Court File and Parties

COURT FILE NO.: CV-19-28267 DATE: 20220310 CORRECTED: 20220530

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JARRETT SIM, DIANNE CATHERINE MANUEL and MAKAYLAH ROSE SIM and LILLIANA CLAIRE SIM by their Litigation Guardian, DIANNE CATHERINE MANUEL Plaintiffs – and – MOTION GP INC. as General Partner for MOTION LP, carrying on business as MOTION SPECIALTIES; MOEN, a General Partnership between GLOBAL PLUMBING GROUP CANADA ULC and MB MOEN HOLDINGS CORP.; and MOEN INCORPORATED Defendants

COUNSEL: Kiet Truong and Peter D. Kazdan, for the Plaintiffs Garrett Harper, for the Defendant, MOTION SPECIALTIES Mitch Koczerginski and Lindsay Lorimer, for the MOEN Defendants

HEARD: December 20, 2021

CORRECTED RULING ON MOTION: The text of the original Ruling was corrected on May 30, 2022, and the description of the correction is appended.

RULING ON MOTION

CAREY J.

[1] This is a motion for an order protecting the confidentiality of certain information and documents, some not yet disclosed. The Moen defendants, which consist of a general partnership between “Global Plumbing Group Canada ULC” and “MB Moen Holdings Corp.” submit that this information regarding Moen’s product design and manufacturing processes is highly proprietary, requiring a higher degree of protection from disclosure to non‑parties than is afforded by r. 30.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”).

[2] Without the order sought, the Moen defendants say that their commercial interest in this information is at risk.

[3] The plaintiffs and the defendant, Motion GP Inc. as General Partner for Motion LP, carrying on business as Motion Specialties (“Motion Specialties”), oppose the motion as premature, unnecessary, and based on evidence that fails to satisfy the appropriate high onus opposed by the applicable legal test for granting such orders. They allege that the Moen defendants have unnecessarily delayed this litigation in a manner that undermines the principles of affordability and proportionality and ultimately the goals of fairness and justice, which underpin the Rules. They urge the dismissal of the Moen defendants’ motion with costs.

Overview

[4] The plaintiff, Mr. Jarrett Sim, says that about three years ago in February 2019, he was getting out of his home bathroom shower in LaSalle, Ontario, and placed his hand on the “Grab Bar System” for support when the bar “ripped free” and gave way causing him to fall and injure himself. He alleges on this motion that “subsequent examination of the location of the installation of the grab bar system revealed that one of the secure mounts was placed over a drywall seam, which ultimately caused the failure of the grab bar system.” He further alleges that “Moen actively represented in the instructions and the advertising for the grab bar system that the grab bar system could be securely installed anywhere on any wall.”

[5] Significantly, Mr. Sim had a history of knee surgeries after a 2010 injury at his workplace. He says that just prior to the incident at issue in this case, he had undergone the most recent of his knee surgeries. Following that surgery, Motion Specialties was engaged by the Workplace Safety Insurance Board (“WSIB”) and contracted with the defendant, Motion Specialties, to attach the grab bar to a wall in the bathroom of Mr. Sim’s home in order to assist in his recovery.

[6] Mr. Sim subsequently issued a claim in negligence seeking damages from both the manufacturer, Moen, and the seller/installer of the bar, Motion Specialties.

[7] The statement of claim was issued in October 2019. The claim, issued on behalf of Mr. Sim, his wife Dianne, and their minor daughters alleges serious injury to Mr. Sim and seeks compensation under the Negligence Act, R.S.O. 1990, c N.1, Sale of Goods Act, R.S.O. 1990, c S.1, and the Family Law Act, R.S.O. 1990, c. F.3.

[8] Among the allegations against the Moen defendants are the following: the sale of an inferior product, product liability claims concerning the grab bar (safety bar) and anchors including manufacturing defects, and insufficient safety testing.

[9] Against Motion Specialties, the plaintiffs include allegations that the anchors were not properly supported in the wall studs and that the defendants failed to test the installed grab bar.

[10] While denying all allegations, the Moen defendants specifically deny that they were the manufacturer of the grab bar and anchors, and allege that the plaintiff was the author of his own misfortune. In the alternative, they allege the co‑defendant was negligent in the installation stage.

[11] All of the pleadings I have reviewed in this case are overly lengthy, dense, and replete with repetitive and unnecessary boiler plate language that is more likely to confuse than assist the trier of fact. While my summary may not do complete justice to the claims and defence, this is a straightforward personal injury case where there is a dispute over causation and damages.

[12] Among other allegations, the plaintiffs say the safety bar was not safe. They allege that it ripped out of the shower wall when Mr. Sim needed its support. On the face of the pleadings, it appears this could have happened as described above (for which the plaintiff bears the burden of proof).

[13] If the bar was not secured into the wall studs as alleged, this would be a more likely explanation than a design flaw in the grab bar or anchors. As the plaintiffs point out, there have been no productions. This motion is about the discovery plan.

[14] It has been three years since Mr. Sim fell in his shower.

Analysis

[15] It is important to note that while this case is summarized as one that is simple, the plaintiff has sued two separate corporations – the maker and the seller/installer – for over $1,000,000, with alternative routes to liability.

[16] The defendants each deny responsibility and accuse each other and Mr. Sim of negligence.

[17] The plaintiffs have served their affidavits of documents together with every Schedule ‘A’ production and the engineering report to all of the defendants.

[18] Motion Specialties have replied with its affidavit of documents and relevant Schedule ‘A’ productions.

[19] While the Moen defendants have produced a draft affidavit of documents, they did not, until October, provide any of the Schedule ‘A’ documentation listed including productions over which they claim confidentiality. Their affidavit material asserts that the plumbing accessory business in Canada is so competitive that any disclosure of their confidential designs, of which they cite almost 70, would seriously impact their commercial and business viability.

[20] The plaintiffs say that they have searched Canada’s Intellectual Property Database and found no patent or industrial design application in Canada by either Jang Lih Enterprises or Moen pertaining to the Grab Bar System. In any event, they say it is such a simple design that any engineering company could deconstruct the design and manufacture something similar. The only intellectual property the plaintiffs say they found is the registration by Moen of the name “Grab Bar System”.

[21] Rule 1.04(1) of the Rules codifies the general principle of interpretation of the Rules: “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[22] I note that on this motion, the Moen defendants have filed a costs outline claiming that actual costs to date on this motion are over $21,000. Similar costs to the plaintiffs and the other defendant, even if they were in a position to easily sustain such pre-discovery costs, hardly seem to be in the spirit of the guiding principles of the Rules. The Rules are not designed to give an advantage to the party with the deepest pockets.

[23] I cannot conclude that the Moen defendants have satisfied the high onus set out in the “Sierra test”: see Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. They have established neither an important commercial interest in the information nor that there are no reasonably alternative measures to the confidentiality order: see Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 789, 100 O.R. (3d) 510.

[24] I accept the evidence on this motion as to the ease with which the Moen defendants’ Grab Bar System could be duplicated, and conclude its level of secrecy is such as to not require it to be treated as confidential. The Moen defendants’ assertion that their competitive position would be seriously damaged by the exposure of the design for a multitude of parts appears to be hyperbole, bordering on fantasy.

[25] I also conclude that there is protection afforded through the implied undertaking rule under r. 30.1 sufficient to protect the low level, if any, of uniqueness that exists in the Moen defendants’ product.

[26] I agree with the plaintiffs and Motion Specialties that there has been unnecessary delay here that is prejudicial to those parties.

[27] As stated in the responding factum of the plaintiffs, “[d]elay at all stages should be recognized as a serious form of prejudice that undermines affordability and proportionality and rots the uncompromisable goals of fairness and justice”: see Letang v. Hertz Canada Limited, 2015 ONSC 72, at para. 19.

Conclusion

[28] An order will go pursuant to the plaintiffs’ request that full productions of the Moen defendants, without the benefit of a confidentiality agreement, be made no later than March 30, 2022 and discoveries to take place before June 30, 2022.

[29] Further, should the productions not be received in full by March 30, 2022, the plaintiffs may bring a motion without notice dismissing the defence of the Moen defendants.

[30] The counter-motion of the Moen defendants is dismissed.

Costs

[31] Costs of both motions to the plaintiffs. If the parties cannot agree to costs, they may make submissions to the court in writing within 30 days.

“original signed and released by Carey J.”

Thomas J. Carey Justice

Released: March 10, 2022 Correction Released: May 30, 2022

CORRECTION

In the original Ruling, released March 10, 2022, paragraph [19] read as follows:

[19] While the Moen defendants have produced a draft affidavit of documents, they did not, until October, provide any of the Schedule ‘A’ documentation listed including productions over which they claim confidentiality. Their affidavit material asserts that the plumbing accessory business in Canada is so competitive that any disclosure of their confidential designs, of which they cite almost 70, would seriously impact their commercial and business liability.

The word “liability” located at the end of the paragraph has been changed to “viability” and paragraph [19] now reads as follows:

[19] While the Moen defendants have produced a draft affidavit of documents, they did not, until October, provide any of the Schedule ‘A’ documentation listed including productions over which they claim confidentiality. Their affidavit material asserts that the plumbing accessory business in Canada is so competitive that any disclosure of their confidential designs, of which they cite almost 70, would seriously impact their commercial and business viability.

In the original Ruling, released March 10, 2022, paragraph [24] read as follows:

[24] I accept the evidence on this motion as to the ease with which the Moen defendants’ Grab Bar System could be duplicated, and conclude its level of secrecy is such as to not require it to be treated as confidential. The Moen defendants’ assertion that their competitive imposition would be seriously damaged by the exposure of the design for a multitude of parts appears to be hyperbole, bordering on fantasy.

The word “imposition” located at line 4 of the paragraph has been changed to “position” and paragraph [24] now reads as follows:

I accept the evidence on this motion as to the ease with which the Moen defendants’ Grab Bar System could be duplicated, and conclude its level of secrecy is such as to not require it to be treated as confidential. The Moen defendants’ assertion that their competitive position would be seriously damaged by the exposure of the design for a multitude of parts appears to be hyperbole, bordering on fantasy.