Court File and Parties

COURT FILE NO.: CV-15-540527 DATE: 2022 03 11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: VICTORIA ABBOTT-FLEMING and MICHAEL ABBOTT-FLEMING, Plaintiffs - and - ASHLEIGH LEVESQUE, DENISE GILES, DR. T. RIOS-ALBA, DR. J. MERMLSTEIN and FOX FLIGHT INC., Defendants

BEFORE: Associate Justice Todd Robinson

COUNSEL: M. Karabit, for the defendants, Ashleigh Levesque, Denise Giles, and Fox Flight Inc. (moving parties) C. Fuhr, for the plaintiffs (responding parties) L. Constantine, for the defendant, Dr. T. Rois-Alba

HEARD: December 10, 2021 (by videoconference)

REASONS FOR DECISION (Undertakings and Refusals)

[1] Victoria Abbott-Fleming and her spouse, Michael Abbott-Fleming, have sued the defendants for an aggregate of $18 million in damages arising from an alleged sciatic nerve tear in her left leg said to have occurred during a medical repatriation flight from New York to the United Kingdom (through Canada) in January 2014. During a holiday trip to New York with her spouse, Ms. Abbott-Fleming contracted swine flu. It required hospitalization, a medically-induced coma, and multiple interventions, including ventilation and a tracheostomy. It was determined that she should return to the UK by air ambulance.

[2] Fox Flight Inc. was hired to provide the international air ambulance services to fly Ms. Abbott-Fleming back to the UK. Dr. Rios-Alba (a US-based physician), Ashleigh Levesque (a registered nurse), and Denise Giles (a respiratory therapist) accompanied and monitored Ms. Abbott-Fleming during her transport back to the UK. Dr. Rios acted as the physician escort for the flight. Ms. Levesque and Ms. Giles are both employees of Fox Flight Inc. The action has been discontinued against the remaining defendant, Dr. Mermlstein, who was Ms. Abbott-Fleming’s treating physician in New York.

[3] The plaintiffs allege that Ms. Abbott-Fleming was sedated and restrained for the lengthy duration of the flight and, further, that the extent of restraints and her lack of movement resulted in the sciatic nerve tear in her left leg. Ms. Abbott-Fleming had pre-existing Complex Regional Pain Syndrome (CRPS) from a prior injury that had resulted in an above-knee amputation of her right leg. The plaintiffs allege that CRPS spread into her left leg, ultimately requiring a similar above-knee amputation of that leg.

[4] Over ten years before the injury at issue in this litigation, Ms. Abbott-Fleming suffered a workplace accident in the UK that resulted in development of CRPS and the amputation of her right leg. Litigation was commenced in the UK, in the course of which it seems that expert reports may have been prepared in support of Ms. Abbott-Fleming’s claim. That litigation was ultimately settled out of court.

[5] In this action, both plaintiffs were examined for discovery in May 2019. During their examinations, both plaintiffs gave numerous undertakings, as well as taking questions under advisement and refusing to answer other questions. Most of the plaintiffs’ undertakings remained outstanding for over a year, although some answers and partial answers had been provided. When this motion was brought by Ashleigh Levesque, Denise Giles, and Fox Flight Inc., over two years had elapsed since the examinations. Sufficiency of answers to a number of undertakings still remained in dispute and answers to matters under advisement and refusals were still being sought. The motion is supported by Dr. Rois-Alba.

[6] Most of the disputed undertakings and refusals were resolved prior to the motion hearing. A consent order was made at a case conference before me on October 27, 2021. The only remaining disputed matters arise from the examination of Victoria Abbott-Fleming, namely sufficiency of two undertakings and answers to nine refusals and unanswered matters under advisement. The disputed matters were grouped in argument as follows:

(a) failure to provide a complete list of Ms. Abbott-Fleming’s medications and dosages (Undertaking #4);

(b) failure to produce notes of symptoms experienced by Ms. Abbott-Fleming (Undertaking #8);

(a) refusals to produce pleadings and expert reports from litigation commenced by Ms. Abbott-Fleming in the UK arising from the circumstances leading to her first amputation (Under Advisements #1, #13 and Refusal #1);

(b) refusals to produce Ms. Abbott-Fleming’s counselling records (Under Advisements #3 and #12);

(c) a refusal to produce a prior funding application for Ms. Abbott-Fleming’s wheelchair (Under Advisement #4);

(d) a refusal to produce documents submitted to a local municipal planning council for approval of a conservatory that was added to Ms. Abbott-Fleming’s house (Under Advisement #6); and

(e) refusals to produce drafts of Ms. Abbott-Fleming’s memoir and any notes she provided to her ghostwriters (Under Advisements #14-15).

[7] Excepting the extent of counselling records sought by the defendants, I am ordering answers or further answers to all remaining disputed questions.

Analysis

[8] My authority to compel further answers to insufficiently answered undertakings and to require the plaintiffs to answer improperly refused questions on discovery is found in Rule 34.15(1) of the Rules of Civil Procedure, RRO 1990, Reg 194. That authority is properly exercised if I am satisfied that Victoria Abbott-Fleming has failed to sufficiently answer undertakings or has failed to answer proper questions during her discovery.

[9] In assessing whether Ms. Abbott-Fleming has failed to answer questions, I have considered the specific questions in light of Rule 31.07(1). That rule sets out that a party has failed to answer a question if (a) the party refuses to answer the question, (b) the party indicates that the question will be considered or taken under advisement, but no answer is provided within 60 days, or (c) the party undertakes to answer the question, but has not answered it within 60 days. I have also considered Rule 31.07(4), which confirms the mandatory obligation on a party to honour undertakings. A party giving an undertaking must comply with it. Only the recipient of the undertaking can relieve the undertaking party from compliance.

List of medications and dosages (Undertaking #4)

[10] Victoria Abbott-Fleming gave a best efforts undertaking to provide a list of medications and dosages that she “was on” from November 2013 to present time. From the evidence filed, only a list of medications and dosages from 2017 and 2020 has been provided. Ms. Abbott-Fleming takes the position that the documents produced are the only charts created and that the requested information may be obtained through the notes and records of her various physicians, which outline all prescribed mediations. Ms. Abbott-Fleming thereby submits that the undertaking has been answered. I do not agree.

[11] The defendants correctly point out that what a physician prescribes and what prescriptions a patient actually fills and takes are not necessarily the same. The best efforts undertaking was to confirm what Ms. Abbott-Fleming “was on”. I accept that the question asked was focused on the medications and dosages she was actually taking, not what she was prescribed. Since the undertaking was not limited to producing copies of charts that already existed, providing charts for only 2017 and 2020 is not a sufficient answer. There is nothing before me indicating that Ms. Abbott-Fleming has made any efforts (let alone best efforts) to confirm what medications and dosages she was actually taking from November 2013 through 2016, or from 2018-2019.

[12] I am thereby satisfied that this undertaking remains outstanding. Best efforts remain to be made to confirm and advise the medications and dosages that Ms. Abbott-Fleming was taking from November 2013 through 2016 and in 2018-2019.

Notes of symptoms (Undertaking #8)

[13] As framed in the refusals and undertakings chart, Victoria Abbott-Fleming gave an undertaking to produce any handwritten notes of symptoms experienced from any period of time, if such notes are found. Her answer to that undertaking was, “Plaintiff cannot locate any notes at this time (with the exception of notes to and from counsel both past and present).” The defendants seek production of the “notes” exchanged with counsel, or at least the material facts in those notes.

[14] Part of the dispute on Ms. Abbott-Fleming’s answer is whether “notes” provided to counsel are captured by the undertaking. I have reviewed the transcript. The questions leading up to the undertaking started with a question about where Ms. Abbott-Fleming recorded her symptoms to discuss with doctors. Ms. Abbott-Fleming ultimately confirmed that she recalled “jotting down” symptoms and taking them to her doctors, but could not recall if they were handwritten notes or notes taken on iPads. Examining counsel then sought, and received, an undertaking to produce any notes of Ms. Abbott-Fleming’s symptoms subsequently found from any period.

[15] In my view, in context, the undertaking was specific to notes “jotted down” or recorded for the purpose of doctor appointments. Nothing in the language of the questions suggests a broader or more expansive interpretation to any notes of symptoms taken in other contexts. It follows that what the defendants seek is not within the scope of the original undertaking.

[16] Nevertheless, parties are entitled to ask questions arising from answers to undertakings, since answers to undertakings are answers to questions asked on discovery. Based on the answer given, which suggests that there may have been notes exchanged between Ms. Abbott-Fleming and her counsel about her symptoms, the requested production evidently arises from the answer provided. It is more consistent with Rules 1.04(1) and (1.1) to deal with the defendants’ follow-up request now, rather than require further examination and, potentially, another motion.

[17] The defendants argue that they are entitled to know what symptoms Ms. Abbott-Fleming reported to her lawyers that she was experiencing. They are not seeking copies of the emails, which they acknowledge could contain solicitor-client privileged communication, but rather only seek disclosure of the symptoms reported. The defendants point to Pearson v. Inco Limited, [2008] OJ No 3589, in which Cullity J. endorsed and applied case law confirming that not all communications with a solicitor are privileged and that relevant facts contained in privileged documents are still discoverable.

[18] Ms. Abbott-Fleming submits that the request is a “fishing expedition” given the original undertaking and that it would be a significant exercise to go through all of the emails between Ms. Abbott-Fleming and counsel to identify relevant emails. Ms. Abbott-Fleming submits that it is a disproportionate exercise with limited relevance.

[19] In my view, Ms. Abbott-Fleming’s own records of her symptoms are relevant. This dispute arose because of the answer to undertaking provided. Had the answer not included the caveat, “with the exception of notes to and from counsel both past and present,” the dispute likely would not have arisen at all. Had that answer been given during the discovery, examining counsel would have been able to ask questions probing the extent to which Ms. Abbott-Fleming communicated her symptoms to her lawyers. Those facts in any such communication are not protected by solicitor-client privilege and the inquiry about what, if any, symptoms were expressed to her counsel arises directly from the answer given.

[20] Rule 29.2.03 sets out the considerations to be applied by the court in assessing proportionality of discovery-related orders. However, the party taking the position that an order to answer a question or produce a document lacks proportionality has the burden of establishing it. Ms. Abbott-Fleming has tendered no evidence and has not made a convincing argument for why the requested order lacks proportionality. For example, there is no indication of the volume of emails to be reviewed or the estimated time required to complete the review, taking into account tactics such as running keyword searches (which is not unduly onerous). Proportionality considerations in an $18 million claim are also different than in a claim within the monetary jurisdiction of the simplified procedure in Rule 76.

[21] I am not satisfied that it is disproportionate to require that Ms. Abbott-Fleming make reasonable efforts to review emails and confirm whether she relayed to or otherwise advised her lawyers by email of any symptoms she was experiencing and, if so, to disclose the material facts in those emails about the specific symptoms and when they were experienced. Since the inquiry reasonably arises from the answer to undertaking provided, I am prepared to order that an answer to that further inquiry be provided in lieu of an order that Ms. Abbott-Fleming re-attend for examination on the point.

Pleadings and expert reports from UK litigation (Under Advisements #1, #13 and Refusal #1)

[22] The plaintiffs agreed to produce copies of the pleadings, without admitting relevance, because the pleadings are in the public record. If they have not already been provided, they shall be provided within 15 days.

[23] The plaintiffs maintain their refusal to produce expert reports from the UK litigation on the basis that they are irrelevant. The plaintiffs state that they have excluded the damages from the prior UK litigation in this action. They also rely on Wicks v. Green, 2021 ONSC 6430 at para. 31, in which McArthur J. held that future care costs and loss of income reports from a previous accident were based on medical assumptions and therefore irrelevant where prior medical reports had already been disclosed.

[24] I am satisfied that expert reports prepared on behalf of Victoria Abbott-Fleming in the UK litigation are relevant and ought to be produced. Wicks is distinguishable. It dealt with the relevance of future care and income loss reports from a prior motor vehicle accident to the assessment of damages in a subsequent slip and fall incident. Unlike Wick, Ms. Abbott-Fleming’s injuries at issue in the prior and current litigation are similar, including that both resulted in above-the-knee amputations due to CRPS. Moreover, there is no evidence before me regarding what (if any) expert reports were obtained in the UK litigation, absent which I cannot determine if the same analysis applied in Wick is applicable here. Other case law put before me is also distinguishable. In those cases, there was evidence supporting recovery from effects of the first injury, which is not the case here.

[25] I accept the defendants’ argument that, given the similarities between the two injuries, they need not accept the plaintiffs’ position that they have excluded prior damages from the current damages calculation. The defendants are entitled to probe the extent of Ms. Abbott-Fleming’s pre-existing condition and future care needs following the prior above-knee amputation of her right leg. As set out by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 SCR 458 at para. 35, the defendants not liable to compensate Ms. Abbott-Fleming for any debilitating effects of her pre-existing condition that would have been experienced in any event. In addition, the court is entitled to consider whether there is a measurable risk that Ms. Abbott-Fleming’s pre-existing condition would likely have detrimentally affected her in the future, regardless of the defendants’ negligence. As acknowledged in Athey, that may be a factor in reducing any overall award.

[26] I also accept the defendants’ argument that because Ms. Abbott-Fleming has already received compensation for the first injury in settling the UK litigation, there is a higher risk for potential double recovery if the court does not have a full appreciation of the prior injury and amputation and its ongoing debilitating defects. I further accept that expert reports are likely to provide an accurate, objective, and independent measure of Ms. Abbott-Fleming’s condition after the first similar injury (and its effects), as well as her future care needs at the time. That information is likely probative to matters such as the difference in care needs following the two injuries, which is relevant to assessing debilitating effects of the prior injury and her pre-existing condition.

[27] Any expert reports and opinions obtained on behalf of Victoria Abbott-Fleming in the UK litigation shall accordingly be produced. Ms. Abbott-Fleming must also confirm whether a future care costs report was completed, as requested in refusal #1. Whether those expert reports are ultimately admissible and what, if any, weight is given to them are matters more properly addressed at trial.

Counselling records (Under Advisements #3 and #12)

[28] Two disputed questions relate to counselling records, both of which were taken under advisement: (i) production of records of the person in Stockport, England who provided the initial counselling that Ms. Abbott-Fleming received after her first injury, and (ii) production of all counselling records going back to 2003. The plaintiffs have only agreed to produce counselling records from 2009 (i.e., five years prior to the accident).

[29] I agree with the plaintiffs that the request for counselling records back to 2003 (including the records from the original counselling in Stockport) is overbroad and not relevant to assessing Ms. Abbott-Fleming’s mental, emotional, or physical condition at the time of the second accident. I am not convinced by the defendants’ arguments that counselling records more than five years pre-accident are relevant to or will reasonably bear on assessing the extent of Ms. Abbott-Fleming’s pre-existing conditions.

[30] Even if I am wrong in finding that counselling records from 2003-2009 are not relevant in this action, I nevertheless find that production of counselling records back to 2003 is not proportional. I am not convinced that the time and expense of producing all counselling records back to the original injury in 2003, with the likely delay in this litigation from obtaining and producing those records, is reasonable or justified in this case. In my view, changes or exacerbation of Ms. Abbott-Fleming’s health conditions arising from the second accident are reasonably ascertained through assessment of five years of pre-accident records and the post-accident records. I do not see additional production of records before 2009 as being materially probative in determining the disputed issues in this litigation.

[31] The materials filed indicate that counselling records have only been provided for 2014-2015. To the extent that all counselling records have not been produced from 2009 to present, as agreed, best efforts shall be made to obtain and produce them. Since the plaintiffs’ agreement to produce them dates back to March 2020, I see no reason why more than 30 days should be required at this point.

Wheelchair funding application (Under Advisement #4)

[32] I am not convinced by the plaintiffs arguments for why the wheelchair funding application submitted by Ms. Abbott-Fleming prior to the subject accident is irrelevant. During submissions, Ms. Abbott-Fleming’s counsel confirmed that part of the plaintiffs’ claim is for the cost of a wheelchair on the basis that no funding was available before the second amputation. I agree with the defendants that the statements and representations made in the application about the extent of Ms. Abbott-Fleming’s existing symptoms and limitations are relevant in assessing Ms. Abbott-Fleming’s pre-existing state of health. The funding application shall be produced.

Conservatory planning application documents (Under Advisement #6)

[33] The defendants seek production of documents submitted to the local municipal planning council for a conservatory that was added to Victoria Abbott-Fleming’s home. Costs of that conservatory are claimed as damages in this litigation. Three applications were made to the planning council to build the conservatory: first in 2012, next in 2013 (prior to sustaining the injury at issue), and finally in 2014 (after sustaining the injury, but before the amputation).

[34] The disputed question was specifically for production of “the documents that were submitted to the planning council for each of the three conservatory planning requests”. The plaintiffs initially advised in March 2020 that they would provide best efforts, then advised that Michael Abbott-Fleming could not locate the plans, then revised their position to a refusal on the basis that damages received from the prior UK litigation have been excluded from this litigation, so the documents were thereby not relevant.

[35] I agree with the defendants that the requested documents are relevant, so need not address the plaintiffs’ apparent switch in position from agreeing to make best efforts to produce the documents to a refusal on the basis of relevance. There is evidence supporting that the addition of the conservatory was contemplated well prior to Ms. Abbott-Fleming’s left leg amputation, even though Ms. Abbott-Fleming gave discovery evidence that the addition of the conservatory was in anticipation of not being able to travel as much because of her left leg amputation and that it would not have been needed if she had not had the left leg amputation. During Michael Abbott-Fleming’s discovery, his evidence was that the size of the conservatory was increased because of his spouse’s second injury, but also that roofing changes unrelated to the injury were required by the planning council.

[36] Since costs of the conservatory addition are claimed as damages in this action, the plans and documents submitted to the planning council are relevant to both assessing what changes may have been made after or as a result of the injury at issue and determining the extent of any recoverable damages for the costs of the conservatory. The request for production was a proper question and the documents should be produced. Ms. Abbott-Fleming shall accordingly make best efforts to produce documents submitted to the planning council for each of the three conservatory planning requests, including requesting the documents from the planning council, if necessary, or providing the defendants with a contact at the planning council and authorization to obtain the documents directly from it.

Memoir drafts and notes (Under Advisements #14-15)

[37] During her discovery, Victoria Abbott-Fleming confirmed that she began to write a memoir in summer of 2013 (before the plaintiffs’ trip to New York), which she had started writing again prior to her examination for discovery. Ms. Abbott-Fleming confirmed that she had been using ghostwriters to write the memoir, who had been using notes that she provided to write the book. Requests for production of the drafts of the memoir and the notes provided to ghostwriters were taken under advisement.

[38] The defendants submit that the draft memoirs and ghostwriter notes are likely to contain details of what Victoria Abbott-Fleming believes or alleges to have occurred to her as well as when it occurred. The defendants accordingly argue that the drafts of the memoir and the notes are relevant to allegations in the pleadings and to issues of credibility, namely Ms. Abbott-Fleming’s perception, memory, narration, and sincerity, all of which are an appropriate scope of examination during a discovery.

[39] The plaintiffs maintain their refusal on the basis that the memoirs and notes are not relevant, arguing that the information sought by the defendants is already available in produced medical records. That argument has no merit. The fact that relevant information that may be contained in the memoirs is also available elsewhere does not render the memoirs or notes irrelevant. Also, since I was directed to nothing in the record about specific content of the memoirs, I have no basis upon which to accept the proposition that the same information is available elsewhere.

[40] The plaintiffs also support their refusal by relying on Bean v. Manufacturers Life Insurance Co., [2005] OJ No 6155 (Master) at paras. 17-19. That case involved alleged psychological disorders that were said to have aggravated the plaintiff’s physical ailments. The defendant sought production of the plaintiff’s personal diary. Master Hawkins declined to order production of the diary. He held that, although relevant, the diary was not critical to the truth-finding process and that it may not be objective since “[t]he plaintiff was free to write anything she wanted to in that diary, whether objective or not.” The plaintiffs submit that Ms. Abbott-Fleming’s memoir and notes should be viewed the same.

[41] I agree with the defendants that the decision in Bean is distinguishable. There is a distinction between a personal diary and a memoir. Ms. Abbott-Fleming’s discovery evidence was that she decided to write the memoir to “tell the story of CRPS, to get the awareness out there, because it’s not sufficient.” It was written with the intention of being available to and reviewed by the public. It was thereby not written with any reasonable expectation of privacy. I do agree with the plaintiffs that, like the diary in Bean, the information in the memoir may not be truly objective. However, Ms. Abbott-Fleming’s subjective views and understanding about what transpired and her condition are matters that will be before the court at trial. Considering Ms. Abbott-Fleming’s own discovery evidence on the purpose of the memoir, I accept the defendants’ submission that it ought reasonably to contain accurate and honest accounts of Ms. Abbott-Fleming’s experience, unless she is trying to mislead the public (which is not argued by the defendants nor suggested by the plaintiffs).

[42] In my view, the memoir, prior drafts, and the notes provided to ghostwriters are all relevant and producible documents. Ms. Abbott-Fleming submits that a production order is not required, since the book is now available for purchase and the defendants can thereby obtain a copy if they wish. That is not an answer. The request was for production of drafts and the notes provided to the ghostwriters, not for a copy of the final published version.

[43] The requests for production of the memoir drafts and notes provided to ghostwriters were proper and shall be answered.

Costs

[44] Costs submissions were made at the conclusion of argument in both events of the defendants or the plaintiffs being successful. The defendants have been substantially successful in their motion, so are entitled to costs. They seek costs of $8,151.82, including HST and disbursements, on a substantial indemnity basis. The plaintiffs submit that any costs award in favour of the defendants should be no more than $2,500.00 on a partial indemnity basis, in line with their own partial indemnity costs claim.

[45] The defendants argue that examinations for discovery were completed some 30 months before the motion hearing. Answers to undertakings have only been provided or agreements to provide answers reached on the eve of court attendances, such as scheduled case conferences before Ferguson J., the case conference before me, and the final return of this motion. The defendants submit that the plaintiffs have demonstrated a pattern of failing to follow through on promises to provide answers, including failing to comply with the consent order that I made on October 27, 2021 to provide various answers within 30 days, which had not been answered by the return of this motion.

[46] This motion was evidently necessary. I agree with the defendants that the history of this action demonstrates a pattern of conduct by the plaintiffs whereby pending court intervention has been required for the plaintiffs to comply with their obligation to answer undertakings. Many disputed undertakings, matters under advisement, and refusals were resolved only after this motion was brought. No reasonable explanation has been provided by the plaintiffs for their failure to satisfy undertakings sooner and their failure to comply with my consent order dated October 27, 2021. I have upheld their position on only one of the argued undertakings and refusals.

[47] I am mindful that the plaintiffs did act reasonably once this motion was brought by working with the defendants to resolve many disputed matters without the need for argument. However, they did so only after the defendants’ motion record was served. That record includes correspondence showing repeated prior requests to plaintiffs’ counsel dating back to 2019 seeking the plaintiffs’ answers to undertakings and asking whether refusals were being maintained.

[48] Acting reasonably in response to a motion does not excuse the plaintiffs from costs liability for that motion, particularly when it was only necessitated by their failure to comply with undertakings and improper refusal of relevant questions. Had the plaintiffs conducted themselves prior to the motion being brought as they did in response to it, the motion may have been avoided entirely or at least would have been much narrower (likely with less legal expense) from the outset.

[49] Substantial indemnity costs are awarded to express the court’s disapproval of a party’s conduct: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766 at para. 8. I am satisfied that the plaintiffs’ ongoing failure to comply with their obligation to answer undertakings without threat of court intervention, including failing to comply with the consent order that I issued to answer certain undertakings, has added unnecessary delay and cost to this proceeding. The plaintiffs have the primary responsibility to move this action forward. They have not taken their obligation to comply with undertakings seriously, to the point of taking steps to set the action down for trial without having complied with long-outstanding undertakings. In these circumstances, it is neither fair nor just to require the defendants to absorb all but partial indemnity legal costs of compelling the plaintiffs’ compliance with their discovery obligations. In my view, the plaintiffs’ conduct warrants an elevated costs award.

[50] The action is a significant one. It involves a claim for $18 million based on complex medical negligence and a prior, similar injury. I accept that the answers and production sought on this motion were important to the defendants’ ability to properly defend the claim against them. Although the defendants were not entirely successful in their motion, they were substantially successful.

[51] Overall, in my view, the costs claimed by the moving defendants are not beyond the reasonable expectations of the parties. The plaintiffs’ costs outline is lower, but their materials before the court are less detailed. The lawyer hours spent and rates claimed by the defendants are reasonable. However, there is no information on the experience or year of licencing for the paralegal who assisted in the motion materials. I thereby cannot accept that the rate claimed (which exceeds the typical rate allowed for a law clerk performing similar work) is appropriate.

[52] Considering the foregoing, and having weighed the factors in Rule 57.01, I find that the fair and reasonable amount of costs payable by the plaintiffs to the moving defendants in respect of this motion is $7,500.00, inclusive of HST and disbursements, on a substantial indemnity basis, payable within thirty (30) days.

Disposition

[53] I accordingly order as follows:

(a) Victoria Abbott-Fleming shall, within thirty (30) days:

(i) provide an answer to the outstanding portion of undertaking #4, namely making best efforts to confirm and advise the medications and dosages that Ms. Abbott-Fleming was taking from November 2013 through 2016 and in 2018-2019;

(ii) make reasonable efforts to review emails and confirm whether she relayed to or otherwise advised her lawyers by email of any symptoms she was experiencing and, if so, shall disclose a summary of the material facts from those emails about the specific symptoms and when they were experienced;

(iii) provide an answer to refusal #1, namely to confirm whether Ms. Abbott-Fleming had a future care costs report prepared as a part of the settlement of the UK litigation;

(iv) produce copies of all expert reports or opinions obtained on behalf of Ms. Abbott-Fleming in the UK litigation, if any, as requested in under advisement #1;

(v) unless already provided, provide a partial answer to under advisement #12 by making best efforts to produce any outstanding and unproduced counselling records from 2009;

(vi) provide an answer to under advisement #4 by making best efforts to obtain and produce the requested funding application for Ms. Abbott-Fleming’s prior wheelchair;

(vii) provide an answer to under advisement #6 by making best efforts to obtain and produce the requested documents submitted to the planning council for each of the three conservatory planning requests; and

(viii) provide answers to under advisements #14-15 by making best efforts to obtain and produce the requested drafts and notes.

(b) Unless already provided, Victoria Abbott-Fleming shall, within fifteen (15) days, produce copies of all pleadings in the UK litigation.

(c) The plaintiffs shall pay to the moving defendants their costs of this motion, fixed in the amount of $7,500.00, inclusive of HST and disbursements, on a substantial indemnity basis, payable within thirty (30) days

(d) This order is effective without further formality.

ASSOCIATE JUSTICE TODD ROBINSON DATE: March 11, 2022