Court File and Parties

COURT FILE NO.: CV-20-636462 MOTION HEARD: 01272022 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Margaret Speed and Terrence Speed, Plaintiffs AND: Wal-Mart Canada Corp. operating as Walmart Richmond Hill Supercentre, Defendant

BEFORE: Associate Justice Jolley

COUNSEL: Lucia Paz, counsel for the moving party plaintiffs Kayley Richardson, counsel for the responding party defendant

HEARD: 27 January 2022

REASONS FOR DECISION

[1] The action arises from Margaret Speed’s slip and fall in the defendant’s store on 23 August 2019. There is evidence that Margaret Speed tripped over a floor mat near the entrance and fell.

[2] The plaintiffs bring this motion for answers to questions either refused during the defendant’s examination for discovery held 10 February 2021 or taken under advisement and subsequently not answered.

[3] The parties agree that rules 31.06 (scope of examination) and 29.2 (proportionality in discovery) are relevant to determining whether these questions must be answered.

[4] I am advised that U/A 1, 2, 3, 4, 11, 13 and R2 have now been answered. With respect to U/A 9, the defendant has advised that all photographs that are in its possession were provided in Schedule A of is affidavit of documents. Should any other photographs come into the defendant’s possession over which it claims litigation privilege, it will provide an updated Schedule B listing those photographs and the grounds for the privilege claim. Lastly, the defendant has agreed to provide the requested map (U/A 14) within 90 days of 27 January 2022 and has also agreed to provide the Bodily Injury Questionnaire (R4).

[5] The remaining questions have been organized into three groups: those where the defendant’s past history with the mat are in issue; those where the defendant’s actions after the incident were raised; and those where litigation privilege was invoked.

Group 1 – Questions concerning the defendant’s past issues with the mat in the vestibule coming out of the frame (U/A 5 - Q105; U/A 10 - Q165; U/A 15 - Q 225; R5 and 6 - Q 222; and R8 – Q 225. U/A 5 and 10 and R 5 and R6 appear in this grouping for that part of the questions that deal with the defendant’s past experience with the mat. They also appear in grouping 2 for post-incident conduct.)

[6] The plaintiffs have alleged in their amended statement of claim that the defendant knew or ought to have known from previous experience that the flooring, the system of maintenance and inspection and the design was deficient.

[7] The defendant concedes, based on the pleading, that prior incidents may be relevant and has, as a result, reviewed its work orders for the six months prior to the incident and its customer complaint records for two years prior to the fall to determine if there were issues about the mat or the frame. It has advised that there were no work orders or customers complaints during those time periods.

[8] The plaintiffs argue that this is insufficient. They suggest that the work orders should be checked for two years prior to the incident.

[9] I find the defendant has sufficiently answered the questions. There is no basis argued to support a belief that there would have been complaints in the 6-24 months before the fall when there were no complaints in the six months prior to the fall. Further, one would logically expect that, if there were complaints, they would have occurred closer to the fall than 2 years before it.

[10] At Q 225, the plaintiffs asked the defendant to inquire with the people who did the sweep whether they had observed issues with the mat before the incident. The defendant asked the individuals about incident in the six months before the incident and not the two years sought by the plaintiffs. For the reasons above, six months is sufficient.

[11] These questions need not be further answered.

Group 2 – Questions concerning the steps the defendant took with respect to the mat after the incident. (U/A 5 – Q105; U/A 10 – Q165; R1- Q99; R5 – Q222 and R6 – Q222)

[12] These questions sought information about whether the defendant investigated why the mat was sticking out of the frame and what steps it took to remedy the situation. Neither party had law on the relevance of post-incident remediation steps and were provided to 1 February 2022 to each provide two relevant cases.

[13] Based on a review of the law provided by counsel, I am satisfied that these questions are to be answered. More recent cases have held that questions concerning post-accident remedial measures are proper areas of inquiry at least on discovery. Admissibility and weight are best left to the trial judge. (See Algoma Central Railway v. Herb Fraser & Associates Ltd. 1988 CarswellOnt 535 (Ont. Div. Ct.). I find the questions are not a fishing expedition as the pleading raises the adequacy of the defendant’s inspection and maintenance of the mat. I note paragraph 6 (g) of the amended statement of claim, for instance, alleges that the defendant, its officers, servants, agents and/or employees failed to employ and/or have in place a reasonable system of inspection and/or maintenance of the floor of the Premises. The answers may well provide relevant information about reasonable care and reasonable standards.

[14] In answer to these refused questions, the defendant is to advise whether it investigated why the mat came out of the frame and what, if anything, it did about that issue.

Group 3 – claims of litigation privilege (U/A 6 – Q143; U/A 7 – Q143; U/A 8 – Q143; R3 – Q133 and R7 – Q225)

[15] U/A 7 asks why Mr. Galia prepared a Claims Management Report and U/A 6 asks whether the Claims Management Report is a document prepared in the ordinary course any time there is an incident, whether or not the defendant believes it might be sued.

[16] The defendant stated in argument that the Claims Management Report was prepared for the purpose of litigation (thus the heading “claims management”), in contrast to a similar internal document entitled an Incident Report which is filed for every incident. The defendant did not tender any affidavit evidence to support that position. The plaintiffs are entitled to the position of Mr. Galia, who completed the Claims Management Report. The transcript is clear that the position that the Claims Management Report was prepared in contemplation of litigation was provided by counsel based on her dealings with the defendant but that Mr. Galia did not specifically say that (see Q143, page 80). His evidence about why he prepared the report is particularly relevant in light of Walters v. Toronto Transit Commission, 1985 CanLII 2002 (ON SC), 50 O.R. (2d) 635 which held that, in the circumstances where a report was made by a transit commission operator and inspector shortly after an accident and before those individuals had any knowledge that there might be a lawsuit, it could not be said that the dominant purpose of the report was preparing for litigation.

[17] In answer to U/A 7, Mr. Galia shall advise why he prepared the claims management report. The plaintiffs are entitled to ask any follow up questions in writing with respect to this answer and entitled to bring whatever motion they wish should they still intend to challenge the claim for litigation privilege.

[18] In answer to U/A 6, the defendant shall advise in writing whether the claims management report is filled out whenever there is an incident regardless of whether it believes it is going to be sued.

[19] U/A 8 seeks a summary of the Claims Management Report. If the defendant continues to maintain privilege over the claims management report after Mr. Galia advises why he prepared it, it is not required to provide a summary of its contents, subject to any further motion by the plaintiffs challenging the claim for privilege. Schedule B documents are simply to be listed with the author disclosed and with the grounds for the privilege set out.

[20] At Q133 (R3), the plaintiffs seek production of the witness statements of Arif Orya and Pierrette Veitch. (Those statements are attached to the Claims Management Report). Depending on Mr. Galia’s answer, if the Claims Management Report is produced, the statements are to be produced. If Mr. Galia advises that he prepared the Claims Management Report for the dominant purpose of litigation and it was not a report that was prepared each time there was an incident, the defendant has agreed to provide a summary of the witness statements and will do so at the time it advises of Mr. Galia’s answer.

[21] At Q 225 (R7), the plaintiffs seek to know whether the defendant has any privileged information that goes to the issue of liability. The defendant has disclosed its privileged documents in schedule B. It is not required to disclose the contents, other than the witness statements where it has agreed to provide a summary. If further privileged information comes to light, it has an ongoing obligation to update its schedule B.

[22] I encourage the parties to agree on costs. If they cannot do so, they may file costs submissions with my assistant trial co-ordinator Ms. Meditskos no later than 2 March 2022.

Associate Justice Jolley

Date: 2 February 2022