Court File and Parties

COURT FILE NO.: CV-15-63980 DATE: 2022/12/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHAFIQ JIWA, CHANTAL PILOTE JIWA, ALLI JIWA, CRYSTAL JIWA and SAMIR JIWA by his Litigation Guardian ASHAD JIWA Plaintiff

AND

THE ESTATE OF SIMONE L. COX BY HER ESTATE TRUSTEES, DONALD G. GRANT AND JULIUS DAWN, DONALD LUCAS and INTACT INSURANCE COMPANY Defendants

BEFORE: Regional Senior Justice Calum MacLeod

COUNSEL: Thomas P. Connolly & Sarah Russell, for the Plaintiffs, Chantal & Samir Jiwa Ian Stauffer, for the Plaintiff Shafiq Jiwa Marc Chaput, for the Defendant Cox Estate Katie Gauthier for the Defendant Intact

HEARD: December 9, 2022

ENDORSEMENT

[1] This was a motion and cross motion brought to obtain answers to undertakings and refusals and to deal with a proposed pleading amendment. The matter is scheduled for an 8 week jury trial commencing January 23, 2023. Counsel had narrowed the issues and I signed a consent order submitted by two of the parties.

[2] The issues to be adjudicated included undertakings and refusals sought by the defendant Estate, undertakings and refusals sought by the plaintiffs Chantal & Samir, and a proposed amendment to the Estate’s defence. I will deal with these in order.

Background

[3] To put the matter in context, the plaintiff Shafiq was injured when he was pinned between a vehicle operated by the late Simone Cox and a vehicle operated by the defendant Lucas. This took place in May of 2013. The plaintiff Shafiq claims damages for personal injury. The plaintiffs Chantal and Samir claim damages under the Family Law Act arising from the injuries sustained by Shafiq. Chantal was the spouse of Shafiq but they are now separated. Samir is the son of Shafiq and Chantal. He suffers from a disability which requires that he be cared for by his parents although he is now an adult. The damages sought by Samir and Chantal arise due to Shafiq’s injuries which are said to make him less able to assist in caring for Samir.

[4] The dispute over undertakings and refusals is a disagreement about the proper scope of discovery and production. The dispute about the pleading amendment arises because the defendant Cox subsequently passed away and the Estate wishes to raise certain technical defences pertinent to estate litigation.

Defendant’s Discovery Motion

[5] As noted, Mr. Chaput and Mr. Stauffer have resolved the issues arising from the discovery of Shafiq Jiwa and have consented to a form of order which I signed.

[6] With respect to the discovery of Chantal Jiwa, there was an outstanding undertaking to obtain records of attendance by Samir at a program run by the Ministry of Community and Social Services. There has been difficulty in obtaining records, perhaps because there are various addresses and perhaps because when making the request, the plaintiff used the wrong release form.

[7] The parties are to cooperate. Counsel for the defendant will supply any information he has about the correct address. Counsel for the plaintiff will use best efforts to obtain the records including having the plaintiff sign the release in the form required by ComSoc.

[8] There were a series of questions asking the plaintiff to produce records of Childrens Aid Societies. Apparently there was a brief Society involvement with the family in 1995 and perhaps another in 2021. There is no evidence of any child protection proceedings or extensive involvement by the CAS with Samir or the family. Given the significant privacy issues surrounding child protection records, the lack of evidence that any such involvement was significant, any potential relevance of CAS records in the circumstances of this case is overwhelmed by the likelihood that such evidence would be more prejudicial than probative. I decline to order the plaintiff to track down and produce CAS records on the record before me.

[9] There were requests for Chantal to produce her medical and psychiatric records in an effort to challenge her FLA claim. On behalf of his client, Mr. Connolly states that she is no longer seeking any claim for loss of guidance or companionship from Shafiq. Her sole claim under the FLA is for the increased care giver burden assumed by her due to the impact of the accident on Shafiq. On this basis, Chantal is not putting her own physical or mental health in issue and on the plaintiff’s undertaking to withdraw all but subparagraph d) of the prayer for relief, I will not order the disclosure of the medical and psychological records.

Plaintiff’s Discovery Motion

[10] I am advised that liability has not been admitted. There are allegations that the defendant should not have been driving and was incompetent to drive on the occasion in question. It is the plaintiff’s evidence that the defendant Lucas called him over to the window of his vehicle to question why the defendant Cox was having difficulty getting into a parking space when the Cox vehicle backed up and crushed him against the Lucas vehicle.

[11] The plaintiff seeks production of the MTO records containing any restrictions, notations or suspensions in relation to the defendant’s driving record. That is a legitimate request and is to be answered.

[12] The plaintiff also asks the Estate Trustee to contact two of the beneficiaries of the estate who may have knowledge of the deceased’s driving ability. The record does not support a finding that these are witnesses under the control of the defendant. The plaintiff is free to contact these potential witnesses and interview them if they consent to be interviewed. The defendant is obliged to provide the contact information for those witnesses pursuant to Rule 31.06 (2) and to advise the plaintiff what knowledge the defendant has of the evidence those individuals might be able to give, if any.

[13] The plaintiff requests production of the medical records of the deceased and a decoded OHIP summary as well as her optometrist records. This is an effort to locate information that might indicate if the deceased should have been driving, required corrective lenses or other information which might assist in proving the defendant was negligent to be operating a motor vehicle at the time in question. This is an overbroad and overly intrusive request and largely unnecessary. If s. 193 of the Highway Traffic Act applies, then the onus is on the defendant to prove that the late Ms. Cox was not negligent. Even if the Act does not apply because the accident took place on private property and not on a highway, it would not be necessary to prove that the defendant should not have been driving. It will be enough to show that she backed up into the plaintiff without taking due care. I will not order this production without some basis in the evidence for doing so.

[14] There are numerous requests to comply with obligations for ongoing disclosure required by the Rules. Given that the parties are just over a month away from trial, these requests should not be dealt with piecemeal. Instead I will make a series of mutual pre-trial orders as follows:

a. The parties are to exchange lists of witnesses that may be called at trial along with a concise summary of the evidence no later than January 6, 2023.

b. Pursuant to Rule 31.06 (2) the parties shall also disclose the names and contact information of any potential witnesses that are not on their lists of witnesses but who are known to have potentially relevant evidence. This is also to be done by January 6, 2023.

c. Each party shall confirm by January 6, 2023 that all documents or other evidence viewed by their respective experts (including surveillance) is disclosed in the expert report and if not shall provide the particulars.

d. Pursuant to Rule 20.05 (2) (l) the parties shall exchange concise summaries of their opening statements by January 13, 2023 and pursuant to Rule 20.05 (2) (c) the parties shall prepare a statement of facts that are not in dispute to be used at the trial (also by January 13, 2023 at the latest).

e. In a separate document for use at trial, the parties shall agree upon a chronology of the key events and shall exchange and agree on such chronology by January 13, 2023 at the latest.

Pleading Amendment

[15] The defendant seeks to add a paragraph to the statement of defence as follows:

12. The defendant pleads the defence of Plene Administravit Praeter or, in the alternative. Plene Administravit. If, at the trial of this action, the plaintiffs are awarded damages in the amounts claimed in the amended fresh as amended statement of claim, the Estate of Simone Cox does not have assets sufficient to pay such an award in full.

[16] The defendant seeks to add this pleading out of an abundance of caution following the decision of the Court of Appeal in Brummund v. Baumeister Estate[^1] In that case, the Court of Appeal affirmed the law as stated in various authorities and texts that where an administrator of an estate is sued for a debt of the estate, the administrator must plead that he or she has administered the estate and the estate has insufficient assets to pay the debt. Failure to do so will render the estate trustee personally liable.[^2]

[17] I observe without deciding that this defence appears to be primarily necessary in debt cases where the plaintiff claims directly against the personal representative and the creditor advances a claim in “devastavit”. Essentially the latter is a claim that the estate administrator knowing of the claim either dissipated or “wasted” the estate.[^3] There is no such claim made in the present action.

[18] Assuming the plaintiffs are successful in their claim, it has always been obvious that the total claim would exceed the combined policy limits (2.2 million I am advised) and the estate would not be able to satisfy the resulting judgment. It seems to me that the time to advance claims for improperly rendering any defendant judgment proof in the face of litigation is normally at the time of enforcement.[^4] There is no claim in the current statement of claim against the estate trustees in their personal capacity. So, it appears to me this amendment is not necessary.

[19] I note that in Brummond, supra, the Court of Appeal approved the fact that the trial judge permitted the plea of plene administravit to be added to the defence at the end of the trial. In a more recent decision of this court, Hill v. Queensbury Strategies Inc., the court noted found the deceased liable for negligence and negligent misrepresentation but also noted the effect of pleading the defence in the following words:

The evidence of Dorothy was uncontested. The assets in the estate, which were left in her hands were $1,400.98. Dorothy pleads and relies on the doctrine of Plene administravit, which was adopted by the Ontario Court of Appeal in the case of Brummund v. Baumeister Estate. If the doctrine is pled, as it was here, then Dorothy, as the Executor/Estate Trustee, is liable only to the assets proved to be in her hands from the assets of the deceased.

[20] In the case before me, the plaintiff does not object to the addition of the defence although he argues that it is not necessary because no claim is advanced against the estate trustee (at this point in time at least). But he does seek terms. Specifically, Mr. Conolly argues that if a conclusion of law is pleaded, the material facts which lead to that conclusion must also be pleaded. In this case, he argues that the estate must plead how much was in the estate and what and when the estate became impecunious. He then seeks discovery on these points.

[21] I agree that Rule 25.06 (2) requires that material facts be pleaded to support a conclusion of law. Rule 25.06 (1) however provides that facts and not evidence are to be pleaded. I have observed in many pleading decisions that there is not necessarily a bright line between material facts, particulars and evidence but in this case I am satisfied that the words of the proposed paragraph which plead that the estate has insufficient assets to satisfy the claim in full if judgment is awarded meet the test. Plene administravit or “fully administered” is simply notice to the plaintiff that any judgment will attach to the assets of the estate and not to the estate trustee personally.

[22] As noted above, I do not consider it necessary to add this defence when the estate trustee has not been sued in his personal capacity and there is no plea of mismanagement or dissipation of the estate. Nevertheless, there is no prejudice to the plaintiff in allowing the amendment. The plaintiff never anticipated a judgment against Mr. Dawn or Mr. Grant. I am allowing the amendment as worded. There will be no order for discovery. If and when there is judgment, all necessary questions can be asked at a judgment debtor examination.

Conclusion

[23] For the reasons set out above, there will be an order that all parties cooperate and use best efforts to complete any outstanding undertakings by the end of the year. The consent order signed by me may also issue. The plaintiff Chantal Jiwa will limit her claim as she has undertaken to do and the parties will comply with the pre-trial directions set out in paragraph 14. Leave is granted to the defendant to amend the statement of defence by adding the paragraph quoted above.

[24] I indicated to the parties that I would receive submissions on costs if necessary. I would suggest however, that success has been divided. If counsel seek costs, they are to contact my office within 15 days for further direction failing which there will be no order for costs.

December 9, 2022

C. MacLeod RSJ

[^1]: 2000 CarswellOnt 4863, 2000 16988 (Ont.C.A.) [^2]: At paragraph 8 of the decision. [^3]: See paragraph 11 of the decision [^4]: See for example the Fraudulent Conveyances Act, RSO 1990, c. F.29