COURT FILE NO.: 96340/16

DATE: 20220721

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ZACKERY ATTREE

AND:

Plaintiff/Responding Party

INGRID M. WAYE

Bruce Chambers for the Defendant/Moving Party Nick Todorovic for the Plaintiff/Responding Party Heard: July 21, 2022

Justice S. J. Woodley

Defendant/Moving Party

REASONS FOR DECISION

OVERVIEW

[1] This action involved a motor vehicle accident (MVA) which occurred on September 10, 2015, wherein the Plaintiff alleges he was injured and seeks damages for same.

[2] Prior to the MVA, the Plaintiff was involved in a slip and fall accident alleged to have occurred due to overserving of alcohol on July 12, 2012. The Plaintiff commenced a commercial host action (CHA) relating to the fall and the MVA action was made a companion action to the CHA. The CHA settled in May of 2021.

[3] The Defendant brings this motion seeking certain amendments to their Statement of Defence. More particularly, the Defendant seeks:

i. to amend her statement of defence such that it accords with the decision in Girao v. Cunningham, 2020 ONCA 260; and

ii. to require the Plaintiff to provide particulars of the settlement in the companion action as an exception to settlement privilege.

[4] The Plaintiff does not oppose the relief seeking certain amendments to their Statement of Defence to comply with the Girao decision. However, the Plaintiff opposes the relief sought to require the settlement details of the commercial host action disclosed and accounted for in this action including seeking to include an amendment to the Statement of Claim at paragraph 14 in this regard.

FACTS

The MVA

[5] On September 10, 2015, the Plaintiff was proceeding through the intersection of Kingston Road and Walnut Lane in Pickering. At the same time the Defendant allegedly turned left in front of the Plaintiff, and the parties collided.

[6] The Plaintiff alleges that he sustained a fracture to his right hip and psychological and emotional impairment from the collision.

[7] On August 27, 2018, the Plaintiff was deemed catastrophically impaired by his AB insurer allegedly as a direct result of the motor vehicle collision based on having one marked impairment due to a mental or behavioural disorder.

The Commercial Host Accident

[8] On July 21, 2012, the Plaintiff was allegedly overserved alcohol at a wedding and fell injuring himself.

[9] The Plaintiff commenced an action in July 2014 wherein he alleges, inter alia, that he sustained a fracture to his right hip that required surgery as a result of the fall.

[10] The CHA resolved in May 2021.

Status of Proceedings

[11] The Plaintiff issued a Statement of Claim on July 5, 2016.

[12] The Defendant delivered a Statement of Defence and a Jury Notice on September 12, 2016.

[13] Examinations for Discovery occurred on June 29, 2017.

[14] The trial record was filed on June 18, 2018.

[15] On October 30, 3019, Justice McKelvey ordered that the CHA and the MVA be tried together, or one immediately after the other, or as the trial judge may otherwise direct.

[16] A mediation occurred on April 27, 2020.

[17] A judicial pre-trial conference occurred on May 10, 2021.

[18] A trial is scheduled to begin in the Fall 2022 trial sittings.

[19] The Defendant has been provided with all pleadings and documents related to damages arising from the CHA, including medical records, OHIP summaries, and school records.

ISSUES

[20] Is the Plaintiff required to disclose the particulars of the settlement in the CHA to the Defendant in the MVA action?

[21] Is the proposed amendment to paragraph 14 of the Defendant’s proposed Amended Statement of Defence requiring the Plaintiff to account for the manner in which he used the settlement funds paid by the Defendant in the CHA (in this action) proper and tenable at law?

THE LAW AND ANALYSIS

[22] It is well settled law that settlement particulars of previous actions in subsequent actions are protected by settlement privilege and not relevant in assessing damages in subsequent actions.

[23] The Defendant is only liable for the injuries that they caused. Any previous injuries will be assessed based on the medical records and evidence and not by an assessment of the quantum of damages received in previous actions. The double recovery principle applies only to joint tortfeasors and not successive tortfeasors.

[24] In cases of a plaintiff with multiple claims, he is entitled to approach each claim without the risk that the subject matter of the negotiation could be disclosed causing potentially prejudice at trial. (See Pangburn v. Leeder-Kroyer, [2003] OJ No 5025 at paras 7 and 10.

[25] In Millicevic v. Jakubec, 2005 ABQB 654, the Defendant sought disclosure of a 1998 accident settlement and the breakdown of damages in an action arising from a 2001 accident. Justice Binder dismissed the motion stating that the double recovery theory is not relevant – what was relevant was the medical condition of the Plaintiff at the moment of the subsequent accident found in the medical records.

[26] In Chappel v. Dysko, 2008 O.J. No. 13, A.C.W.S. (3d) 41, the Plaintiff was involved in an accident in 2004 and claimed damages. The Defendant sought production of settlement particulars from a MVA that occurred in 2000 to determine the extent of the injuries and whether there was an overlap in damages. The Court reviewed the decisions noted above and dismissed the Defendant’s motion noting at paragraph 20:

Specifically, I conclude that privilege applicable to settlement applies and that the position advanced of concern about double recovery is addressed and dealt with on the evidence of health and economic matters to be introduced at trial.

[27] Similar to the present case is Anderson v. Cara Operations Limited (Montana’s Cookhouse), 2009, 181 A.C.W.S. (3d) 885, where the Defendants in a slip and fall incident that occurred in June 2005 were seeking an Order requiring settlement particulars from a MVA in 2001. The Defendants argued that they required the settlement information to prevent double recovery for damages. The Court concluded that what the Plaintiff received in a different action cannot possible be relevant to the damages which might be assessed against the Defendants in the current action as the Defendants will only be responsible for the damages they caused.

[28] In the present case, similar heads of damages are pled in both actions. The Defendants were provided with full disclosure of the alleged impairments and examined the Plaintiff about his pre-existing health history and current injuries and impairments arising out of the MVA. The Defendants have all they need to properly assess damages arising from the MVA and to determine the damages for which they are alleged to be responsible.

[29] Further, as noted by the Plaintiff, the Defendant does not plead that any disability existing in this action was the result of the commercial host action. The settlement details are not relevant and are protected by privilege.

[30] As for the request to amend paragraph 14 of the Statement of Defence, despite the mandatory nature of Rule 26, a motion judge may refuse any amendments that are not tenable in law. (See: Girao, supra, at para 133).

[31] The Defendant’s proposed amendment to paragraph 14 of the Statement of Defence reads as follows:

The Defendant further states that the Plaintiff must account for the manner in which he utilizes the settlement funded paid by Metro Cuisine Ltd., operating as Prague Restaurant with respect to mitigating his damages including undertaking recommended medical, therapeutic or other modalities of treatment and/or retraining.

[32] In my view, this information is unnecessary to determine whether the Plaintiff participated in medical, therapeutic, or other modalities of treatment and/or retraining. The medical, employment, and OHIP records will document such treatment/re-training and otherwise questions concerning mitigation of damages may be asked directly of the Plaintiff. What can’t be asked, however, is to provide the particulars of the settlement of the action against Metro Cuisine.

[33] The information sought is privileged and the requested amendment is improper and appears to be an attempt to obtain privileged information that is otherwise not discoverable.

DETERMINATION AND ORDER

[34] For the foregoing reasons, an Order shall issue as follows:

a) dismissing the relief contained in paragraph 2 of the Defendant’s Notice of Motion for an Order disclosing the particulars of the settlement with Metro Cuisine Limited, while reserving the right to the Defendant to seek a contrary ruling at trial;

b) striking paragraph 14 of the proposed Amended Statement of Defence;

c) granting leave to allow all remaining amendments to the proposed Statement of Defence, while reserving the right to the Plaintiff to seek a contrary ruling at trial; and

d) as the results of the motion are mixed, costs shall be in the cause.

Justice Susan J. Woodley