COURT FILE NO.: CV-18-00609498-00CP
DATE: 20211001
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Somwar, Tulsidai Somwar and Shanta Persaud, Plaintiffs
– AND –
Fly Jamaica Airways Ltd., The Boeing Company, Basil Ferguson, Keone Bryan, John Doe #3 Aircraft Maintenance Provider, John Doe #4 Aircraft Maintenance Mechanic
BEFORE: Justice E.M. Morgan
COUNSEL: Vincent Genova, Douglas Worndl, and Paul Miller, for the Plaintiffs
Clay Hunter, for Fly Jamaica Airways Ltd.
Robert Fenn, for the Defendant, The Boeing Company
HEARD: October 1, 2021
CASE CONFERENCE
[1] The John Doe parties have been identified and are located in Mexico. The Plaintiffs have not yet served them as they are as yet unsure of whether there is an evidentiary basis to support the claim against these parties. Plaintiffs’ counsel have asked the other Defendants to provide them with information that will help them assess this, and have specifically requested a copy of any investigation report that either Fly Jamaica or Boeing has in its possession in respect of the incident giving rise to this action.
[2] Counsel for Boeing and Fly Jamaica submit that the way to proceed is in accordance with the Rules of Civil Procedure – that is, the two unserved Defendants should be served so that they can produce Statements of Defense, after which the pleadings will be closed and all parties will serve their affidavits of documents. At that point everyone will know what evidence there is with respect to each party.
[3] In terms of an investigation report, neither Fly Jamaica nor Boeing is prepared to produce anything prematurely. Both of their counsel argue that if any such report exists it will have to be analyzed in terms of privilege, and the proper time for any argument about documentary production and privilege is when affidavits of documents are exchanged after the close of pleadings.
[4] Counsel for the Plaintiffs have been reluctant to serve the parties in Mexico due to the logistical difficulties in that process as well as the risk of exposing the Plaintiffs to costs in the event that there turns out to be insufficient evidence to support a claim against those parties. That, however, is an unavoidable aspect of the litigation process. If a plaintiff wishes to sue Person A, he or she must sue Person A; a plaintiff cannot sue Person B and Person C and then require those defendants to advise whether it is really worthwhile suing Person A as well. While I sympathize with the Plaintiffs’ costs dilemma here, the Defendants are not obliged to relieve them of the ordinary risks of civil litigation under the Ontario Rules.
[5] I would like to see this action move to the next stage. I therefore require the Plaintiffs to serve the remaining John Doe parties within 60 days of today. If they find that they are unable to do so within that time frame, Plaintiffs’ counsel are to be in touch with my assistant in order to convene another case conference. In any case, counsel are to advise me at the end of the 60-day period where the matter stands and any of them are invited at that point to arrange a further case conference if they think it necessary.
Morgan J.
Date: October 1, 2021

