Romain v. Reid, 2022 ONSC 6635

COURT FILE NO.: 14-62800

DATE: November 25, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

APril ROMAIN, and CODY ROMAIN, HAILEY MCGOVERN and TIFFANY MCGOVERN, BY THEIR LITIGATION GUARDIAN april ROMAIN,

Plaintiffs/Responding parties

JOSEPH MCGOVERN

Plaintiff

– and –

ALLEN REID AND D-SQUARED CONSTRUCTION LTD.

Defendants/Moving parties

Sherif Rizk for April Romain, Cody Romain, Hailey McGovern and Tiffany McGovern

Yoni Aroosi for Joseph McGovern

Douglas Treilhard for the defendants

HEARD: November 16, 2022

ENDORSEMENT ON MOTION TO STRIKE

S. Gomery J.:

[1] The defendants ask the court to strike the statements of claim of April Romain and Tiffany McGovern under rules 3.04(4)(b), 34.15(1)(b), and 60.12 of the Rules of Civil Procedure, RRO 1990, Reg 194. Tiffany failed to attend an examination for discovery in October 2022. Although she attended for her examination, Ms. Romain refused to answer some questions.[^1] The defendants contend that these latest events confirm that Tiffany and Ms. Romain are unwilling to comply with court orders and their discovery obligations as litigants such that their claims ought not to be permitted to proceed.

[2] The context of this motion is the plaintiffs’ claim for Family Law Act damages arising from the death of Martin McGovern. Martin McGovern was killed in July 2013 when his motorcycle collided with a dump truck driven by the defendant Allen Reid and owned by the defendant D-Squared Construction Ltd. The plaintiffs include three of Martin’s children (Tiffany McGovern, Cody Romain and Hailey McGovern); Joseph McGovern, Martin’s father; and Ms. Romain, who says she was Martin’s common law spouse when the accident happened. The defendants deny any liability for the accident and also vigorously contest the damages claimed.

[3] Having considered the submissions, I am not granting the defendants’ motion to strike but am ordering further discovery of Ms. Romain and Tiffany McGovern on terms set out at the end of this endorsment.

Procedural history

[4] The plaintiffs sued the defendants in December 2014. At the time, Cody, Hailey, and Tiffany were minors. They are now adults, although no steps have been taken to remove Ms. Romain as their litigation guardian.

[5] The litigation has unfortunately moved very slowly. The defendants served a statement of defence in March 2015, and examined Ms. Romain for discovery in July 2017. That examination lasted about four hours. Cody, who at the time was just shy of his eighteenth birthday, was served with a notice of examination but did not attend. It does not appear that that the defendants took any step, at that time, to compel him to reattend. A mediation was held in March 2018.

[6] At her July 2017 examination for discovery, Ms. Romain testified that she had been receiving Ontario Disability Support Program payments since a car accident in 1996. She initially refused to produce her ODSP file, claiming it was irrelevant, but disclosed it shortly before mediation.

[7] On October 1, 2019, Mr. Treilhard emailed Paul Auerbach, who was then the plaintiffs’ lawyer. He said he was preparing a motion to compel disclosure of the Children’s Aid Society’s (CAS) record with respect to Ms. Romain and Martin McGovern, and asked Mr. Auerbach for his clients’ consent. He also said he had instructions to conduct further examination of Ms. Romain on her answers to undertakings and to arrange for examinations of the other plaintiffs.

[8] On October 2, 2019, Mr. Auerbach’s office set the action down for trial by serving and filing a trial record and a certificate of trial readiness. The certificate stated that all discoveries were complete and that there were no outstanding motions. This prompted Mr. Treilhard to send an email a week or so later, acknowledging receipt of the record, but noting that the certificate was inaccurate given his October 1 message. In his response that same day, Mr. Auerbach said that he had filed the certificate to ensure to avoid further delay in getting a trial date. He questioned whether any further discoveries were necessary and appropriate, given the information provided by Ms. Romain at her earlier examination and the possible psychological impact of examinations on her children. Mr. Auerbach said he