ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAWRENCE GEORGE MCLEOD and LORNA ANDERSON
Plaintiffs
-and-
DANIEL LEONOWICZ and WIESLAW PALEWICZ
Defendants
Theodore P. Charney, for the responding party / plaintiffs
Vikram Kapur, for the moving party / defendants
Heard: August 24, 2021 by video conference
Justice R. Chown
Endorsement
1This is a motion for a continued or further examination for discovery of the plaintiff in this personal injury / motor vehicle accident claim.
2The issues on this motion are:
a. Is the surveillance admissible?
b. Should a continued or further examination be granted?
3The accident occurred on August 18, 2015. The action was commenced on November 8, 2016. The plaintiff Lawrence McLeod was examined for discovery on September 14, 2017. The plaintiff Lorna Anderson was examined for discovery on March 1, 2018.
4The plaintiff served the trial record on April 30, 2019.
5A pretrial conference was held on March 8, 2021.
6The case is on the trial list for May 2022.
Information from the Pre-trial Conference
7Before turning to the substantive issues, I will address a concern raised by the plaintiff. The affidavit the defence has filed sets out certain details of the position the plaintiff took at the pre-trial conference, which was to the effect that the plaintiff’s loss of income claim was being maintained and that the plaintiff would not agree to further examination on the subject of the plaintiff’s inability to work. The plaintiff objects to this evidence and correctly argues that it is improper. Rule 50.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prohibits the communication to a motions judge of “any statement made at a pre-trial conference.” The purpose of rule 50.09 is to promote compromise in without prejudice communications at the pre-trial. Proffering an affidavit detailing what was said at the pretrial defeats that purpose.
8In this case, the communications related in the affidavit did not describe any compromise made by the plaintiff, so the offence is a minor one. However, the affiant should have restricted herself to saying that the plaintiff has advanced and maintained a loss of income claim and has served an expert report which calculates the plaintiff’s loss of income predicated on the assumption that the plaintiff is completely disabled from working. I will disregard the evidence about what was said at the pretrial conference.
Is the Surveillance Admissible?
9Given the position I have taken below, it is not necessary to answer this question. I have assumed for the purposes of this motion that the surveillance is admissible on this motion.
Should a further examination be granted?
10I wish to emphasize that the defence has not taken the position that it seeks to ask questions arising out of answers to undertakings. That may have been an easier route for the defence to follow as the law generally supports a party’s right to ask follow-up questions based on answers to undertakings or improper refusals. “As a general principle a party giving undertakings or answering refusals may be required to re-attend to complete the discovery by giving the answers under oath and answering appropriate follow up questions”: Todd L. Archibald and P. Tamara Sugunasiri, Ontario Superior Court Practice 2021, (Toronto: LexisNexis Canada, 2017). However, the motion materials do not identify any areas of follow up questioning the defence seeks to pursue based on answers to undertakings or refusals. The defence argument is based on the surveillance. The two arguments made are: (1) that the plaintiff has a duty to correct his answers, and this gives rise to a right to a further examination; and (2) that the surveillance demonstrates a change in circumstances such that the defence should be entitled to a further examination.
Does the plaintiff’s answer that he has not worked since the accident require correction?
11The defence argues that:
a. the surveillance shows the plaintiff working;
b. the plaintiff testified at discovery that he had not worked since the accident;
c. pursuant to rule 31.09, the plaintiff has an obligation to correct his answer, the corrected information needs to be made in writing, and the defence is entitled to require that the information be the subject of further examination for discovery.
12The defence relies on Snelgrove v. Steinberg Inc., 1995 CanLII 1526 (ON CA). That was an appeal from a trial decision, where the defence had not corrected answers given at its examination for discovery. The Court of Appeal noted that “although appropriate questions were asked on discovery, the plaintiff was given either no information or late information” on several important points relating to liability. “All of these matters were relevant to the plaintiff’s claim and she was entitled to accurate and timely information about them.” There was found to be “a flagrant and continuing breach of the rules respecting disclosure.” A new trial was ordered.
13The circumstance here is different. The position taken on behalf of the plaintiff, presumably with the plaintiff’s considered assent, is that his answers at his examination do not require correction. I was referred to this passage:
887 Q. Have you attempted a return to work since the accident?
A. I went out with my friends, like to get out of the house sometime.
- Q. Sorry?
A. I went out with my friends just to get out of the house sometimes.
- Q. So you go to a job site with them?
A. Yes, I do.
891 Q. What do you do when you get to the job site with them?
A. Sometimes I walk around a little bit and if they want something and it’s light, I can pass it, I pass it if them ask for it, but nothing major.
- Q. How many times have you done that since the accident?
A. Say a few times.
- Q. Like under 10?
A. Maybe under 10, yes, something.
894 Q. And when you go, like how long to do you generally stay at the job site with them?
A. Depends on what I’m doing and some time I will stay all day. Depends on what I’m doing.
- Q. So during that day what might you do? You mentioned you would walk around for a bit. If they wanted something you’d pass it to them. What would the sort of time that you’re there look like? What would you be doing?
A. Just being there, if want like a piece of metal, small piece of metal, maybe I can pass it or something like that.
898 Q. Have they given you any money for the time that you’re doing that?
A. Sometimes they give me around 100 bucks or two, or it depends, sometime, yeah?
899 Q. When you say “sometimes,” is that each of the times you’ve gone?
A. If they go and they make money and then give me - - help with my truck parking because they use my truck, so.
900 Q. So they’re using your truck?
A. Yeah, they are lending my truck from me.
901 Q. Is that the pickup truck or the cube truck?
A. Cube truck.
14The full surveillance report has been produced. It details the investigator’s observations of the plaintiff and includes numerous still shots from video recorded by the investigator. It describes and depicts that on November 2, 2019, the plaintiff worked for 7 hours and 3 minutes installing and removing panels on the soffits of a motel. The plaintiff can be seen in the still shots wearing a tool belt, standing on a ladder, using tools (a drill and perhaps a screwdriver) on eavestroughs, moving a ladder, climbing a ladder, manipulating soffit panels and eavestrough, bending to pick up soffit panels from the ground, and similar activities. From the time stamps on the video, these activities range from between 10:41 a.m. and 5:35 p.m.
15It must be taken that the plaintiff’s position is his answers are correct and do not need to be changed. That being so, I do not think it is proper to order the plaintiff to change his answers. I fully appreciate the defence position that the answers are not credible. However, the issue is one on which I should offer no conclusion. The result might be different if the questions were on purely objective matters, or if the answers were not primarily an issue of credibility.
16Nothing I have said here should be construed as offering my opinion on the plaintiff’s evidence. At the same time, it is not my intention to preclude the defence from attempting to impeach the plaintiff based on his discovery testimony or from attempting to make use of rule 31.09(3). These are matters that should remain to be addressed within the scope of the trial. The trial judge will have a more complete record.
Has there been a change in circumstances justifying a further examination?
17The defence has argued that there has been a material change in circumstance because it appears the plaintiff has gone back to work or that he has regained the ability to take on more demanding work. The defence seeks to inquire who the plaintiff worked with, what he was paid, what his current functionality is, and similar questions.
18However, in the statement of defence, the defendants deny significant injury or a loss of income. I do not think the defence can legitimately claim that because of the surveillance it has now realized the plaintiff was once injured but must have improved since he gave his prior testimony.
19The fact that additional evidence has been generated, namely the surveillance, is not a change in circumstances.
Disposition
20The motion is dismissed. If the parties cannot resolve the issue of costs, the plaintiff shall submit written argument of not more than two pages (plus if desired a costs outline or other supporting documentation), by December 7, 2021. The defence shall submit its reply with the same page limit, by December 14, 2021.
Chown J.
Released: November 23, 2021