Court File and Parties

COURT FILE NO.: CV-19-479 DATE: 2022-04-05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Abate Endale Plaintiff – and – Vanessa Parker Defendant

Counsel: A. Franzke, for the Plaintiff A. Brown, for the Defendant

HEARD: March 7, 2022

The Honourable Justice m.j. valente

Reasons on Motion

[1] This action arises out of a motor vehicle accident that occurred on May 28, 2017 resulting in alleged damages to the plaintiff.

[2] The defendant brings this motion for an order compelling the plaintiff to answer undertakings resulting from his examination for discovery, to pay the costs associated with obtaining the documents required to satisfy his undertakings and to produce a further and better affidavit of documents.

[3] While the defendant has agreed to pay the reasonable costs associated with copying the required documents, she looks to the plaintiff to pay all other costs associated with obtaining the required documents. The plaintiff is prepared to provide the documents but only at the defendant’s expense. The documents at issue are clinical notes and records of the plaintiff’s treating physician for the three years preceding the accident to the date of production and the updated file of a walk-in clinic attended by the plaintiff.

[4] As Sloan J. noted in Trumble v. Soomal, 2020 ONSC 8097, at para. 18, “[I]t is unfortunate that, in 2020, the case law on the issue of production of somewhat routine medical and work records in personal injury litigation has not been more definitively decided, at least on the case law referred to before me”. Indeed, at least in the past, there appears to be a divergence of opinion from the members of this Court on the issue.

[5] Both the plaintiff and defendant agree that the starting point for my analysis is Rule 30.02 of the Rules of Civil Procedure, R.R.O. 1990 O. Reg 194. Rule 30.02(1) provides as follows:

Disclosure

30.02(1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

[6] Rule 30.01 further provides some clarity with respect to when a document is to be found in the “power of a party”:

30.01(1) In rules 30.02 to 30.11,

(b) a document shall be deemed to be in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.

[7] The first question to be addressed respecting the applicability of Rule 30.02(1) to the facts before me is whether the documents sought to be produced by the plaintiff are relevant? I have no difficulty in finding that the clinical notes of the plaintiff’s treating physician pre-dating the accident by only some three years along with the supplementary updated file of a treating walk-in clinic (collectively, the “Documents”) are relevant.

[8] I also have no difficulty finding that the plaintiff is entitled to obtain copies of the Documents from the treating physician and clinic, whereas the defendant is not.

[9] Notwithstanding this determination, counsel for the plaintiff submits that the Documents are not in the power of his client. Plaintiff’s counsel relies on the decision of the Supreme Court of Canada in McInerney v. MacDonald, [1992] 2 S.C.R. 138, to support his argument. In the McInerney decision, the Supreme Court found at p. 154

The patient’s interest in his or her records is an equitable interest arising from the physician’s fiduciary obligation to disclose the records upon request. As a part of that relationship of trust and confidence, the physician must act in the best interests of the patient. If the physician reasonably believes it is not in the patient’s best interests to inspect his or her medical records, the physician may consider it necessary to deny access to the information.

[10] While I accept the nature of the fiduciary relationship between patient and physician as articulated in McInerney, there is no evidence before me to suggest that it is in the plaintiff’s best interests that the Documents not be disclosed. Therefore, I find that based on the facts of this case, the Documents are within the power of the plaintiff.

[11] In the 1998 decision of Demiroglu v. Kwarteng, [1998] O.J. No. 4472 (Gen. Div.), Associate Judge Peppiatt (then referred to as Master) found that when records are in the plaintiff’s “power”, he is required to produce them under Rule 30.02(1), and furthermore, “[w]hen a party is obliged to do something he must pay whatever cost is incurred in discharging that obligation unless there is a specific provision to the contrary in the Rules”: at para. 3.

[12] On appeal of Associate Judge Peppiatt’s decision, this Court found that it was immaterial that the plaintiff was not relying on the subject documents in order to prove his case. Production of the documents has a twofold purpose: to prove the plaintiff’s case but also for the defendant to determine the nature and extent of the plaintiff’s injuries. This Court also found that any costs associated with obtaining the documents is irrelevant: “To hold otherwise would permit parties to avoid production of relevant documents on the basis of cost”: Demiroglu v. Kwarteng, [1999] O.J. No. 3117 (S.C.), at para. 17.

[13] Cullity J. in his 2002 decision of Ho v. O’Young-Lui, endorsed the approach adopted in Demiroglu, but also held at para. 5:

…the balance of the authorities at present appears to favour the view that, as a general rule, the expenses of a party’s productions are to be paid by that party in the first instance.

[14] While plaintiff’s counsel, in the matter before me, acknowledges the finding of Cullity J., he questions whether his client is the party “in first instance” relative to the Documents? I reject the plaintiff’s proposition in its entirety. In his decision, Cullity J. was referring to the costs of litigation which may be recoverable if the plaintiff is successful.

[15] In the more recent 2020 decision of Trumble at paragraph 22, Sloan J. of this Court found:

In what I will term a “run-of-the-mill” type of personal injury action, I find that the documents being requested are routine and reasonable and are producible at the expense of the plaintiff.

[16] While I acknowledge that there are decisions of this Court that require that the defendant pay to produce medical records requested by it, most of these decisions predate Cullity J.’s decision in Ho v. O’Young-Lui. I prefer the approach adopted by Associate Judge Peppiatt, and Cullity and Sloan JJ. because the payment of production of documents within a party’s power is simply the cost of litigation, subject of course to recovery of the disbursement depending on the trial result.

[17] I accept the principle that each party must fund its own case. The obligation to produce documents as required by Rule 30.01(1) cannot be the responsibility of an adverse party who may have better financial means to source the documents.

[18] In Hollo v. Toronto Transit Commission, 2010 ONSC 1656, Associate Judge Sproat comments at para. 15:

The plaintiff argued this motion raises access to justice issues and that if the plaintiff is required to obtain the documents, the plaintiff will be deprived of access to justice because she is not able to obtain the documents herself or is not able to pay her counsel to obtain them. In my view, it is the role of the legislators and of the Rules Committee to provide specific laws or rules that would enable to court to shift the costs of litigation in the manner proposed by the plaintiff. I decline to do so on this motion…

[19] Whereas I generally agree with the position of Associate Judge Sprout, I am also of the opinion, however, that this Court retains the discretion in exceptional circumstances to deviate from the general rule that each party must fund its own case. In the matter before me, however, there is no evidence of exceptional circumstances, including evidence that the plaintiff lacks the financial resources to produce the Documents.

[20] Finally, the plaintiff’s counsel submits that a distinction is to be drawn between those cases where the plaintiff’s production of documents is required prior to examinations and those instances where documents are to be produced to fulfill discovery undertakings. Plaintiff’s counsel directs me to the decision of Associate Judge McAfee in Yang v. Gazey, [2011] O.J. No. 6137 (S.C.), where the defendant successfully brought a motion pre-discovery for an order compelling the plaintiff to produce a further and better affidavit of documents. In that case, Associate Judge McAfee ordered the plaintiff to pay the costs of her productions, and in so doing, observed, at para 6, that “[i]t is not the defendant’s responsibility to fund the plaintiff’s lawsuit”. Plaintiff’s counsel submits that these facts are distinguishable from the case before me where the plaintiff is being asked to pay the cost of productions to satisfy his undertakings. I disagree. The obligations placed on litigants by Rule 30.02 are to be unconditionally applied throughout the litigation process.

[21] In her 2021 decision in Baljko v. Kay, 2021 ONSC 5320, Mitchell J. agreed that the rule in Yang v. Gazey applies to the fulfillment of undertakings post-discovery. In that ruling, she concurred at para. 27:

I concur with the reasoning in Yang v. Gazey that payment of these costs at first instance should be borne by the plaintiff as it is a cost of litigation. If successful, these costs will form part of the plaintiff’s assessable disbursements and will be recoverable. (footnote omitted)

[22] In the end result, I order that within 30 days from the date of my decision, the plaintiff shall deliver a further and better affidavit of documents and that within the same time frame, he answer his outstanding undertakings. I further order that the plaintiff pay the costs associated with the delivery of the documents in fulfillment of his undertakings, save for any reasonable photocopying charges which the defendant has agreed to pay.

[23] Counsel for the defendant submits that if successful, his client should be awarded her costs of the motion. Counsel for the plaintiff argues that no costs should be awarded to the successful party because of the confusion in the decided case law.

[24] I agree with the plaintiff’s position and exercise my discretion to make no order as to costs. Hopefully this decision will assist in clarifying the law on the issue of who bears the cost of documentary production and thereby avoid motions of this nature in the future.

M.J. Valente J.

COURT FILE NO.: CV-19-479 DATE: 2022-04-05 ONTARIO SUPERIOR COURT OF JUSTICE Abate Endale Plaintiff – and – Vanessa Parker Defendant REASONS ON MOTION M.J. Valente, J. Released: April 5, 2022