Severance et al. v. O’Hanley et al. 2023 ONSC 2739

Court File and Parties

COURT FILE NO.: CV-17-25-00, CV-17-36-00 DATE: 2023-05-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N: CV-17-025-00

LANDEN O’BRIEN, a minor by his Litigation Guardian, KATHERINE O’BRIEN, and the said KATHERINE O’BRIEN

S. Rastin, for the Plaintiffs, LANDEN O’BRIEN, a minor by his Litigation Guardian, KATHERINE O’BRIEN, and the said KATHERINE O’BRIEN

Plaintiffs

• and -

ROBERT HORYCHUK, ENTERPRISE RENT-A-CAR CANANDA COMPANY, BRADY O’HANLEY, MINISTRY OF TRANSPORTATION and CARILLION CANADA

I. Kirby, for the Defendants, ROBERT HORYCHUK and RENT-A-CAR CANADA T. Wasserman, for the Defendants, His Majesty the King, In the Province of Ontario represented by the Minister of Transportation for the Province of Ontario incorrectly named as the Ministry of Transportation

Defendants AND BETWEEN: CV-17-36-00

EDWIN ARTHUR SEVERANCE, SHANNON RAE SEVERANCE, KENNEDY JENNIFER SEVERANCE by her Litigation Guardian SHANNON RAE SEVERANCE and EDWINA SEVERANCE Plaintiffs -and- BRADY O’HANLEY, KATHERINE ANNE O’BRIEN, ROBERT HORYCHUK, ENTERPRISE RENT-A-CAR CANADA COMPANY, MINISTRY OF TRANSPORTATION and COLLISION CANADA Defendants

D. Lester, for the Plaintiffs, Edwin Severance, Shannon Rae Severance, Kennedy Jennifer Severance by her Litigation Guardian Shannon Rae Severance and Edwina Severance B. Bangay, for the Defendant, Brady O’Hanley B. Chambers, for the Defendant, Katherine Anne O’Brien

HEARD: November 17, 2022, at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Decision On Motion

OVERVIEW:

[1] There are two actions arising out of a tragic series of incidents involving motor vehicles that occurred on February 20, 2015, on Highway 17, in Coldwell Township, west of the community of Marathon, Ontario, in the District of Thunder Bay, in an area known as “Red Sucker Hill”.

[2] Robert O’Brien (“O’Brien”) was killed as a result of these incidents and Edwin Severance (“Severance”) was injured. O’Brien’s wife and child (the “O’Brien Plaintiffs”) have commenced an action against various defendants, including the Ministry of Transportation for the Province of Ontario (His Majesty The King, In Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario, and referred to in this decision as “HMK”). Severance and his Family Law Act claimants (the “Severance Plaintiffs”) have commenced a separate action. Both actions have been ordered to be tried together. HMK is a Defendant, Plaintiff by Crossclaim, and Plaintiff by Counterclaim.

[3] This motion brought by the Severance Plaintiffs is for an Order requiring a representative of HMK to answer refusals and questions taken under advisement at Examination for Discovery, and that said representative reattend at HMK’s expense to answer those refusals. All other parties, save and except HMK and Carillion, support the Severance Plaintiffs’ motion.

[4] HMK resists the relief sought on the basis that HMK is not compellable for discovery with respect to claims brought under provincial highway maintenance legislation, and even if HMK were compellable, the questions refused are not proper questions.

[5] The threshold issue arising out of the Plaintiffs’ motion is whether HMK is an examinable party in this action, and therefore whether this Court has the jurisdiction to compel HMK to reattend to be examined and answer questions that were refused.

[6] If the threshold issue is answered in the affirmative, I must determine whether the refusals given, or matters taken under advisement at the examination for discovery of the representative of HMK were proper questions that should be answered.

[7] For the reasons set out below, I find that HMK is not compellable for discovery, and therefore this Court has no jurisdiction to order HMK to reattend to answer refusals.

THE FACTS:

The Accidents Giving Rise to the Actions:

[8] At approximately 6:30 p.m. on February 20, 2015, the Defendant, Brady O’Hanley (“O’Hanley”) was driving a vehicle westbound on Highway 17 in the area of Red Sucker Hill. A winter storm was happening, it had been snowing and driving conditions are alleged to have been poor.

[9] O’Hanley lost control of the vehicle while driving down Red Sucker Hill, causing him to cross the centerline and strike the guardrail on the opposite side of the road. O’Brien was a passenger in vehicle driven by O’Hanley but owned by O’Brien’s wife. Neither O’Brien nor O’Hanley were injured in this first accident.

[10] O’Brien and O’Hanley got out of the vehicle and tried to flag down passing vehicles for help. Severance happened upon the accident and stopped. He called for a tow truck.

[11] O’Brien, O’Hanley, and Severance were all standing on the side of the road with their backs to oncoming traffic when Robert Horychuk’s (“Horychuk”) vehicle lost control coming down descending Red Sucker Hill. The Horychuk vehicle struck O’Brien and pushed him into the O’Hanley driven vehicle. Severance hit his head during this second accident and has no recollection of it whatsoever. O’Hanley was not injured.

[12] Tragically, O’Brien died from his injuries sustained in the second accident. He died leaving a wife and minor son.

[13] Severance suffered a number of injuries, which the Statement of Claim describes as “serious and permanent injuries and impairments”. These injuries include (but are not limited to) concussion, brain injury, headaches, fatigue, memory loss, concentration issues, depression and anxiety, post-traumatic stress disorder, various soft tissue injuries, and chronic pain. He alleges he will require “extensive medical and rehabilitation therapies” on “an ongoing and indefinite basis”.

The Highway Maintenance:

[14] The Defendant, Carillion Canada Inc. (“Carillion”), was under contract with HMK to maintain the stretch of road where the collisions took place. The included responsibility for snow removal and salt/sand to deal with icy conditions.

[15] The Plaintiffs allege that the HMK and Carillion were negligent in various acts and omissions relating to the condition of Highway 17 at the time of the accident.

The Litigation:

[16] The O’Brien action was commenced January 5, 2017, with the Severance action being commenced shortly thereafter on January 23, 2017. The Defendants to both actions are similar, save and except that Severance has also named Katherine O’Brien as a Defendant to their action given that she was the owner of the O’Hanley driven vehicle.

[17] HMK defended both actions on behalf of itself and Carillion, crossclaimed against the other Defendants, and counterclaimed against the Plaintiffs. Pleadings were completed by the end of May 2017.

[18] Liability of HMK in both the Severance and the O’Brien actions is an issue.

[19] Productions were exchanged and discoveries took place between 2018 and 2020.

[20] In the examinations of various Plaintiffs and Defendants, Counsel for HMK asked questions relevant to the substantive issues in the actions and sought undertakings.

[21] On January 25, 2018, Carillion and its related companies filed for creditor protection pursuant to the Companies’ Creditors Arrangement Act. As a result of the creditor protection proceedings these actions were initially stayed as against Carillion. The stay was subsequently lifted on the agreement by both sets of plaintiffs that they would not seek to have Carillion’s employees attend as witnesses on an examination for discovery.

[22] Examinations for discovery of a representative of HMK, Mr. Donald Petryna, was completed on August 6, 2020. By way of letter dated May 26, 2017, Counsel for HMK had noted that production and discovery by the Crown in a case of this nature was voluntary under the Public Transportation and Highway Improvement Act, R.S.O. 1990 c. P.50 (“PTHIA”). Counsel for HMK stated on the record at the commencement of the discovery the voluntary nature of HMK’s participation and the general scope of what HMK was prepared to answer.

[23] At his examination for discovery, Mr. Petryna refused to answer several questions that were asked of him, and others were taken under advisement. The questions taken under advisement were not subsequently answered and are therefore deemed to be refusals pursuant to rule 31.07 of the Rules of Civil Procedure.

[24] The refusals and matters taken under advisement related to the following broad categories:

a) To provide particulars of the contract between HMK and Carillion with respect to Carillion’s duties for Highway 17 maintenance, sanctions for non-performance in accordance with the terms of the contract, and insurance requirements.

b) To provide records relating to collisions and reports of complaints regarding road conditions for the section of the road where the subject accidents took place.

c) To provide records as to audits done by HMK of Carillion’s performance.

d) To provide GPS records for Carillion vehicles servicing the route where the accidents giving rise to the actions occurred.

[25] Some further answers were provided by HMK by letter dated October 23, 2020, related to the insurance obligation of Carillon under the terms of its contract with HMK. The general nature of insurance required by the contract was set out in the letter.

[26] On October 26, 2020, HMK provided the parties with the raw GPS data disclosing the location of the winter maintenance equipment that had been deployed during the winter event in which the accidents occurred. Additionally, HMK commissioned reports from Forensic Dynamics Inc., to interpret the raw GPS data and provide an opinion as to the adequacy of the winter maintenance in response to the winter storm in question. This report was sent to all counsel on May 4, 2021.

ANALYSIS:

Issue #1 – Does this Court have jurisdiction to compel HMK to re-attend and answer any proper questions that it previously refused or took under advisement?

Background to the Law of Discovery of the Crown:

[27] Generally, a party has a right to an examination for discovery of other parties to an action: Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 119.

[28] This general rule does not apply when the other party is the Crown.

[29] Examinations for discovery were not available at common law and originated in the courts of Chancery. Later reform created statutory rights of discovery.

[30] Section 71 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, enshrined the principle set out in cases such as The Queen v. Canadian Transport Commission, [1978] 1 S.C.R. 61, that statutes do not bind the Crown unless they clearly state as such.

[31] As a result, the Crown is not subject to discovery unless a statute states that it is. Absent statutory authority, the Superior Court lacks jurisdiction to compel discovery from the Crown in a civil proceeding: Abou-Elmaati (Attorney-General), 2011 ONCA 95, 104 O.R. (3d) 81, at para. 18.

[32] For example, such rights are provided for in the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (“CLPA”) and its predecessor legislation, the Proceedings Against the Crown Act (“PACA”). Neither the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) nor the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), expressly state that they bind the Crown. As such, they cannot be relied upon to compel documentary or oral discovery of the Crown: Canada Deposit Insurance Corporation v. Code, 1988 ABCA 36, at paras. 37-43, para. 51 citing A.G. Quebec and Jean Keable v. A.G. Canada et. al., [1979] 1 S.C.R. 218 at p. 245, and para. 54.

[33] The principle was recognized by the Ontario Court of Appeal in Longo v. The Queen, [1959] O.W.N. 19 (C.A.), [1958] O.J. No. 402 in the context of the predecessor to the PTHIA, namely The Highway Improvement Act, Chap. 43 of the Statutes of Ontario, 1957 (“HIA”).

[34] In Longo, the court confirmed that the Crown’s privilege to refuse discovery can only be taken away by express words in a statute. After reviewing s. 32(7) of the HIA, which is substantially identical in wording to the relevant provision of the PTHIA, the Court of Appeal held that in the absence of an express provision in the HIA or the Rules of Practice that specifically provided for a right of discovery against the Crown, a party to an action commenced under the HIA cannot compel oral discovery of the Crown.

[35] Longo was decided before the coming into force of the PACA. The PACA was in effect at the time of commencement of, and is applicable to, the Severance and O’Brien actions. The PACA was contemplated by the Court of Appeal in para. 3 of Longo, when the court acknowledged that the legislature had chosen to incorporate an express provision for discovery in the PACA but not the HIA:

“…It may be properly concluded that in the absence of an express provision of a like kind to what is found in sec. 10 of The Proceedings Against the Crown Act, that no such examination for discovery from an officer of the Crown can be had.”

[36] The relevant provisions of the version of the PACA applicable to these actions are:

a) Section 2(1) states that the act does not affect and is subject to the PTHIA.

b) Section 8(1) provides that the rules of court related to discovery are applicable to proceedings against the Crown.

[37] There has developed some conflict in the jurisprudence since Longo as to whether it remains good law, and whether the Crown may be compelled to give discovery in a claim under the PTHIA.

[38] HMK takes the position that Longo and the cases following Longo are binding on this Court. HMK argues that this action is not governed by the PACA, which specifically provides discovery rights against HMK. HMK says that this action is governed by the PTHIA, which does not provide for any discovery rights. HMK argues that because there are no express discovery rights found in the applicable legislation, similarly this Court cannot compel reattendance on discovery to answer refused questions.

[39] HMK argues that Mr. Petryna was produced under very specific terms. The parameters of his voluntary attendance were addressed on the record at the commencement of his examination. He was produced specifically to provide information with respect to the winter maintenance activities that were performed in relation to the storm during which the subject accident occurred. He answered questions related to this area and the Plaintiffs and other Defendants have no further right to question him.

[40] The Plaintiffs and other parties (collectively referred to the “moving parties”) take the following position:

a) By virtue of HMK defending and taking steps in this action they have attorned to the jurisdiction of the court. Specifically, by having voluntarily participated in both the questioning of other parties and producing a representative for discovery, HMK is no longer able to argue a lack of jurisdiction by the court to order re-attendance.

b) If I disagree with the attornment argument, the moving parties rely on the decision of Ryan Bell, J., in Taylor v. Mayes, 2019 ONSC 5651 in which she declined to follow Longo and held that the PTHIA does provide for a right of discovery against the Crown. They urge me to follow this decision as opposed to other decisions relied upon by HMK to the contrary. They argue that this decision reflects a more modern approach to the issue of Crown prerogative.

[41] Longo, the PACA, the HIA and the ability of the court to order a Crown officer to return and answer questions initially refused on an examination for discovery were considered in Ratkevicius et. al. v. The Queen, [1966] 2 O.R. 774-776 (Master). In Ratkevicius, as with the case at hand, the Crown voluntarily produced a representative for discovery. The Plaintiffs relied on a section of an earlier version of the PACA that is similar to s. 8(1), providing for discovery. Master Rodger, citing Longo and s. 2(1) of the PACA, noted the Crown argument that the discovery provisions of the PACA were not applicable to the HIA actions. The Crown argued in Ratkevicius, as they do here, that if there was no ability to compel the Crown to attend for discovery in the first place, there is no ability to compel the Crown to reattend to answer refusals.

[42] The Plaintiffs in Ratkevicius argued that Longo had no application given that the PACA had not yet been proclaimed in force. Of significance to this case, the Plaintiffs argued that the Crown waived any right to claim the Crown was not compellable for discovery by virtue of having voluntarily produced a representative for the initial discoveries. Master Rodger determined that the HIA applied and dismissed the request to have the Crown representative reattend.

[43] In Cristante v. Grubb, 2016 ONSC 5029, Mitrow J., was faced with a motion to compel the Crown to satisfy undertakings, answer refusals and to compel reattendance of the Crown representative to complete the examination for discovery. The Crown was the third party to the action, and the Defendants had brought the motion to compel reattendance. The Defendants argued that it was not a foregone conclusion that an action commenced pursuant to the PTHIA may not also be subject to PACA. Mitrow J., reviewed the PACA, the PTHIA, and Longo, and at para. 16, found that there is no right of discovery against the Crown for an action commenced under the PTHIA. Because the Crown was not compellable to attend at discovery, he also held that they cannot be compelled to answer refusals. While there is no indication that the Defendants argued attornment to the jurisdiction of the court, Mitrow J., did specifically note the Crown’s voluntary participation in the discovery process.

[44] There are other competing recent decisions of the Superior Court of Justice on the issue of compellability of the Crown for documentary and oral discovery in an action under the PTHIA.

[45] In Mitchell v. HMQ, 2017 ONSC 6238, at para. 38, Shaw J., considered whether discovery should be ordered in a proceeding under the Motor Vehicle Accident Claim Funds Act, R.S.O. 1990, c. M. 41 (“MVAC”). Like PTHIA, s. 2 of PACA states that it does not affect and is subject to the MVAC Act. Shaw J., found that the discovery rights found in s. 8 would not apply to the MVAC Act claims as there is no similar discovery provision specifically set out in the MVAC Act.

[46] In reaching this conclusion Shaw J., relied on Wren v. Superintendent of Insurance, [1976] O.J. No. 2012, at paras. 23 to 28, wherein Cory J. (as he then was) also had to decide whether an Ontario government official could be compelled to attend and be examined for discovery under MVAC. Cory J., determined that the Crown could not be compelled. In doing so he noted the following:

a) The common law royal prerogative that results in the Crown not being compellable to give discovery;

b) The royal prerogative exists unless taken away by clear and precise language of a statute;

c) PACA specifically provides in s. 2 that it does not affect the MVAC Act and therefore, it is not applicable;

d) Specific provisions were made in PACA for discovery, yet none were made in MVAC.

e) Therefore, the Crown is not compellable on an examination for discovery for an action governed by the MVAC Act.

Cory J.’s analysis of the issue was virtually identical to that of the Court of Appeal in Longo.

[47] Where the conflict in the caselaw arises is in Taylor v. Mayes, 2019 ONSC 5651. In that case, Justice R. Ryan Bell found that the Defendants are entitled to pre-trial discovery of the third party, HMQ. It is the only case cited to me that has found a right of pre-trial discovery under PTHIA. After reviewing s. 2 of the PACA and noting that there is no provision in PTHIA similar to s. 8 of PACA, she rejected the Crown argument that the PTHIA cannot be supplemented by the PACA with respect to discovery rights. At para. 33, she held that HMQ’s interpretation of the PTHIA to the contrary was unduly narrow. She held in paragraphs 33 to 38 that a plain reading of s. 33(7) of PTHIA, and particularly that portion of the section that states that actions commenced under the act may be carried on “in the same manner as in an action brought by a subject of Her Majesty against another subject”, lead to the conclusion that “s. 33(7) of the PTHIA contemplates discovery rights against the Crown in relation to an action commenced against the Crown under that statute.”

[48] Justice Ryan Bell, at para. 39 noted that while the PACA is expressly subject to the PTHIA, there is no inconsistency between the PACA and the PTHIA on the issue of discovery rights against the Crown that would warrant the ousting of the s. 8 discovery provision in the PACA.

[49] Justice Ryan Bell distinguished Longo on the basis that it was decided before the enactment of PACA and s. 8 therein. At para. 37, she also cited Mattick Estate v. Ontario (Minister of Health), 52 O.R. (3d) 221 (Ont. C.A.), at para. 14, where the Court of Appeal described the statutory right to sue the Crown as being “an accepted part of our legal landscape”, and that:

[e]ven if the legislated move away from Crown immunity might, in the beginning, have suggested a strict approach to construing the Act, there now seems to me to be no reason to depart from normal principles of statutory interpretation, most importantly, as applied to this case to the statutory language used and the legislative purpose being addressed.

[50] Ultimately, Ryan Bell J., concluded that a plain reading of the words “carried on in the same manner”, includes the discovery obligations to which all parties are subject.

[51] Of significance to the case at hand, is that Justice Ryan Bell also found that the Crown had voluntarily agreed to discovery, had participated in the discovery of the other parties, and therefore it was just and appropriate that the Crown be required to comply with its agreement.

[52] Ryan Bell J.’s analysis was not accepted by Broad J., in Stegenga v. Jans, 2021 ONSC 7898. This is the most recent decision on this issue. After reviewing all of the foregoing cases, the relevant statutory provisions and principles, and despite finding that the circumstances in Taylor were “functionally indistinguishable”, Justice Broad declined to follow Taylor and held that the Crown was not compellable to provide documentary and oral discovery in a claim under the PTHIA.

[53] HMK urges me to follow Stegenga. HMK cites Strathy J. (as he then was) in R. v. Scarlett, 2013 ONSC 562, at para. 43, as follows:

“The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them…”

[54] The Plaintiffs and parties who support the Plaintiffs’ motion urge me to follow Taylor and not Stegenga. They argue that Taylor is more consistent with a modern approach to the issue of Crown prerogative. They further argue that the cases relied on by Justice Broad in Stegenga are distinguishable from the case at bar because the Crown in those cases did not attorn to the Court’s jurisdiction as they have done here.

[55] At paragraph 52 of Stegenga, Broad J., found that Taylor represented a sharp divergence in the jurisprudence that pre-dated even Longo. He disagreed with Ryan Bell, J’s conclusion that Longo was distinguishable on the basis that it was decided before PACA came into force. He noted the Court of Appeal’s reference in Longo to the yet to come into force statute. Even though the statute was not in force at the time of deciding Longo, it was in fact considered by the court, although I note that the interaction between the PACA and HIA was not an issue before the court.

[56] Broad J., noted that Wren dealt head on with the effect of PACA on discovery rights in a MVAC action and had not been cited to Justice Ryan Bell. At para. 59 he stated:

“In my view, given that the PTHIA and the MVACA were both excluded from the application of PACA, the analysis is identical in respect of actions commenced under each of these statutes.”

He further noted that Ryan Bell J., did not specifically distinguish Cristante, nor did she address the principle of judicial comity in relation to it. Broad J., found no reason to depart from the line of cases that have followed and applied Longo.

[57] This is an issue that would benefit from appellate intervention. On the one hand, Ryan Bell J.’s analysis in Taylor is more attractive to me than the Longo/Stegenga analysis. The conclusions of Ryan Bell J., accord with a modern approach to the issue of Crown prerogative. I note that the Court of Appeal in Longo specifically recognized that the case was decided at a time when discovery rights against the Crown were at an early stage. That is no longer the case. Discovery is an important step in civil matters for the parties to be able to assess the strength and weaknesses of their respective cases and to exchange evidence that will be relevant to a determination of the case.

[58] Having said this, like Broad J., I am concerned that I am bound by the Court of Appeal in Longo and the cases that have subsequently followed it. In Longo, the court specifically stated that s. 33(7) is a remedial legislation designed to permit the bringing of an action in court in accordance with ordinary procedure in substitution for proceedings by way of petition of right.

[59] In para. 2 of Longo, Laidlaw J.A. stated specifically that this was the purpose of the words in s. 33(7) of the PTHIA:

“…It enables a party to commence and maintain that action without the fiat of the Lieutenant-Governor or the consent of the Attorney-General, and it declares that the action in the court is to be carried on and judgment given in the same manner as in ordinary cases. It does not create a right or a remedy of discovery. If such a right or remedy is to be found it must be found in the Rules of Practice of this Court.”

[60] Also attractive is Ryan Bell J.’s conclusion that the PACA and PTHIA are not inconsistent, thereby allowing them to be read together to provide for discovery rights. Unfortunately, this conclusion runs contrary to the body of caselaw since Longo. Some of these cases were decided post-Mattick and in an era in which Crown discovery is more common. Other than personal preference, I have no cogent reason to depart from these cases and am bound to follow them. I find there is no right of discovery against the Crown under the PTHIA.

Attornment:

[61] The moving parties cite Mid-Ohio Imported Car Co. v. Tri-K Investments Ltd., at para. 6, Van Damme v. Gelber, 2013 ONCA 388, at para. 22, and Wolfe v. Pickar, 2011 ONCA 347, at para. 44, as authorities for the proposition that when a party participates in the merits of a case as opposed to appearing solely to protest jurisdiction, that party has attorned to the jurisdiction of the court.

[62] A provincial Crown is no different than any other party when it comes to attornment by participation on the merits. If the provincial Crown goes beyond asserting its jurisdictional challenge and participates on the merits of the case, then it will have attorned to the jurisdiction of the court: Kaman v. British Columbia, 1999 ABQB 216, at paras. 5, 8, 17, and 19-20.

[63] I reject this argument of the moving parties. At issue in Mid-Ohio, Van Damme, Wolfe, and Kaman was the jurisdiction of the court to determine the action itself. The provincial Crown in this case acknowledges the jurisdiction of the court to determine the action but takes the position it is not compellable for discovery in actions commenced under the PTHIA. None of the cases cited by the moving parties dealt with such an argument. On the other hand, there is case law cited by the Crown, and reviewed above, that has held that even in circumstances in which the Crown voluntarily participates in discovery, if the court cannot compel attendance at discovery, then it similarly cannot compel reattendance to answer refusals.

[64] While I appreciate the analogy the moving parties seek to draw, from a practical perspective it makes sense to reject the attornment argument. If the Crown was not otherwise obligated to participate in discovery and knew that by doing so voluntarily it could be compelled to reattend to answer questions broader in scope than the basis on which it voluntarily agreed to attend, it is likely that the Crown would stop voluntarily participating in discoveries. This could have a detrimental impact on the ability of the parties to properly assess and litigate these cases.

Issue #2: Were the Questions Refused Proper Questions:

[65] In Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 129, Perell J., summarized the following principles, established by the case law, as applicable to determining the scope of questioning on an examination for discovery:

a) Discovery questions must be relevant to any matter in issue, as defined by the pleadings;

b) An examining party must not go beyond the pleadings to find a claim or defence that has not been pleaded. This is known as a “fishing expedition” and is not permitted.

c) The extent of discovery is not unlimited, with the court having an obligation to keep it within reasonable and efficient bounds to avoid it becoming oppressive and uncontrollable.

d) A witness may be questioned for hearsay evidence because they are required at discovery to give not only his or her knowledge but his or her information and belief about the matters in issue.

e) A witness may be questioned about the party’s position on questions of law.

If I am incorrect and HMK is compellable to respond to refusals given at the examination for discovery, my rulings on the refusals are set out in the chart attached as Schedule “A” to this decision.

ORDER:

[66] The motion is dismissed.

[67] Given the confusion in the caselaw the motion was reasonable. This is not an appropriate case for costs. If there are facts that I am unaware of that suggest a costs order is appropriate, a brief appearance may be scheduled before me.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: May 4, 2023