Court File and Parties

2022 ONSC 2342

Court File No.: CV-15-00542057 Motion Heard: 2022-03-24

Superior Court of Justice - Ontario

Re: Shoppers Drug Mart Corporation, Shoppers Drug Mart Inc. c.o.b.as Shoppers Drug Mart, Plaintiffs And: Aviva Insurance Company of Canada, Defendant

Before: Associate Justice B. McAfee

Counsel: C. Breukelman, Counsel, for the Moving Party, the Defendant S. Libin, Counsel, for the Responding Parties, the Plaintiffs

Heard: March 24, 2022

Reasons for Decision

[1] The defendant Aviva Insurance Company of Canada (Aviva) moves for an order for answers to undertakings and refusals given on the examination for discovery of a representative of the plaintiff Shoppers Drug Mart Inc. held on June 22, 2020, an order granting leave to amend the statement of defence, an order vacating the appointment of a roster mediator, and other relief.

[2] The parties agree to an order that undertaking nos. 1 to 4 be answered within 90 days. The parties also agree to an order extending the deadline to set the action for trial to December 31, 2022. The relief concerning leave to amend the statement of defence, vacating of the appointment of a roster mediator and a deadline for mediation is also agreed to. The contested issues remaining are answers to undertaking no. 5 and refusal nos. 1 to 6 and costs.

[3] This action involves a claim by the plaintiffs Shoppers Drug Mart Corporation and Shoppers Drug Mart Inc. (collectively Shoppers) against Aviva pursuant to a policy of insurance. On or about December 10, 2013, a tractor trailer being used to transport a shipment of narcotics, pharmaceuticals, pharmaceutical prescriptions, and other merchandise owned by Shoppers (the cargo) was involved in a single vehicle accident and overturned on Highway No. 1 in British Columbia. It is Shoppers’ position that the alleged loss of the cargo is covered under the policy of insurance. The statement of claim was issued on December 4, 2015. Damages in the amount of $900,000.00 are sought.

[4] Aviva denies that the cargo was damaged and denies that the loss is covered under the policy of insurance.

[5] Undertaking no. 5 is found at question 323 of the transcript:

Q. Okay. Can I ask this way, then, because, you know, there are productions in here that clearly answers how this was arranged. Can you make inquiries and determine what information is available to Shoppers Drug Mart to determine how --- what the sequence of events was from the rollover back to bringing the stock back to the warehouse in Calgary and provide any record that Shoppers has access to show that sequence of events? A. We’ll make those inquiries.

[6] The answer provided in the chart to undertaking no. 5 is “all information and documents relevant to this inquiry have been produced.”

[7] Undertaking no. 5 has not been answered. The answer is not responsive to the undertaking. The answer does not provide the specific information that was undertaken to be provided. Undertaking no. 5 remains outstanding and shall be answered.

[8] With respect to refusals, the applicable rules are as follows:

Rule 31.06 of the Rules of Civil Procedure provides:

31.06(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

Rule 1.04 provides in part:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

Rule 29.2.03(1) provides:

29.2.03(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

[9] In Ontario v. Rothmans Inc., 2011 ONSC 2504 (Ont. S.C.J.) Justice Perell summarizes the principles concerning the scope of questioning on examinations for discovery at para. 129:

• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings: Playfair v. Cormack (1913), 4 O.W.N. 817 (H.C.J.).
• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted. See Cominco Ltd. v. Westinghouse Can. Ltd. (1979), 11 B.C.L.R. 142 (C.A.); Allarco Broadcasting Ltd. v. Duke (1981), 26 C.P.C. 13 (B.C.S.C.).
• Under the former case law, where the rules provided for questions “relating to any matter in issue,” the scope of discovery was defined with wide latitude and a question would be proper if there is a semblance of relevancy: Kay v. Posluns (1989), 71 O.R. (2d) 238 (H.C.J.); Air Canada v. McConnell Douglas Corp. (1995), 22 O.R. (3d) 140 (Master), aff’d 23 O.R. (3d) 156 (Gen. Div.). The recently amended rule changes “relating to any matter in issue” to “relevant to any matter in issue,” which suggests a modest narrowing of the scope of examinations for discovery.
• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds: Graydon v. Graydon (1921), 67 D.L.R. 116 (Ont. S.C.) at pp. 118 and 119 per Justice Middleton (“Discovery is intended to be an engine to be prudently used for the extraction of truth, but it must not be made an instrument of torture …”); Kay v. Posluns (1989), 71 O.R. (2d) 238 (H.C.J.) at p. 246; Ontario (Attorney General) v. Ballard Estate (1995), 26 O.R. (3d) 39 (C.A.) at p. 48 (“The discovery process must also be kept within reasonable bounds.”); 671122 Ontario Ltd. v. Canadian Tire Corp., [1996] O.J. No. 2539 (Gen. Div.) at paras. 8-9; Caputo v. Imperial Tobacco Ltd., [2003] O.J. No. 2269 (S.C.J.). The court has the power to restrict an examination for discovery that is onerous or abusive: Andersen v. St. Jude Medical Inc., [2007] O.J. No. 5383 (Master).
• The witness on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue: Van Horn v. Verrall (1911), 3 O.W.N. 439 (H.C.J.); Rubinoff v. Newton, [1967] 1 O.R. 402 (H.C.J.); Kay v. Posluns (1989), 71 O.R. (2d) 238 (H.C.J.).
• The witness on an examination for discovery may be questioned about the party’s position on questions of law: Six Nations of the Grand River Indian Band v. Canada (Attorney General) (2000), 48 O.R. (3d) 377 (S.C.J.)

[10] Justice Faieta also summarizes the applicable test in Eisen v. Altus Group Limited, 2016 ONSC 1301 (Ont. S.C.J.) at paras. 13-18 and concludes as follows at para. 18:

[18] Accordingly, a person may refuse to answer a question on an Examination for Discovery if: (1) the question is not relevant to any matter in issue in the action; (2) the question is not proper; (3) the question does not satisfy the proportionality requirement imposed by Rule 29.2.03. (Redman v. Hospital for Sick Children, [2010] O.J. No. 2803, 2010 ONSC 3769, para.11).

[11] Refusal nos. 1 to 5 were argued together as one group. Refusal no. 1 seeks production of drug identification numbers (DINs) for all items on the inventory list. Refusal no. 2 seeks production of the negative and positive label conditions (storage conditions) for all drugs in the inventory. Refusal no. 3 seeks production of the negative and positive label conditions for a subset of 20 drugs from the inventory. Refusal no. 4 seeks production, if not already contained in a prior request, of manufacturer’s information for required storage conditions for each product in the shipment. Refusal no. 5 seeks production, if not already contained in a prior request, of manufacturer’s information for required storage conditions for a subset of 20 products in the shipment. Refusal nos. 1 -5 are objected to on the ground of relevance. Refusal nos. 1, 2 and 4 are also objected to on the additional ground of proportionality.

[12] The questions in this group concern the identification of the pharmaceuticals in the cargo and information regarding storage. The main issue concerning damage to the cargo relates to the temperature storage conditions.

[13] At paragraph 13(b) of the statement of claim the plaintiffs plead that the temperature of the product was below the labelled storage conditions for 2 days, 14 hours and 45 minutes, exceeding Health Canada approved storage conditions. At paragraph 8(e) of the statement of defence, reference is made to a letter provided by Shoppers from Therapeutic Products Inc. (TPI). At paragraph 8(e)(ii) of the statement of defence it is pleaded that TPI recommended to Shoppers that the cargo be destroyed in part because the temperature was below the labelled storage conditions for a period of time. At paragraph 12 of the statement of defence Aviva denies that the cargo was damaged. I also note that at paragraph 8(g) of the proposed amended statement of defence, for which leave is granted on this motion, Aviva denies that the cargo was damaged and denies that the cargo was exposed to temperatures outside the range deemed acceptable.

[14] Shoppers argues that the questions in this group are not relevant because, as pleaded at paragraph 8 of the statement of claim, according to the policy Shoppers “…exercising a reasonable discretion shall be the sole judge as to whether the property involved in any loss under this policy are fit for sale.” Damage to the cargo is put in issue by the pleadings. On this motion, I would not be determining whether Shoppers exercised a reasonable discretion.

[15] Shoppers also argues that the request is not proportionate because it involves information relating to over 1600 individual products. TPI appears to have had information to make a determination that the temperature was below labelled storage conditions. At questions 191-193 from the examination for discovery of a representative of Shoppers, there is an indication that the information could be “pulled”.

[16] In Midland Resources Holding Ltd. v. Shtaif, 2010 ONSC 3772, [2010] O.J. No. 2767 (Ont. S.C.J.) at para. 15, Associate Justice Muir states in part:

…In my view a party who seeks to limit the production of relevant documents on the basis of proportionality must put forward at least some evidence addressing the Rule 29.2.03 factors. …

[17] Other than the number of products at issue, there is no evidence before me of what would be involved in providing the information requested.

[18] During responding submissions, Shoppers also sought to argue that the information requested in this group of questions is publicly available. This position is not specifically set out in the responding material. Aviva was not provided with any advance notice of the position or provided with any indication of where the information might be obtained. During argument, counsel for Shoppers sought to take the court and counsel to a website where the information may be available. In my view it would not have been appropriate to do so during the hearing in circumstances where no notice of this position and no evidence in support of this position was before the court. During a recess, counsel for Aviva did go to the website and indicated that it was not clear to him that the information could be obtained publicly particularly without the DINs.

[19] On the basis of the evidence before me, the questions in this group do not offend the requirement of proportionality.

[20] The questions in this group shall be answered.

[21] Refusal no. 6 seeks production of records on which Shoppers relied to “come up” with the claim amount in their letter to Logistics Alliance. I am not satisfied of the relevance of this question. While it is possible that a particular document maybe relevant to both claims, a request for all records to support a separate claim amount against a non-party is too broad. I am not satisfied that all records used by Shoppers to quantify its claim amount against a non-party entity are relevant to the calculation of the contractual claim advanced against Aviva. The question need not be answered.

[22] With respect to costs of the motion, Aviva was substantially successfully on the impugned undertaking and refusals. Other issues were resolved only after the motion was brought. I am satisfied that Aviva is entitled to costs of the motion in the all-inclusive amount of $3,000.00, which is a fair and reasonable amount that Shoppers could expect to pay in all of the circumstances of this motion. Costs in the all-inclusive amount of $3,000.00 are payable by Shoppers to Aviva within 30 days.

[23] Order to go as follows:

1. On consent, undertaking nos. 1 to 4 from the examination for discovery of a representative of Shoppers Drug Mart Inc. held on June 22, 2020, as set out at schedule “A” to the notice of motion, shall be answered within 90 days.
2. On consent, leave is granted to amend the statement of defence in the form attached as schedule “B” to the notice of motion.
3. On consent, the notice of assignment of Alan Alexandroff as mediator is vacated.
4. On consent, the parties shall schedule a mediation to take place no later than 7 months after the date of this order.
5. On consent, the deadline to set the action down for trial is extended to December 31, 2022.
6. Undertaking no. 1 and refusal nos. 1 to 5 from the examination for discovery of a representative of Shoppers Drug Mart Inc. held on June 22, 2020, as set out in schedule “A” to the notice of motion, shall be answered within 90 days.
7. Refusal no. 6 from the examination for discovery of a representative of Shoppers Drug Mart Inc. held on June 22, 2020, as set out in schedule “A” to the notice of motion, need not be answered.
8. Costs of the motion are fixed in the all-inclusive sum of $3,000.00 payable by the plaintiffs to Aviva within 30 days.

Associate Justice B. McAfee Date: April 19, 2022