(ii) rule 30.09 (abandonment of claim of privilege),
(iii) rule 31.07 (failure to answer on discovery),
(iv) rule 31.09 (disclosure of information subsequently obtained),
(v) rule 51.03 (duty to respond to request to admit),
(vi) rule 53.03 (service of report of expert witness); or
(vii) Revoked: O. Reg. 131/04, s. 13.
(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents).
(3) Leave of the court is not required for a motion to compel compliance with any obligation imposed by a rule listed in clause (2) (b).
[17] Rule 30.07 provides where a party, after serving an affidavit of documents,
(a) comes into possession or control of or obtains power over a document that relates to a matter in issue in the action and that is not privileged; or
(b) discovers that the affidavit is inaccurate or incomplete, the party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents.
[18] Rule 38.08 provides as follows:
(2) Where a party fails to serve an affidavit of documents or produce a document for inspection in compliance with these rules or fails to comply with an order of the court under rules 30.02 to 30.11, the court may,
(a) revoke or suspend the party’s right, if any, to initiate or continue an examination for discovery;
(b) dismiss the action, if the party is a plaintiff, or strike out the statement of defence, if the party is a defendant; and
(c) make such other order as is just.
(3) Where privilege is claimed for a document referred to in subrule (1), or where the court is uncertain of the relevance of or necessity for discovery of the document, the court may inspect the document to determine the issue.
ADDITIONAL BACKGROUND
[19] From a motor vehicle accident in 2007, Mr. Wicks claimed to have suffered soft tissue injuries and possibly a concussion. He went off work in 2008 as a result of the injuries suffered, underwent medical treatment and was diagnosed with chronic pain syndrome with physical, psychological and emotional difficulties. By early November 2009, he was cleared as fit to return to work with certain limitations to be accommodated.
[20] His employment ended on January 1, 2012 as a result of a lock-out and ultimate plant closing.
[21] The slip and fall incident on which this action is based occurred on December 29, 2011. The plaintiff claims he suffered soft tissue injuries to his neck and shoulder that aggravated the pain in those areas from before. He also claims to have suffered a concussion. He was able to return to new work in late 2012 in his former line of work and has continued to work to the present without interruption.
[22] The plaintiff’s orthopaedic expert opinion is that the 2011 incident aggravated his overall chronic pain syndrome and that there may have been a further concussion with its cumulative effect on his neurocognitive status.
ANALYSIS AND DISCUSSION
[23] Rule 30.02(1) outlines the scope of document discovery to every document that is relevant to any matter in issue in an action that is or has been in the possession, control, or power of a party to the action.
[24] In this case, the defendants retained two medical experts who were provided with extensive medical records including those from the 2007 incident. In this situation the defendants submit the loss of income and future care reports from the 2007 incident are relevant in that they would shed light on the plaintiff’s functioning, capabilities and limitations where the plaintiff’s physical and mental status prior to the incident is the subject matter of this case.
[25] The parties each referred to Memelli v. Bhandal, 2021 ONSC 802 where the issue was whether a first accident and its consequences 14 years earlier were relevant for the purposes of the scope of discovery and refusals by the plaintiff. In that case, there were indications that the plaintiff’s injuries had lingering effects from the earlier accident and the plaintiff refused to answer questions that included how long he was off work, diagnoses for psychological injury, chronic pain post accident treatment and medication.
[26] Justice Chown acknowledged common practice and observed that the onus was not high at that stage of proceedings. He engaged in a contextual analysis around whether the evidence of the first accident may make the existence of a fact in issue, in that case the current disability, more or less likely. As he posited by example at para 24, “the jury may think that it is more likely that the plaintiff was vulnerable to injury in 2017 if the 2003 accident and its consequences were serious, and less likely if minor.”
[27] Justice Chown found the potential relevance was not speculative and that, without production, the potential impact of disclosure cannot be assessed. He found the prior accident was relevant in relation to the refusals and directed the refusals be answered.
[28] He reasoned that a prior accident is not necessarily irrelevant when clearly not inconsequential. Whether any injuries from the earlier accident may not be the only relevant issue here, there may be other reasons that may be relevant, for example, to assist on the question of whether, because of prior injuries, the plaintiff was at an increased risk of disability regardless of the current incident.
[29] Of significance, the relevance of the information in that case was found to be useful and relevant to the experts’ assessments and opinions in that case that involved psychiatrists and psychologists. He distinguished other cases where it had been found that the injuries were not ongoing or inconsequential.
[30] In this present case, the defendants retained two medical experts; one a neuropsychologist and another an orthopaedic surgeon. Both experts had the medical reports from the earlier incident. Those reports addressed the issue of causation. The neuropsychologist’s opinion was that the plaintiff sustained a concussion from which he had achieved complete recovery and was provably non-contributory to the plaintiff’s condition. The orthopaedic expert’s opinion was that the plaintiff earlier sustained soft tissue injuries that resolved leaving him no functional impairments in relation to the subject incident.
[31] In this case, the future care costs report and the loss of income reports are reports are predicated on assumptions that would have a medical basis. As such, theses reports and the medical assumptions have no relevance where the prior medical reports had already been disclosed.
[32] I have also considered other cases referred to by counsel including Vanderwerf v. Westra, 2015 ONSC 2245. In that case, Justice Leitch declined to order production from a prior action which was an income loss report. She did order production of the transcripts of the plaintiff’s examination of discovery.
Leave
[33] In view that I have found the remaining reports are not relevant and the concession made by the plaintiff’s counsel that the transcripts of the plaintiff’s examination of discovery in the prior action will be provided, it is not necessary to determine if leave is necessary.
Summary and Conclusions
[34] This court finds that the request of the defendants for the disclosure of the loss of income report and the future care costs report in relation to the 2007 is dismissed.
[35] Taking into account that a substantial part of this motion was resolved prior to the hearing, that the examination for discovery transcript of the plaintiff was undertaken to be produced and in view of the remaining issue address in this ruling, there was divided success on the motion overall. There shall be no order as to costs.
“Justice M.D. McArthur”
Justice M. D. McArthur
Released: September 28, 2021
COURT FILE NO.: 2390/13
DATE: 20210928
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gary Raymond Wicks and Jeanette Wicks
Plaintiffs
– and –
Donna M. G. Green, Dental Corporation of Canada Inc. and Elgin Precise Landscape LTD.
Defendants
REASONS FOR JUDGMENT
McArthur J.
Released: September 28, 2021.