COURT FILE NO.: CV-16-00561774
MOTION HEARD: 20220817
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Miguel Ramsamugh, Plaintiff
AND:
Osman Abdirahman Osman, Farhia M. Awad, Darnley Ferdinand, Toronto Transit Commission and Royal & Sun Alliance Insurance Company of Canada, Defendants
AND:
TD Home and Auto Insurance Company, Statutory Third Party
BEFORE: Associate Justice B. McAfee
COUNSEL: R. Levitsky, Counsel, for the Plaintiff
A.Vaiay, Counsel, for the Defendants Darnley Ferdinand and Toronto Transit Commission
HEARD: August 17, 2022
REASONS FOR DECISION
[1] This is a motion brought by the plaintiff Miguel Ramsamugh (Ramsamugh) for an order compelling the defendant Darnley Ferdinand (Ferdinand) and the defendant the Toronto Transit Commission (the TTC) to answer questions refused on their respective examinations for discovery. Ramsamugh also seeks an order that Ferdinand and the TTC re-attend on examinations for discovery to answer questions arising from the answers to undertakings and questions improperly refused.
[2] Ferdinand and the TTC oppose the motion. No other parties were in attendance or communicated any position on the motion.
[3] This action arises as a result of a motor vehicle accident that occurred on November 9, 2014, between a motor vehicle being operated by the defendant Osman Abdirahman Osman (Osman) and owned by the defendant Farhia A. Awad (Awad) (the Awad vehicle) and a TTC bus being operated by Ferdinand. Ramsamugh was a passenger in the Awad vehicle. The accident occurred at or near the intersection of Kipling Avenue and Westhumber Boulevard, Etobicoke. The Awad vehicle was travelling north on Kipling Avenue. The TTC bus was travelling east on Westhumber Boulevard. It is alleged that the Awad vehicle was travelling at a high speed and through a red light. It is alleged that just prior to the collision, the TTC bus had been stopped for a red light. When the light turned green for the direction of travel of the TTC bus, the TTC bus accelerated into the intersection of Westhumber Boulevard and Kipling Avenue at which point the accident occurred. Ramsamugh has been deemed catastrophically impaired by his accident benefits insurer. Another passenger in the Awad vehicle died at the scene.
[4] The statement of claim was issued on October 5, 2016. The statement of defence of Ferdinand and the TTC is dated October 21, 2016. No other pleadings were before me or relied on for the purpose of this motion.
[5] The applicable Rules of Civil Procedure are as follows:
Rule 31.06:
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(1):
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):
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.
Rule 34.15
34.15(1) Where a person fails to attend at the time and place fixed for an examination in the notice of examination or summons to witness or at the time and place agreed on by the parties, or refuses to take an oath or make and affirmation, to answer any proper question, to produce a document or thing that he or she is required to produce or to comply with an order under rule 34.14, the court may,
(a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at his or her own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer.
[6] 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 paragraph 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), 1913 CanLII 599 (ON SC), 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), 1979 CanLII 489 (BC CA), 11 B.C.L.R. 142 (C.A.); Allarco Broadcasting Ltd. v. Duke (1981), 1981 CanLII 723 (BC SC), 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), 1989 CanLII 4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.); Air Canada v. McConnell Douglas Corp. (1995), 1995 CanLII 7147 (ON SC), 22 O.R. (3d) 140 (Master), aff’d (1995), 1995 CanLII 7189 (ON SC), 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), 1921 CanLII 444 (ON SC), 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), 1989 CanLII 4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.) at p. 246; Ontario (Attorney General) v. Ballard Estate (1995), 1995 CanLII 3509 (ON CA), 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, 1966 CanLII 198 (ON SC), [1967] 1 O.R. 402 (H.C.J.); Kay v. Posluns (1989), 1989 CanLII 4297 (ON SC), 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), 2000 CanLII 26988 (ON SCDC), 48 O.R. (3d) 377 (S.C.J.)
[7] While certain questions may be permitted at the discovery stage, matters of admissibility and weight are left to the trial Judge (Marupov v. Metron Construction Inc., 2014 ONSC 3535 (Ont. S.C.J) at para. 23).
[8] I will now turn to the impugned refusals. The refusal numbers are taken from the Form 37C charts.
Ferdinand’s Refusals
Refusal No. 1
[9] The original question refused seeks production of Ferdinand’s employment file with the TTC.
[10] Certain contents of the employment file have now been agreed to be produced and/or have been produced. It is agreed that all occurrence reports, supervisory occurrence reports and assessment and summary disposition reports for incidents in Ferdinand’s employment file that Ferdinand has been involved in with respect to motor vehicle accidents or personal injuries suffered due to his use of a motor vehicle will be produced.
[11] Ramsamugh now limits the request to any further records relating to Ferdinand’s interview and hiring process in 1996. The parties agreed, that while this is not the original question asked, I may consider this refusal on the basis of this more narrowed request.
[12] In my view the records relating to Ferdinand’s interview and hiring process in 1996 are relevant based on the pleadings. There is evidence before me that at the time Ferdinand was hired by the TTC as a driver, his driving record included six convictions (one seatbelt, four speeding, one disobey red light) and one suspension. The accident occurred while Ferdinand was on duty driving a TTC bus. It is alleged that Ferdinand was negligent and caused or contributed to the accident (statement of claim, para. 10(c)). It is also alleged that the TTC breached its duty to other users of the road to ensure that the bus was operated safely by a responsible, properly trained licensed driver (statement of claim, para. 10(d)(i)) and permitted the defendant bus to be operated by Ferdinand who lacked the ability, skill training and experience to do so safely (statement of claim, para. 10(d)(vii) and permitted the bus to be operated by Ferdinand when it knew or ought to have known that he was incapable of operating it safely (statement of claim, para. 10(d)(ix)).
[13] The question, as narrowed, is relevant to the above pleadings and shall be answered.
Refusal No. 4
[14] Ramsamugh seeks an order that Ferdinand answer questions relating to the convictions noted on Ferdinand’s licencing history. Ferdinand and the TTC submit that that all material in the possession of the TTC relating to convictions or incidents on the job were produced on May 19, 2022, in response to refusal no. 1.
[15] I am not prepared to make a general order that all questions relating to the convictions must be answered. Not every question concerning convictions may be relevant to the matters in issue in this action. Without the specific questions at issue, I am unable to determine their propriety.
[16] On the re-attendance, more of which is said below, Ferdinand may be asked relevant and proper questions arising from the answers to undertakings, refusals agreed to be answered and refusals ordered answered on the issue of his convictions. The rulings given on specific questions on this issue should also provide some guidance. If there are further refusals on the re-attendance, a further motion may be required.
TTC’s Refusals
Refusal Nos. 19-23
[17] These refusals were argued together. The refusals concern disclosure of Ferdinand’s driving history at the time he was hired by the TTC.
[18] I am satisfied that the questions in this category are relevant based on the pleadings and in particular based on the above-noted pleadings at paragraphs 10(d)(i), (vii) and (ix) of the statement of claim.
[19] The questions in this category shall be answered.
Refusal Nos. 27, 28, 35, 36, 48:
[20] These refusals were argued together. The refusals concern any ongoing obligation of the TTC to ensure that drivers report any driving charges or convictions.
[21] In oral submissions, it was agreed that refusal no. 36 would be answered. On consent, refusal no. 36 shall be answered.
[22] I am satisfied that the balance of the questions in this category are relevant based on the pleadings and in particular based on the allegations against the TTC at paragraphs 10(d)(i), (vii) and (ix) of the statement of claim as set out above. In addition, the questions are relevant to the allegations that the TTC failed to properly and adequately … supervise its agents, servants and employees including Ferdinand, with respect to the safe operation … of the defendant bus (statement of claim, para. 10(d)(iii)) and failed to have or implement systems or procedures to monitor the performance of its agents, servants and employees, including Ferdinand or, in the alternative, it failed to follow and/or enforce its systems or procedures (statement of claim, para. 10(d)(iv)).
[23] The balance of the questions in this category shall also be answered.
Refusal Nos. 43, 45, 47:
[24] These refusals were argued together. The questions ask whether the TTC “cares” about certain matters involving their drivers. The use of the word “cares” is too vague.
[25] The questions as asked in this category need not be answered.
[26] In ordering certain refusals to be answered, based on the record before me, the principle of proportionality is not offended.
Re-Attendance
[27] With respect to the re-attendance, Ramsamugh seeks an order compelling Ferdinand and the TTC to re-attend to answer questions arising from the answers to undertakings and questions improperly refused. A total of approximately 68 undertakings and approximately 59 refusals were given at their examinations for discovery. The undertakings have now been answered. The majority of refusals were answered in advance of the return of the motion with additional refusals having been ordered answered.
[28] Although there is no automatic right to require re-attendance, having regard to the nature and extent of the questions that were answered following examinations for discovery or ordered to be answered, I am satisfied that a re-attendance to answer proper questions arising from the answers to undertakings and questions improperly refused will serve a useful purpose.
[29] In oral submissions, Ramsamugh also argued that Ferdinand and the TTC should also be required to re-attend to repeat on the record the answers to undertakings and questions originally refused that they have now provided in writing. This is not relief specifically sought in the notice of motion and no authority was before me in support of this request. I decline to order that Ferdinand and the TTC also be required to repeat these answers on the record when they re-attend.
[30] Ferdinand and the TTC shall re-attend on examinations for discovery to answer proper questions arising from the answers to undertakings and refusals agreed to be answered and ordered to be answered.
Costs
[31] Ramsamugh, Ferdinand and the TTC agree that if Ramsamugh is entirely successful on the contested issues argued, Ramsamugh is entitled to partial indemnity costs in the all-inclusive amount of $5,859.62. They also agree that, at a minimum, if Ramsamugh has no success on the contested issues, Ramsamugh is entitled to 50% of these costs. This agreement is based on the timing of providing answers to numerous undertakings and certain questions refused. If there is partial success on the contested issues, the parties agree that I should exercise my discretion in determining a fair and reasonable amount at or above 50% of these costs.
[32] Ramsamugh was not entirely successful on the contested relief argued, but was successful on the majority of contested relief argued. Having regard to all of the circumstances of this motion, in my view a fair and reasonable amount that Ferdinand and the TTC could expect to pay for costs is the all-inclusive amount of $4,500.00, payable to Ramsamugh within 30 days.
Associate Justice B. McAfee
Date: October 11, 2022