Court File and Parties

COURT FILE NO.: CV-21-3218-0000 DATE: 20230523 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHELENE LEDGISTER, Plaintiff AND: ANDREW DYLAN WOOD, Defendant

BEFORE: Justice McSweeney

COUNSEL: Fawad Siddiqui, for the Plaintiff Pooja Kapoor, for the Respondant

HEARD: May 23, 2023, by video conference

Endorsement

[1] Defendant insurer in MVA returned this motion on short motions list in Brampton for an order compelling Plaintiff to serve further affidavit of documents and to produce 15 categories of records (the Records in Issue) taken under advisement at her discovery.

[2] The Records in Issue are primarily clinic records of health care providers who saw or may have seen the plaintiff prior to and/or following the MVA. Some are files from previous litigation.

[3] The Plaintiff is not disputing that the advisements are now deemed refusals, nor does she oppose production of the Records in Issue, as described in the draft order tendered on the motion by the moving party.

[4] However Plaintiff takes the position that she complied with the Rules in preparing her Affidavit of Documents, in which Schedule A listed relevant documents within her possession, control or power.

[5] The Plaintiff submits that the Records in Issue are all in the possession of third parties, and therefore that in order to comply with the requested production, the Defendant must agree to pay either the cost to obtain the records, or the reasonable copying costs of same.

[6] Plaintiff submits that the Defendant agreed at discovery to pay reasonable photocopying costs, which was acceptable to Plaintiff, but then resiled from that position and now asks the Plaintiff to obtain and produce to the Defendant copies of the Records in Issue at its sole cost.

[7] Defendant counsel confirming on motion that Defendant refuses to pay the costs to copy or duplicate the Records in Issue, as they are within the Plaintiff’s possession, power and control. Therefore, Defendant argues, Plaintiff was required to list and produce the Requested records at her own cost in her Affidavit of Documents at Schedule A. Her failure to do so requires the court in this circumstance to order her to produce a further affidavit of documents.

[8] Defendant counsel was emphatic in her submissions that, should the court not make the order requested, the consequence is that the burden of funding, if not proving, the Plaintiff’s case has effectively been shifted to the Defendant, which case law shows Courts have consistently and properly refused to order defendants to do.

[9] Both counsel tendered factum and authorities in support of their position.

[10] The Court considered submissions on the motion, reviewed the parties’ facta and portions of the record (over 500 pages) to which it was directed by counsel. It was simply not possible to read every page submitted and uploaded.

Findings and Analysis

[11] It is not disputed that the Plaintiff produced a sworn affidavit of documents containing copies of Schedule A productions. Those included relevant documents in her possession, and such medical records she had obtained.

[12] It is also not disputed that the Defendant took no issue with the sufficiency of the affidavit of documents prior to conducting the discovery of the Plaintiff.

[13] The record does not support moving parties’ assertion that the Records in Issue are within the Plaintiff’s possession, control or power. I find that they must be obtained by the Plaintiff from third parties.

[14] Plaintiff counsel took the court to the following exchange at the Plaintiff’s examination for discovery, found at page B-1-52 of CaseLines:

• MS. PATEL [def counsel]: Counsel, could I get an undertaking for the property damage file?
• MR. SIDDIQUI [Pl counsel]: Counsel, any undertakings that are requested that are in the possession of third parties, is your client willing to pay the costs to obtain those productions?
• MS. PATEL : No. We’ll pay for the reasonable photocopying costs .
• MR. SIDDIQUI: Okay. That’s fine.

[15] I find that the exchange above constitutes agreement between counsel, as to their general approach to cost allocation where the Plaintiff is required to produce records that are not in her possession. That is, Plaintiff will assume the cost to obtain them, and the Defendant will pay the reasonable costs to photocopy or duplicate. On the motion before me, neither party’s counsel disagreed with the meaning of the exchange.

[16] The moving party’s factum on the motion reiterates the same position as that taken by its counsel at discovery, as follows: “The Defendant is responsible for paying the reasonable costs associated with duplicating the records for the Defendant. The Defendant is not responsible for paying the cost of obtaining the records themselves” [at paragraph 52].

[17] The Defendant’s factum does not quote from any cases of assistance in this analysis in which the Court ordered Plaintiff to pay costs to obtain and disclose documents sought at discovery that had not been listed in Plaintiff’s Schedule A, and were not in Plaintiff’s possession, power or control.

[18] The case of Aldea v Levy, 2018 ONSC 6162 is cited by the Defendant in its factum as support for its position in this regard. Master (now Associate Justice) Jolly found that “by listing the documents in Schedule “A” of her affidavit of documents, the plaintiff had sworn that she does not object to producing the documents for inspection. She cannot now object to their production or impose some terms on which they will be produced. “

[19] The reasoning in that ruling does not assist the Defendant here. In this case, the Plaintiff did not include the Records in Issue in her Schedule “A”, and as such, made no representation that she could produce the documents without requiring terms on which they would be produced. I also note that the Defendant seeks the documents themselves on this motion, not an opportunity to “inspect” the documents.

[20] In response to the Court’s question, both counsel conceded that yes, the general approach in MVA litigation is that the plaintiff is responsible for the cost of obtaining and producing the documents in its Schedule A, and the Defendant is responsible for paying for records produced in response to its questions at discovery.

[21] I do not agree with the Defendant’s submission that the Plaintiff was obligated to obtain and to list in Schedule A the various Records in Issue, which the evidence does not establish were within her possession, control or power.

[22] As such, I decline to order Plaintiff to produce a further affidavit of documents.

[23] With respect to who should pay any cost to obtain the Records in Issue, I do not need to determine this, as the Plaintiff has taken the position, and is therefore hereby directed, to obtain the Records in Issue at her own cost.

[24] With respect to providing the Defendant with copies of the Records in Issue once she obtains them, the Plaintiff is ordered to produce them to the Defendant following receipt from Defendant of payment of its reasonable duplication costs.

[25] I note that in making this order I am doing no more than requiring the Defendant to comply with its own position, referenced by its counsel at discovery and admitted in its factum at paragraph 52, that “The Defendant is responsible for paying the reasonable costs associated with duplicating the records for the Defendant.”

Costs

[26] Both parties sought costs of the motion if successful. Moving parties’ costs (all figures rounded) were in the range of $6,000 partial indemnity, $9,000 substantial indemnity; responding Plaintiff’s costs were higher, at $9,000 partial indemnity and $15,000 substantial.

[27] In considering an award of costs, I take into account that the Plaintiff was the successful party. I consider also that in the Court’s view, the motion would not have been necessary if the Defendant had not insisted that the Plaintiff be compelled to produce a further Schedule A with the Records in Issue included, entirely at her own cost.

[28] The Defendant’s position was not reasonable, nor was it necessary in order to obtain the documents sought. As a result, a disproportion in time and effort was required of the Plaintiff to respond to this motion.

[29] I also find that the record indicates that the Plaintiff had made consistent attempts to avoid the necessity of this motion by proposing methods of addressing the related costs, including offering to obtain the requested records if the Defendant would confirm its agreement to pay duplicating costs.

[30] In these circumstances the Plaintiff is entitled to its party and party costs. Although I agree with both parties that the other’s costs appear high, I must take into account that although larger disbursements may have been incurred by moving party, more efforts to resolve were made by Plaintiff.

[31] In awarding costs, I also take some reduction for the fact that although the Plaintiff counsel is 16 years at the bar, the work required to prepare for the motion included steps taken which might have been resourced at a more reasonable hourly rate.

[32] In the circumstances the fair and just costs of the motion are fixed in the amount of $5,000, inclusive of fees, disbursements and taxes.

[33] Defendant to pay costs to Plaintiff within 30 days of motion date.

[34] Draft order as amended by me, signed and to issue.

McSweeney J. Date: May 23, 2023