COURT FILE NO.: CV-15-0343-00
DATE: 20211124
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HARRY VANDERMEIDEN and JETTE VANDERMEIDEN Plaintiffs
– and –
THE CORPORATION OF THE TOWNSHIP OF SPRINGWATER, THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE, HYDRO ONE INC., HYDRO ONE NETWORKS INC. and LARRY PERKINS Defendants
Counsel: J. Finkel, for the Plaintiffs J. Martin, for the Defendants
HEARD: August 10, 2021
REASONS FOR DECISION ON MOTION
CASULLO J.
OVERVIEW
[1] The plaintiffs seek the following relief from the defendant Oro-Medonte:
a) Answer to one undertaking given at the defendant’s examination for discovery;
b) Answers to four refusals given at the defendant’s examination for discovery;
c) Further documentary production; and
d) Re-attendance at examination for discovery.
Background
[2] On July 19, 2013, a major weather event struck most of Ontario, including Oro-Medonte and surrounding areas. As Harry Vandermeiden travelled on Line 2 North in the Township of Oro-Medonte, he drove directly into live, downed hydro towers that were suspended across the roadway at approximately chest height, suffering injury when he was thrown from his motorcycle.
[3] The plaintiffs allege that had Oro-Medonte attended at the location of the downed hydro wires in a timely manner and taken reasonable steps to block access to the roadway, the collision would not have occurred.
Procedural History
[4] The plaintiffs issued a statement of claim on March 20, 2015.
[5] Oro-Medonte served its statement of defence and crossclaim on May 8, 2015.
[6] The plaintiffs’ examination of Fire Chief Murray was completed by February 16, 2017.
[7] Examinations of the plaintiffs were completed by August 1, 2017.
[8] On March 6, 2019, the plaintiffs put Oro-Medonte on notice that they would be bringing a motion to compel answers to undertakings and questions improperly refused during Chief Murray’s examination.
[9] On October 17, 2019, the plaintiffs served and filed material for a refusals motion against the defendant Township of Springwater.
[10] On February 11, 2020 the plaintiffs reiterated to Oro-Medonte their intention to bring their productions motion.
[11] On March 10, 2020, the plaintiffs served Oro-Medonte with a motion record returnable March 24, 2020. The original notice of motion sought only an answer to one undertaking, being an updated supplementary affidavit of documents, and answers to four refusals.
[12] To avoid the action being administratively dismissed on March 20, 2020 (pursuant to r. 48.14), the plaintiffs set the matter down for trial on March 13, 2020. The trial record was served on the defendants and filed on March 13, 2020.
[13] The March 24, 2020 hearing was cancelled due to the onset of the COVID-19 pandemic.
[14] After serving the motion record, the plaintiffs became aware that Oro-Medonte maintained a set of Standard Operating Procedures (“SOPs”), and Standard Operating Guidelines (“SOGs”), documents which were not included in Oro-Medonte’s affidavit of documents.[^1]
[15] The plaintiffs began requesting these documents in August of 2020. While their first requests for the SOPs and SOGs went unanswered, on March 4, 2021, Oro-Medonte produced copies of the SOPs it deemed were relevant to the action. Of the 66 procedures contained in the SOP, Oro-Medonte produced 4.
[16] After a further exchange of correspondence, the plaintiffs were provided with what they submit is an illegible index to the SOPs.
[17] On July 23, 2021, the plaintiffs advised Oro-Medonte that in addition to the relief set out in the original motion record, they were seeking the SOPs, the SOGs, indexes to both the SOP and SOG, and a further and better affidavit of documents.[^2]
ISSUES
[18] There are four issues to be decided:
a. Do the plaintiffs require leave to bring this motion, and if so, should leave be granted?
b. Should Oro-Medonte be compelled to answer the four questions the plaintiffs submit were improperly refused at Fire Chief Murray’s examination for discovery?
c. Should Oro-Medonte be ordered to produce the requested documents and deliver a further and better affidavit of documents?
d. Should a representative of Oro-Medonte be compelled to re-attend at examinations for discovery?
Issue 1: Do the plaintiffs require leave to bring this motion?
[19] Much time was devoted to argument on this issue. Oro-Medonte submits that leave is required because the plaintiffs set the matter down for trial on March 10, 2020, prior to serving the motion record.
[20] The plaintiffs argue leave is not required, as it was the motion record that was served on March 10, 2020. The trial record was served three days later, on March 13, 2020.
[21] The affidavit evidence before me establishes that the plaintiffs served the motion record prior to serving the trial record. Oro-Medonte’s position is incorrect, and leave is not required.
[22] If I am wrong in finding that leave is not required, for the following reasons I would grant leave. As Chalmers J. recently held in Deljanov v. Peel Condominium Corporation No. 516, et al., 2021 ONSC 3915, at para. 7, citing BNL Entertainment v. Ricketts, 2015 ONSC 1737, at para. 12:
Leave may also be granted if it is just in the circumstances of the particular facts of the case.
[23] The circumstances of this case support the request for leave.
[24] The area of Line 2 North, where the loss occurred, is covered by a mutual aid agreement between Oro-Medonte and neighbouring Springwater Township. Springwater Township’s Station #4 is the closest fire station to Line 2 North. Oro-Medonte’s Station #6 is further away.
[25] Springwater Township’s fire department received a dispatch call regarding downed hydro wires across and along Line 2 North. Pursuant to the mutual aid agreement, Springwater dispatched personnel to the Line 2 North area and blocked off a portion of the roadway. However, it was only the north side of the downed wires that was blocked off; the south side, the direction from which Mr. Vandermeiden approached the downed wires, was not blocked off.
[26] Oro-Medonte concedes it did not attend the scene before Mr. Vandermeiden’s collision. In light of this, it submits that what happened before it arrived is not relevant. I respectfully disagree. The heart of the issue between the plaintiffs and Oro-Medonte is what was required to happen, versus what actually happened, between the dispatch call and Oro-Medonte’s arrival on the scene. The documentation being requested, and the answers to refusals, are all relevant to this issue.
Issue 2: Should Oro-Medonte be compelled to answer the four questions the plaintiffs submit were improperly refused at Fire Chief Murray’s examination for discovery?
[27] The four refusals are:
To ask the 18 firefighters assigned to Oro-Medonte Fire Station #6 whether they received a call for downed live hydro wires at Line 2 and Cassell Drive between 3:30 p.m. and 4:15 p.m. on the date of loss.
To ask the 18 firefighters assigned to Oro-Medonte Fire Station #6 how many of them were available to respond to calls on the date of loss.
To ask the 18 firefighters assigned to Oro-Medonte Fire Station #6 whether they heard the call from Ton Van Dam, Springwater’s Fire Chief.
To enquire of Lisa McNiven whether after the incident she inspected the tree that had fallen onto the wires, and to produce copies of any report or photographs taken.
[28] Oro-Medonte submits that (a) the request to enquire of 18 volunteer firefighters is too onerous, and unnecessary in any event; and (b) any post-incident inspection of the fallen tree is irrelevant.
[29] The answers the firefighters give to the three questions refused may be relevant to the issue of whether Oro-Medonte acted reasonably in its response to the incident. And the request is not too onerous. Oro-Medonte has obviously kept tabs on the firefighters, as it advised that two of the 18 have passed away, three of the 18 were attending another call, and eight of the remaining 13 are no longer with the department.
[30] The plaintiffs plead a failure to inspect, assess, control, maintain or keep the road in question safe as against Oro-Medonte. The question of whether the fallen tree was inspected is neither overbroad nor disproportionate. Any inspection of the tree, before or after the incident, is relevant to the action.
[31] Oro-Medonte shall provide answers to each of the four questions improperly refused at Chief Murray’s examination.
Issue 3: Should Oro-Medonte be ordered to produce the requested documents and deliver a further and better affidavit of documents?
[32] Pursuant to r. 30.07, documentary production is an ongoing obligation. When, after serving an affidavit of documents, a party discovers the affidavit is inaccurate or incomplete, the party must forthwith serve a supplementary affidavit specifying any modifications and disclosing any additional documents.
[33] The plaintiffs appear to have discovered by happenstance that Oro-Medonte maintained SOPs. The existence of the SOPs was in the sole purview of Oro-Medonte and should have been included in its affidavit of documents. Once the plaintiffs identified and requested the SOPs, Oro-Medonte was obligated to correct its failure to include them and produce a supplementary affidavit of documents.
[34] The SOPs appear to establish the standards Oro-Medonte holds its firefighters to, and provide a point of reference as to how firefighters should conduct themselves in emergency situations. These standards are relevant to the action.
[35] Oro-Medonte shall serve a supplementary affidavit of documents, and produce all SOPs, along with their indices.
Issue 4: Should a representative of Oro-Medonte be compelled to re-attend at examinations for discovery?
[36] Improper refusals are “an interruption of the discovery.” In light of my determination that Oro-Medonte must provide answers to the four questions improperly refused, the plaintiffs are entitled to continue their discovery of a representative of Oro-Medonte pursuant to r. 34.15(a).
[37] Therefore, Chief Murray is ordered to reattend at a continued examination for discovery, at Oro-Medonte’s expense, to answer relevant and proper questions arising from the answers to questions refused.
[38] In the event I ordered re-attendance, Oro-Medonte requested that the examination proceed in writing under r. 35. In the circumstances, and particularly in light of the availability of virtual examinations, I see no reason to order that the examination proceed in writing.
CONCLUSION
[39] Oro-Medonte shall answer the four questions improperly refused at Chief Murray’s examination.
[40] Oro-Medonte shall serve a supplementary affidavit of documents, and produce the SOPs in their entirely, along with any indexes.
[41] At Oro-Medonte’s expense, Fire Chief Murray shall re-attend at examination for discovery to answer any questions properly arising from the answers to the four questions improperly refused.
COSTS
[42] The plaintiffs were wholly successful on the motion and therefore are presumptively entitled to their costs.
[43] Given the time constraints on the hearing date (plaintiffs’ counsel estimated the time required for the motion was one hour including reply and costs; in reality, the motion required approximately 2.5 hours to complete), costs were not addressed. No bills of costs appear to have been filed.
[44] I would urge the parties to come to an agreement as to costs. In the event the parties cannot agree, they are directed to provide written submissions no longer that three pages in length, double spaced, in addition to any relevant bill of costs and offers to settle. The plaintiffs shall provide their costs submissions by December 15, 2021, and Oro-Medonte shall provide any response by December 31, 2021.
[45] If costs submissions are not received from either party by December 31, 2021, costs shall be deemed settled.
[46] Submissions may be directed to my judicial assistant, Nicole Anderson, at nicole.anderson@ontario.ca.
CASULLO J.
Released: November 24, 2021
[^1]: Counsel for Oro-Medonte confirmed during submissions that there is no document entitled Standard Operating Guidelines. [^2]: The plaintiffs also sought Oro-Medonte’s Station #6 records on the date of loss. However, this request was withdrawn once Oro-Medonte established that Station #6 experienced transmission problems in the hours leading up to the collision due to the severe storm, and there were no records beyond what was already produced.