INTRODUCTION

[1] This is a refusals motion brought by the defendant. The case arises from a 2017 motor vehicle accident. The dispute centers around the relevance of a 2003 accident. The plaintiff injured his back in both accidents. He was off work for approximately six or seven years after the 2003 accident. He has not returned to work since the 2017 accident and claims permanent total disability from working because of the 2017 accident.

[2] The plaintiff argues that the 2003 accident is irrelevant because he recovered from it and returned to the workforce by 2011 – six years before the accident in question. The defence argues that the 2003 accident is relevant, especially with respect to the questions of whether the plaintiff is a thin-skulled plaintiff and whether he is a crumbling skull plaintiff.

[3] I conclude that the accident and its consequences are relevant for purposes of the scope of discovery.

Background

[4] The car accident which is the subject of this lawsuit occurred on May 12, 2017. The injured plaintiff Eduart Memelli alleges that he sustained “a traumatic brain injury, and soft tissue injuries to his back, neck, right arm, right shoulder and right leg.” He alleges ongoing “back pain, neck pain, right arm pain, right shoulder pain, right leg pain, widespread pain, weakness, decreased mobility, headaches, dizziness, nausea, cognitive deficits, and psychological impairments.”

[5] Available details about the 2003 accident are limited. It was a car accident (per Q.200 in the transcript of Mr. Memelli’s discovery).

[6] The motion materials reveal that at the time of the 2017 accident, Mr. Memelli was employed in HVAC as a plumber. He had been working in this field since roughly 2011. He was earning a good income and working full time.

[7] There is some uncertainty from the motion materials precisely how long Mr. Memelli was off work after the 2003 accident, and why. However, tax records for the years 2003, 2004, 2008 and 2010 are contained within the evidence on this motion and show no employment income in 2003, 2004 and 2008.

[8] Mr. Memelli’s OHIP summary going back to 2012 reveals few charges to OHIP for medical treatment and no relevant treatment between 2012 and the date of the accident (per Mr. Cameron’s affidavit at paragraphs 17 to 20).

[9] There are, however, some indications that Mr. Memelli’s injuries from the 2003 accident may have had lingering effects. He admitted that in the five years before the accident he had back pain when he “was moving heavy stuff” (Q. 1586) which happened maybe once a week (Q.1590). The pain travelled into his right and left legs (Q.1591 to 1595).

[10] The plaintiff’s wife, Demirke Memelli (an FLA claimant), said at her examination that Mr. Memelli had been diagnosed with a herniated disc in 2003 (Q.160) and had lower back pain and pain in the right leg in the five years before the accident (Q.161).

[11] A medical report dated July 3, 2015 mentioned that Mr. Memelli’s medical history was “significant for a motor vehicle accident in 2003 that resulted in chronic back pain.”

[12] A consultation note dated September 19, 2018 by psychiatrist Dr. O’Brien states:

He had an MVA in 2003 and saw a psychiatrist at Trillium Hospital for a number of years and recovered. He was diagnosed with difficulties with anxiety and mood at that time. He was given LORAZEPAM, NORTRIPTYLINE, and CYMBALTA as medications in the past.

[13] Plaintiff’s counsel noted that while there may be some evidence of ongoing complaints, these are minor, and there is no evidence of ongoing impairment. The plaintiff was working full time as a plumber and was not engaging in any treatment for five years prior to the 2017 accident.

[14] Mr. Memelli has not returned to work as a plumber since the May 12, 2017 accident. He was 48 years old at that time. He has qualified for CPP disability benefits. As he claims ongoing total disability, there a lot a stake. Mr. Memelli claims damages of $1.5 million dollars and his wife and daughter claim $250,000 each in FLA damages.

Refusals

[15] Examples of questions refused include:

how long Mr. Memelli was off work after the 2003 accident
whether he had any psychological treatment as a result of the 2003 accident
whether he had a disc herniation as a result of the 2003 accident
whether he saw an orthopedic surgeon as a result of the accident
whether he was diagnosed with posttraumatic stress disorder, anxiety or depression that required medication because of the 2003 accident
whether he was diagnosed with chronic pain as a result of the 2003 accident

The Test for Relevance

[16] A succinct and often-cited statement about relevance is found in R v. Pilon 2009 ONCA 248 at para 33:

Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties. [Citations omitted.]

[17] Pilon referenced this often-cited passage in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47:

Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence” (D. M. Paciocco and L. Stuesser, The Law of Evidence (1996), at p. 19).

Common Practice

[18] In personal injury cases, counsel will commonly agree to obtain medical records dating back three to five years before the accident, and if those records or other evidence reveals overlapping injuries, to obtain the records which cover the previous injuries. The relevance of records relating a prior accident arises frequently.

[19] An example of a ruling that accords with this practice is Robbins v Sears Canada Inc., 2015 ONSC 6660.

[20] Here, counsel for the plaintiff has agreed to obtain and provide thorough disclosure of all manner of records going back to 2010 (seven years before the accident) but maintains that going back 14 years to cover the aftermath of the 2003 accident goes too far, particularly when the plaintiff recovered from it and returned to work for years prior to the subject accident.

[21] Plaintiff’s counsel notes that the defendant has the onus of establishing that the requested records are relevant. While this is true, the overlapping injury tends to show relevance, and the onus is not high at this stage. As the court stated in Saleh v Ambalavanar and Sambasivam, 2018 ONSC 3358 at para 9:

While there must be something to make the records relevant in order to justify their production, the Defendant does not have to prove its case at this stage; it cannot do so before it sees the file that it seeks.

Relevance

[22] In my view, questions and documents relating to the consequences of the 2003 accident are relevant in this case. Although the particulars of the plaintiff’s injuries and disability from the 2003 accident are not known, he was off work for many years suggesting that it was serious.

[23] Given the lengthy apparent disability from working after the prior accident, it is reasonable to think there may be connections between the plaintiff’s prior injury and his current disability. Human experience tells us that old injuries to the same body part may play a role in new injuries to the same body part, whether it be in healing, treatment, disability, or perception of the injured person. People draw connections between their old injuries and their current complaints long after normal healing has taken place.

[24] Referencing Pilon, the evidence surrounding the first accident may make the existence of a fact in issue – current disability – more or less likely. For example, the jury may think 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.

[25] The potential relevance of documents from the 2003 accident is not speculative. Without production of the records, their potential impact cannot be assessed.

Relevance re Expert Evidence

[26] Experts on both sides in these cases typically inquire about prior accidents and prior injuries to the same body part when they assess injured persons. The reason for this is that prior injuries may contribute to the analysis by, for instance, providing:

a better understanding of any special sensitivity of the plaintiff (e.g., thin skull); or
another explanation for the plaintiff’s complaints (e.g., crumbling skull).

[27] Where there are complaints of back pain, experts’ inquiries about old injuries are particularly common.

[28] Similarly, psychiatrists and psychologists commonly review a patient's psychiatric history. We see this here, both by Dr. O’Brien (who did an assessment of Mr. Memelli at the request of Mr. Memelli’s family doctor) and by Dr. Reznek (who assessed Mr. Memelli at the request of the defence). They both reviewed the 2003 accident and its consequences. Psychiatrists invariably review the details of a patient’s previous psychiatric trauma, treatment or diagnoses because they find it relevant to their assessment. Old psychological traumas can impact psychiatric conclusions, such as psychiatric prognosis.

[29] It is possible that after review of the available evidence, the experts will dismiss the 2003 accident as inconsequential; however, it is only possible to have full confidence about the impact of the prior accident if there is production of the contemporaneous treatment and other records from it.

[30] If the records from 2003 accident are not provided, this may deprive the experts of information they would find useful and may diminish their opinions.

Cases Cited by Plaintiff

[31] Plaintiff’s counsel has cited two cases to me to support the plaintiff’s position.

[32] Blake v Drandic, 2017 ONSC 5030 is similar to the case at bar in that the plaintiff had been involved in two accidents that occurred years apart. There were some overlapping complaints between the 2012 accident at issue and a 2004 accident. There was litigation from the 2004 accident which settled in 2007. Master Muir held at para. 4:

The plaintiff has provided all of her medical records for a period of four years prior to the 2012 accident. The evidence shows that the plaintiff’s injuries from the 2004 accident were largely resolved by 2012. Any issues of overlapping injuries will be illuminated by the medical records already produced.

[33] In P. v Waite, 2013 ONSC 7916, the accident in issue occurred in 2009 and the plaintiff had been involved in a 2002 accident. The prior accident caused $2,000 damage to the plaintiff’s car and “some physical injuries to her in the form of a whiplash.” The 2009 accident allegedly caused a central disc herniation and whiplash. The defendant requested the property damage file and the AB file from the prior accident.

[34] Master Roger held that the property damage file was not relevant in the circumstances of that case and refused to order its production. The plaintiff had provided “sufficient information about this earlier accident at her examination for discovery such that the actual property file is not relevant.” What was relevant was “whether any injuries from the earlier accident were and are ongoing and this will be in the medical documentation produced for the period before the accident.”

[35] Similarly, Master Roger declined to order production of the AB file:

What is relevant is how this Plaintiff was doing in the years before the accident and this will be sufficiently disclosed in the medical disclosure pre-accident. The documents contained in the AB file for this prior accident will not assist in this regard considering the time between this earlier accident and the accident in this action...

[36] The full extent of the information already provided regarding the 2002 accident is not clear from the reasons for decision. It may be that the evidence established to Master Roger’s satisfaction that the 2002 accident was inconsequential. For instance, there is no indication that the plaintiff in that case was disabled from working by the 2002 accident.

[37] I do not agree that here, or in general, a prior accident is necessarily irrelevant where the plaintiff appears to have recovered from it. It is a question of degree. There are truly inconsequential accidents which would be irrelevant, but the prior accident here clearly was not inconsequential.

[38] Further, I do not agree that all that matters is how the plaintiff was doing in the years before the accident. “Whether any injuries from the earlier accident were and are ongoing” is not the only relevant issue. There are other reasons why evidence from a prior accident may be relevant. Most importantly, the evidence may assist in determining whether the plaintiff fits within the thin skull doctrine and whether the plaintiff fits within the crumbling skull doctrine. Stated differently, it may assist on the question of whether the plaintiff was more vulnerable to injury and on the question of whether, because of the prior injuries, the plaintiff was at increased risk of disability regardless of the subject accident.

Proportionality

[39] Plaintiff’s counsel acknowledged that the effort involved in obtaining (or attempting to obtain) the requested records and information is not onerous. Counsel did, however, point me to following passage of the Blake v Drandic decision, supra, at para 7:

Counsel for the defendants points out that the requested records have already been assembled and organized given the prior litigation and little effort would be required to produce those records. However, proportionality goes beyond simple production. Further oral discovery may result. Expert review may be required. In view of the marginal relevance of these records, their production is not in keeping with the principle of proportionality.

[40] Here, plaintiff’s counsel has not yet arranged assessments of Mr. Memelli and, so far, the defence has completed a psychiatric assessment only. It can be anticipated that experts retained by both sides will find it worthwhile to review the details of the 2003 accident. Again, as a practical matter, if I do not allow the facts to come out, I may be impairing the potential expert opinions that may be prepared for both sides.

[41] Further oral discovery may be required but this is a serious claim. Further examination of the plaintiff is not disproportionate.

Disposition and Costs

[42] At the conclusion of the hearing counsel provided me with a draft order which included all the matters in this motion that they resolved between themselves. Counsel then offered to prepare and provide me with a list of the refusals that were still in issue. Unfortunately, I declined that, thinking that it would be apparent which ones were still in issue by comparing the motion record to the draft order. However, on review I note that it is not that simple.

[43] Counsel did indicate that all the issues boiled down to whether the 2003 accident was relevant. As can be seen, I have concluded that it is relevant. The first 10 refusals listed in the chart at page 14 and 15 of the motion record must be answered.

[44] If I have not addressed refusals which the parties require to be resolved, and if after reviewing my reasons above counsel cannot resolve them, counsel may write to me through my judicial assistant. Please note that counsel are not to write to me with argument, but rather to provide me with a description of any unresolved issues and to provide me with an updated draft order.

[45] I will hold a 20-minute Zoom hearing at 9:00AM to address any specifics not resolved by the parties and the issue of costs. Counsel should contact my judicial assistant with their joint availability for a 9:00AM conference during the weeks of February 8 and 15, 2021. Counsel should provide copies of costs outlines in advance of the hearing. Any offers to settle the motion should be provided to me only after it is confirmed there are no outstanding issues other than costs.

Justice R. Chown

Released: February 1, 2021

COURT FILE NO.: CV19-5295

DATE: 20210201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Eduart Memelli, Demirke Demelli and Danja Memelli

Plaintiff

and -

Gabinpreet Singh Bhandal

Defendant

REASONS FOR DECISION

Chown J.

Released: February 1, 2021

Memelli v. Bhandal, 2021 ONSC 802

Case Summary

INTRODUCTION

Background

Refusals

The Test for Relevance

Common Practice

Relevance

Relevance re Expert Evidence

Cases Cited by Plaintiff

Proportionality

Disposition and Costs

REASONS FOR DECISION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Legal Tests 1