COURT FILE NO.: CV-14-502793 DATE: 2022 04 01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROSS GILBERT and MAUREEN LAGDEN, Plaintiffs - and - SHARON STEIN, TRACKMOUNT/GLOJACK LEASING LTD. and 1020683 ONTARIO LTD., Defendants
BEFORE: Associate Justice Todd Robinson
COUNSEL: S. Pegoraro, for the defendants, Sharon Stein and 1020683 Ontario Ltd. (moving parties) C. Sesek, for the plaintiffs (responding parties) O. Tavakoli, for Joseph Kawn (defendant in Court File No. CV-20-634800) J. Young, for Feng Gao and Li Gao (defendants in Court File No. CV-20-634800)
HEARD: December 9, 2021 (by videoconference)
REASONS FOR DECISION
[1] Sharon Stein and 1020683 Ontario Ltd. bring this omnibus motion seeking a variety of relief. The primary relief sought is setting aside the order that restored this action (the “2014 Action”) to the trial list and for an order for trial together with the action commenced by Sharon Stein and 1020683 Ontario Ltd. against Feng Gao, Li Gao, and Joseph Kawa in Court File No. CV-20-634800 (the “2020 Action”), with waiver of the deemed undertaking rule. They also seek production of documents from the plaintiffs and leave for further examinations for discovery. Finally, they seek an order that all productions made by the Peel Regional Police and the Ontario Provincial Police in the 2014 Action may be used in the 2020 Action and disclosed to the parties on the same terms and conditions as the Rule 30.10 orders made in the 2014 Action.
[2] The 2014 Action arises out of a motor vehicle accident in late 2013. Sharon Stein was driving the vehicle alleged to have pulled into Ross Gilbert’s path, causing him to lose control of his motorcycle and resulting in his alleged injuries. 1020683 Ontario Ltd. appears to be the owner of the vehicle driven by Sharen Stein. The action has been discontinued against Trackmount/Glojack Leasing Ltd.
[3] Examinations for discovery were completed in early 2015 and an unsuccessful mediation took place in 2016. The 2014 Action was ultimately set down for trial, but was struck from the trial list in early 2020 for failure to file a completed trial certification form. Over a year later, a motion was brought by the plaintiff in writing to restore the action to the trial list. The order was granted on May 5, 2021.
[4] The 2020 Action commenced by Sharon Stein and 1020683 Ontario Ltd. arises from a second motor vehicle accident suffered by Ross Gilbert in early 2018. The plaintiffs had themselves originally commenced an action against the same defendants as in the 2020 Action, but discontinued that proceeding in late 2020. Prior to commencing the 2020 Action, Sharon Stein and 1020683 Ontario Ltd. sought consent of the plaintiffs to issue a third party claim, but it was not given. Rather than bring a motion for leave to issue a third party claim, they instead commenced the 2020 Action seeking contribution and indemnity for any liability found against them in the 2014 Action.
[5] Although the plaintiffs initially opposed the set aside relief, they ultimately conceded that the order by which the 2014 Action was restored to the trial list should be set aside. The parties agreed that the plaintiffs’ previous motion restoring the action to the trial list could proceed concurrently with the defendants’ motion as a de novo hearing, so I heard argument on that issue as well.
[6] On consent, I am ordering that the prior order restoring this action to the trial list be set aside. I am also granting a fresh order restoring the action to the trial list. Since the plaintiffs have confirmed they are limiting their claim to injuries and damages from the first motor vehicle action, I am dismissing the request for trial together or one after another with the 2020 Action. Further production is being ordered on most of the items sought and leave for additional examination for discovery about the second motor vehicle accident is granted. Finally, on an unopposed basis, I am granting the relief sought dealing with use of productions from the Peel Regional Police and Ontario Provincial Police in the 2020 Action.
Analysis
Should the order restoring this action to the trial list be set aside?
[7] Prior to substantive motion submissions, the plaintiffs conceded that the order restoring the action to the trial list, obtained by motion in writing, should be set aside. Based on the circumstances under which the motion was brought and the order granted, I agree it should be set aside as a matter of procedural fairness.
Should the action be restored to the trial list?
[8] The parties agreed to a de novo hearing of the plaintiffs’ motion based on the record before me, which included the materials from the prior motion brought in writing. Having considered the submissions of counsel, I have determined that the action should be restored to the trial list.
[9] Rule 48.11 provides that, where an action is struck off a trial list, it shall not thereafter be placed on any trial list except with leave of the court. In their factum, the plaintiffs cited P&J General Contracting v. Taurasi Holdings, 2014 ONSC 2725 at paras. 4 and 8, arguing that Rule 48.11 does not set out a test for deciding when to grant an order to restore an action to the trial list and that an order should be granted where it is fair and just to do so. However, that is not the current approach to a motion under Rule 48.11.
[10] In Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, the Court of Appeal held that where the refusal to restore an action to the trial list will result in its dismissal (as would be the case here), the two-part test outlined in Nissar v. Toronto Transit Commission, 2013 ONCA 361 at paras. 30-31 applies, as informed by case law respecting Rule 48.14 dismissals. A plaintiff must show on a balance of probabilities that there is a reasonable explanation for the delay and, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice: Carioca's Import & Export Inc. at paras. 3 and 40-43. That test has been re-affirmed in D'Souza v. Brunel International Inc. (ITECC Consulting), 2019 ONCA 339 at paras. 5 and 8. I directed counsel to both of the decisions in Carioca's Import & Export Inc. and D'Souza, then affording all counsel an opportunity to review and make submissions in light of them.
[11] The defendants argue that the plaintiffs have not met their onus of providing a reasonable explanation for the delay, having failed to explain why this litigation has taken over 7 years to the point of moving to restore the action to the trial list.
[12] I am satisfied that there is no unexplained delay of any substance from commencement of the 2014 Action through to the mediation in early 2016. However, there is a nearly 3-year gap between mediation and passing of the trial record in January 2019. The only steps of which I am aware in that period are a Rule 30.10 motion being brought for production from the Peel Regional Police in January 2017 (for which the order is in evidence), an undertakings motions heard in October 2017, and a Rule 30.10 motion heard in December 2018 (the latter two being reflected in the case history, not the evidence). Although Mr. Gilbert suffered a second accident in early 2018, which led to commencement of a separate action that was ultimately discontinued, that is not itself an explanation for delay in this action.
[13] There is also a very limited explanation for delay since setting the action down for trial in early 2019. Various medical reports were obtained in 2019 and 2020 (from which I infer that the plaintiff was undergoing various medical assessments during that time). Plaintiffs’ counsel made some requests for production of medical and other records from third parties in seeking to satisfy the plaintiffs’ undertakings. The defendants’ production motion was also brought and heard in early 2021, following which some further answers to undertakings have been given. There is also evidence of the “administrative error” by plaintiffs’ counsel in failing to send a completed certification form to the court before the deadline.
[14] Taken as a whole, there is a weak explanation for delay from the plaintiffs in the 5-year period between mediation and plaintiffs’ counsel learning that the 2014 Action had been struck from the trial list and moving to restore it. However, although the burden of proof is on the plaintiffs, the conduct of all parties is relevant in determining whether to restore an action to the trial list. Meeting the objectives of timely and efficient access to justice and effective use of court resources requires all parties to play their part in moving actions forward, including counsel acting in a way that facilitates access to justice: Carioca's Import & Export Inc., supra at para. 53.
[15] Here, the defendants have brought undertakings and production motions, but there is no evidence before me suggesting that the defendants were requesting that the plaintiffs move the matter forward to trial in earnest. For example, there is nothing in the materials demonstrating requests to complete the certification form or advance pre-trial and trial scheduling after the trial record was delivered. It appears that the defendants were simply waiting for the plaintiffs to make the next move. Subject to the productions and additional examination disputes before me on this motion, the record supports that the action is essentially ready for trial.
[16] In these circumstances, although the plaintiffs’ explanation for delay could (and should) have been more robust, on the totality of the evidence in the context of this particular case, I find there is a sufficiently adequate explanation for delay to meet the first part of the test.
[17] On prejudice, I find no non-compensable prejudice to the defendants from allowing the 2014 Action to be restored to the trial list and proceed to trial. The defendants point out that it has been well over 7 years since commencement of the action. However, the prejudice at issue is to the defendants’ ability to defend the action as a result of the plaintiffs’ delay, not as a result of the sheer passage of time: Carioca's Import & Export Inc., supra at para. 57. As noted, the action appears essentially ready for trial. I am granting leave to the defendants to conduct further examination of Ross Gilbert on injuries and losses resulting from his second accident (as discussed below), which seems to address the defendants’ arguments about prejudice from the length of time that has passed since their examination for discovery. I am thereby satisfied that there is no non-compensable prejudice from restoring the action to the trial list.
Should the two actions be tried together?
[18] Prior to this motion being brought, plaintiffs’ counsel confirmed that the plaintiffs are not seeking any damages arising from the second motor vehicle accident that took place in early 2018. In response to the motion, the plaintiffs have proposed amending their statement of claim to state the following:
The Plaintiffs seek relief for damages arising from only the September 11, 2013 motor vehicle accident. The Plaintiffs’ claims do not include damages arising from a January 22, 2018 motor vehicle accident.
[19] Given the plaintiffs’ position that they are not pursuing any damages from Ross Gilbert’s second accident, I am satisfied that an order for trial together or one after another should not be made. I am particularly mindful of the further delay that would result from such an order when pleadings are still not yet closed in the 2020 Action.
[20] There is a dispute over the sufficiency of the proposed amendment language. Defendants’ counsel has indicated that the defendants would accept more specific wording along the lines of what was discussed by the Court of Appeal in Taylor v. Canada (Health), 2009 ONCA 487 at para. 11. The defendants want language that more clearly excludes damages that were exacerbated by the second motor vehicle accident. Plaintiffs’ counsel acknowledged in submissions that such language is agreeable.
[21] In any event, I am satisfied the plaintiffs have now made an admission that damages in the 2014 Action are limited to losses and damages incurred from the first accident only. I agree with the defendants that determining the extent of damages attributable to them from the first accident will require considering the extent of aggravation or other losses suffered in the second accident. However, I agree with the plaintiffs that apportionment of liability between concurrent tortfeasors will no longer be an issue for trial. I am thereby satisfied that the 2014 Action need not be heard together with the 2020 Action (to the extent it proceeds after an amendment is taken out).
[22] Amendment of the statement of claim in the 2014 Action should be formalized promptly and as clearly as possible. Sharon Stein and 1020683 Ontario Ltd. will then need to determine if they intend to advance the 2020 Action, or whether it should be held in abeyance pending a trial determination in the 2014 Action.
Should further production from the plaintiffs be ordered?
[23] Sharon Stein and 1020683 Ontario Ltd. seek production of 20 items identified in a list appended as Schedule “C” to their amended notice of motion. Many of these are included in the production order already made on January 29, 2021, which the plaintiffs breached by failing to make production within the ordered 90 days. The defendants also seek updated and additional records.
[24] The plaintiffs have agreed to produce 11 of the items (item nos. 1-3, 7, 9-12, 15, 17, and 19). The defendants accept the plaintiffs responding evidence on this motion that records sought for 2 of the items (item nos. 13-14) do not exist, so the defendants are not pursuing them. The balance of items are disputed and are discussed below.
[25] There is a dispute over whether the plaintiffs have satisfied some of the disputed items through documents sent via secure file transfer on November 12, 2020, although defendants’ counsel apparently did not access it prior to the link expiring. The plaintiffs rely on having re-sent the production on March 10, 2021, apparently also not accessed, as well as further production on September 24, 2021. The sworn affidavit evidence of defendants’ counsel is that production remains outstanding and that “[m]ost of the documents enclosed to the September 24, 2021 correspondence are duplicates.” The enclosures are not in evidence, so I cannot confirm what precisely was produced. I have thereby addressed these disputes on an item-by-item basis.
[26] Item no. 4: The defendants seek production of the complete records of benefits received from the Canada Pension Plan from April 2017 to date. The prior production order required the plaintiffs to provide the complete Canada Pension Plan Disability file. The plaintiffs’ position is that they have already produced these records, having served a copy of the file on March 10, 2021. The covering letter from plaintiffs’ counsel indicates that the Canada Pension Plan Disability File dated January 26, 2021 was included. Nevertheless, the defendants argue that they have received nothing beyond April 2017, which is supported by their supplementary responding affidavit and the responding letter sent to plaintiffs’ counsel dated October 6, 2021.
[27] There is no direct evidence from the plaintiffs confirming that records after April 2017 have been produced or do not exist. On the record before me, I accept that they have not been produced and that compliance with the production order remains outstanding.
[28] Item no. 5: The defendants seek production of clinical notes and records of Dr. Backstein, one of Ross Gilbert’s treating physicians. The plaintiffs submit that reasonable efforts have been made to obtain Dr. Backstein’s clinical notes and records through requests made on November 15, 2019, December 16, 2019, January 13, 2020 and October 7, 2020. The records have not yet been provided by Dr. Backstein and the plaintiffs have agreed to produce the records upon receipt. They submit that, at this point, the defendants must bring a Rule 30.10 motion if they wish to obtain production of the records from Dr. Backstein. I disagree.
[29] No requests or efforts to obtain and produce Dr. Backstein’s records appear to have been made since October 2020, meaning that all efforts predate the production order on January 29, 2021. That order required the plaintiffs to “provide all clinical notes and records of Dr. Backstein, orthopaedic surgeon” within 90 days. In my view, if the plaintiffs’ prior efforts had been sufficient, a further order would not have been necessary. Additional efforts ought to have been made following that production order. I thereby agree with the defendants that the production order has not yet been complied with, and that the plaintiffs are in breach of that order by making no subsequent efforts to obtain the notes and records.
[30] The defendants request that the plaintiffs be required to make best efforts. I am not prepared to order that. “Best efforts” has a particular meaning, namely that counsel and client will take diligent, genuine, and substantial steps to obtain and produce the requested information and/or documentation. It has been held to be an undertaking “not to be taken lightly” and that a cursory inquiry is not good enough, since “the word ‘best’ is the superlative of the adjective ‘good’ (good-better-best) and must be interpreted in that light”: Linamar Transportation Ltd. v. Johnson, 2014 ONSC 4415 (Div Ct) at para. 14.
[31] The original undertaking does not appear to have been given as a “best efforts” undertaking, nor was “best efforts” ordered by my colleague. However, that does not excuse the plaintiffs from further reasonable efforts. My colleague’s order did not include a condition that Dr. Backstein’s clinical notes and records be produced within 90 days “only if received further to prior requests.” Production was ordered. It follows that additional requests and efforts were to have been made to comply with the order, and the plaintiffs must do so now.
[32] Item no. 6: The defendants seek production of clinical notes and records of Dr. Tong, a pathologist seen by Ross Gilbert. The plaintiffs do not dispute that Mr. Gilbert saw Dr. Tong for a pathology diagnostic consultation, but argue that the records have already been produced. In particular, they submit that Dr. Tong’s pathology review is contained in the Princess Margaret Hospital file dated November 5, 2020, which was served on November 12, 2020.
[33] The defendants do not dispute receiving the pathology review, but point to the fact that the production order of January 29, 2021 required the plaintiffs to produce the clinical notes and records of Dr. Tong. The responding affidavit does not address whether there are any other records. I agree that compliance with the production order remains outstanding. The production relied upon by the plaintiff predates the production order. Similar to the clinical notes and records of Dr. Backstein, there is nothing before me supporting that plaintiffs have made any subsequent efforts to confirm with Dr. Tong if there are any clinical notes and records and, if so, to seek to obtain and produce them. Additional requests and efforts ought to have been made to comply with the production order. The plaintiffs must do so now.
[34] Items nos. 8 and 18: The defendants seek production of records from two professionals at the Hillside Medical Centre: Dr. Tatikian, who is mentioned in Ross Gilbert’s most recent OHIP summary, and Dr. Padda, who is mentioned in the initial report by the plaintiffs’ expert, Knorr & Associates, dated October 19, 2019. The plaintiffs submit that records are contained in the Hillside Medical Centre clinical notes and records dated September 20, 2019, which were served on January 13, 2020. The defendants do not dispute receiving those records, but seek updated records since there has been nothing since May 2019.
[35] The plaintiffs point out that there was no undertaking for production of these records. In my view, that is immaterial. All parties have an ongoing obligation to produce relevant documents in their possession, control, or power throughout litigation. The plaintiffs do not dispute that the records of the two doctors are relevant. Relevance appears to have been conceded by previously producing the clinical notes and records from Hillside Medical Centre of all the doctors that Ross Gilbert had seen. The plaintiffs have tendered no evidence on whether Ross Gilbert has continued to see either doctor beyond the dates of production already made. The defendants reasonably cannot know without that information from the plaintiffs.
[36] In these circumstances, the defendants’ request for updated medical records for these doctors, whose clinical notes and records to September 2019 were previously produced, is reasonable. If Ross Gilbert has continued to see them, and there are updated records, they fall within the plaintiffs’ ongoing production obligation. The plaintiffs’ apparent refusal to confirm if there have been further clinical visits and to seek updated records is contrary to that obligation.
[37] Item no. 16: The defendants seek production of records from Dr. Gilman, a neuropsychologist and one of the plaintiffs’ litigation experts. The plaintiffs submit that there are no records from Dr. Gilman beyond his neuropsychological report, which has already been produced, and in any event they were not obliged to serve that expert report until 90 days prior to the pre-trial. The defendants argue that Ross Gilbert was seen by Dr. Gilman specifically in relation to his injuries, making his records relevant and producible.
[38] In terms of discovery, Rule 31.06(3) only entitles the defendants disclosure of the findings, opinions and conclusions of any expert engaged by or on behalf of the plaintiffs, but that has been provided in the psychological evaluation reports that have been produced. No case law was put before me on production of a litigation expert’s clinical notes and records. In the absence of any such case law or argument supporting entitlement to a general order for production of an expert’s clinical notes and records, I am dismissing the requested relief for production of Dr. Gilman’s records. That dismissal is without prejudice to seeking them at a later date to the extent of the defendants’ demonstrated entitlement to them.
[39] Item no. 20: The defendants seek production of records from Dr. Goldstein, an endocrinologist who is mentioned in the initial report of the plaintiffs’ expert, Knorr & Associates, dated October 19, 2019. The plaintiffs submit that Dr. Goldstein’s records are contained in the Princess Margaret Hospital file dated November 5, 2020, which was served on November 12, 2020. Since Dr. Goldstein’s records have already been produced, their relevance is conceded. The plaintiffs have tendered no evidence on the extent to which Ross Gilbert has seen Dr. Goldstein. In fairness to the defendants, only the plaintiffs know. Production of updated records on the same terms as with those of Dr. Tatikian and Dr. Padda is appropriate.
[40] Additional item: In addition to the above, the defendants also argued for production of notes and records from the list of providers being seen by Ross Gilbert outlined at para. 25 of the responding affidavit, who were unknown before the responding motion record was served. The defendants submit that information should be produced on who they are and their respective records should also be produced. Since the providers were unknown until the responding motion record was served, the defendants argue that they could not have made a formal production request sooner.
[41] I have already commented on the plaintiffs ongoing production obligations. To the extent that there has been no information given on the providers listed in the responding affidavit and no production of their records, they ought to be provided. Rule 30.07(a) expressly requires that relevant documents coming into a party’s possession, control, or power after serving an affidavit of documents must be produced. Taking into consideration the requirement in Rule 1.04 that rules be construed liberally to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits, I am ordering production of the various providers’ records, to the extent they have not already been produced.
Should the defendants be granted leave to further examine the plaintiffs?
[42] Whether a party may be examined more than once is a discretionary decision to be considered on the specific facts of each case. Typically, exceptional circumstances must be shown before the court will allow a further examination of a plaintiff for the purpose of updating the plaintiff’s condition, such as a substantial deterioration in the plaintiff’s condition: Green v. Viens, 2018 ONSC 498 (Master) at paras. 23 and 37.
[43] The plaintiffs argue that Ross Gilbert’s accident-related injuries persist, but remain the same. They submit that there is no evidence of substantial deterioration in his condition. I agree, but substantial deterioration is an example of an exceptional circumstance. It is not the only one.
[44] Here, Mr. Gilbert was involved in a second accident several years after the examination for discovery took place. Although no damages from that accident are being claimed, the subsequent accident will still be relevant in assessing the extent of damages suffered from the first accident. The court will almost certainly have to consider the impact (if any) of the second accident on Mr. Gilbert’s condition. Evidence on Mr. Gilbert’s second accident injuries may well bear on proper disposition of Mr. Gilbert’s claims for future care costs and future income loss. Notably, the future care costs report relied on by the plaintiffs post-dates the second accident.
[45] Relevance of Mr. Gilbert’s subsequent injuries in assessing damages is, in my view, an exceptional circumstance warranting further examination. Nevertheless, I agree with the plaintiffs that the defendants should not be entitled to conduct a full examination on Mr. Gilbert’s current condition to update their evidence before trial. That is precisely the type of examination that courts have been averse to permitting: Green, supra at para. 37. What the defendants ought to be entitled to examine on, though, is the nature and extent of injuries suffered during the second accident and changes in Mr. Gilbert’s condition following that accident. I agree with the defendants that they are entitled to examine Mr. Gilbert himself on those matters and need not rely solely on experts. Such an examination is not truly a “second kick at the can”. The second accident and any actual or potentially resultant changes in Mr. Gilbert’s condition are obviously matters on which the plaintiffs could not have been examined at the time of their first discovery.
Should police records produced in the 2014 Action be used in the 2020 Action?
[46] The defendants also seek an order permitting all records produced by the Peel Regional Police and the Ontario Provincial Police in the 2014 Action to be disclosed and provided to all parties in the 2020 Action, subject to the conditions and limitations set by the court orders granting production. That relief is unopposed by the Peel Regional Police and the Ontario Provincial Police and the parties to the 2020 Action. The plaintiffs appear to take no position.
[47] Although I have not granted trial together or one after another, I accept that the Rule 30.10 productions made by the Peel Regional Police and the Ontario Provincial Police would be relevant in the 2020 Action if it is proceeding. I am accordingly granting the requested order.
Costs
[48] At the end of the hearing, I heard costs submissions since there had been no offers to settle. Both the plaintiffs and the defendants each seek their costs in any event of the motion.
[49] The defendants have been substantially successful. They seek partial indemnity costs. They submit that the motion was necessitated by the plaintiffs’ refusal to consent to setting aside the order that restored the action to the trial list, their failure to comply with the prior production order, and their failure to provide relevant updated records in compliance with disclosure obligations. Given the complexity of this negligence action, the discovery sought is very important to the defendants for trial.
[50] The plaintiffs submit that, even if unsuccessful, they are entitled to their partial indemnity costs, since they were compelled to oppose the motion. In particular, they were not agreeable to further procedural delay from trial together with the 2020 Action, felt that leave for additional examination should not be granted, and that given the history of plaintiffs’ consent to production motions the production relief was unnecessary. I disagree. They only consented to some relief once the motion was brought and were substantially unsuccessful in those aspects opposed. The defendants are entitled to their costs.
[51] I acknowledge that the plaintiffs were partially successful, but only in respect of the trial together relief and a few of the production items. I have not otherwise accepted their positions. I also think it was improper to insist on maintaining the order restoring the action to the trial list given the circumstances under which it was obtained, and this motion was required to address that procedural issue. With respect to trial together relief, it was only defeated by the position taken in response to this motion that the statement of claim would be formally amended to restrict damages to the first accident. Although there is evidence that plaintiffs’ counsel confirmed in June 2021 that no damages from the second accident were being sought, no steps were taken to formalize that position until this motion was brought.
[52] I have considered if I should account for the defendants being unsuccessful in opposing the relief sought to restore the action to the trial list. However, I am mindful that there was no formal motion before me for that relief. Permitting that relief to be argued as a de novo hearing was an indulgence by defendants’ counsel grounded in practicality that is too often lacking in civil litigation. The plaintiffs have avoided the time and expense of a further motion. In my view, in all the circumstances, it would be unfair to the defendants to reduce a costs award in their favour or make an adverse costs award on account of the additional restoration relief.
[53] The plaintiffs’ claim for partial indemnity costs of the motion are significantly higher than that of the defendants. I thereby cannot be said that the defendants’ claim is beyond the plaintiffs’ reasonable expectations.
[54] I accordingly fix partial indemnity costs of the motion in the amount of $5,500 plus HST, plus disbursements of $1,486.63, for a total of $7,701.63, payable by the plaintiffs to the defendants within 30 days.
Disposition
[55] I accordingly order as follows:
(a) On consent, the order of Master Abrams (as she was then titled) dated May 5, 2021, which restored the 2014 Action to the trial list, is hereby set aside.
(b) The 2014 Action is hereby restored to the trial list.
(c) On consent, the plaintiffs shall produce the records identified at item nos. 1, 2, 3, 7, 9, 10, 11, 12, 15, 17, and 19 in Schedule “C” to the amended notice of motion of the moving defendants. Such production shall be made within thirty (30) days.
(d) The plaintiffs shall, within thirty (30) days, comply with the production order of Master Josefo (as he was then titled) dated January 29, 2021 by:
(i) making reasonable efforts to obtain and produce the complete Canada Pension Plan Disability file, including records of benefits received from the Canada Pension Plan from April 2017 to date;
(ii) making further efforts to obtain and produce the clinical notes and records of Dr. Backstein; and
(iii) making further efforts to obtain and produce the clinical notes and records of Dr. Tong.
(e) The plaintiffs shall, within thirty (30) days, make reasonable efforts to obtain and produce updated clinical notes and records from each of Dr. Tatikian, Dr. Padda, and Dr. Goldstein for the period of May 2019 to date, if Ross Gilbert has seen them in that period.
(f) To the extent not already produced, the plaintiff shall, within sixty (60) days, make reasonable efforts to obtain and produce any clinical notes and records in respect of Ross Gilbert from each of the seven providers identified in para. 25 of the responding affidavit of Kaitlyn MacDonell sworn October 29, 2021.
(g) Sharon Stein and 1020683 Ontario Ltd. are hereby granted leave to further examine the plaintiff, Ross Gilbert, with respect to injuries arising from the second accident in which Mr. Gilbert was involved on or about January 22, 2018, changes in his condition subsequent to that accident, and damages arising from it. Such further examination shall be completed within sixty (60) days, unless the parties agree to a later date.
(h) All records produced by the Peel Regional Police in the 2014 Action pursuant to the order of Master Graham (as he was then titled) dated January 25, 2017 may be disclosed and provided to all parties in the 2020 Action, subject to the same conditions and limitations set by the said order.
(i) All records produced by the Peel Regional Police in the 2014 Action pursuant to the order of Master Josefo (as he was then titled) dated January 29, 2021 may be disclosed and provided to all parties in the 2020 Action, subject to the same conditions and limitations set by the said order.
(j) Relief seeking production of records from the plaintiffs’ expert, Dr. Gilman, is dismissed without prejudice to a subsequent motion for production.
(k) The balance of the defendants’ motion is dismissed.
(l) The plaintiffs shall pay to the moving defendants their costs of this motion fixed in the amount of $7,701.63, inclusive of HST and disbursements, payable within thirty (30) days.
(m) This order is effective without further formality.
ASSOCIATE JUSTICE TODD ROBINSON DATE: April 1, 2022