Court File and Parties

COURT FILE NO.: CV-20-00634487-0000 DATE: 20230815

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Malaika Khoja Rupani et al v. Stephen Willett et al

BEFORE: Associate Justice Rappos

COUNSEL: Nolan Cattell, for the Defendants Emily Kim, for the Plaintiffs

HEARD: June 21, 2023 (via videoconference)

REASONS FOR DECISION

OVERVIEW

[1] The Defendants bring a motion under Rule 31.10 of the Rules of Civil Procedure seeking leave of the Court to examine for discovery two non-parties.

[2] The Plaintiff Malaika Rupani alleges in her claim that the injuries she suffered in connection with a motor vehicle accident has resulted in, among other things, a loss of income, a loss of earning capacity, and a loss of competitive advantage in the marketplace.

[3] The Plaintiff was examined for discovery over a two-day period and was asked a number of questions about her employment history before and after the accident.

[4] The Defendants argue that they were unable to obtain necessary information from the Plaintiff during her examinations for discovery regarding her job performance and workplace capabilities, both immediately before and immediately following the accident. As a result, they seek leave of the Court to examine for discovery the Plaintiff’s supervisor and a human resources representative with respect to these issues.

[5] The Plaintiff argues that there is no basis for the Court to grant the Defendants’ motion, since, among other things, the Defendants have been provided with sufficient information regarding the Plaintiff’s employment and have failed to meet the test set out in rule 31.10.

[6] For the reasons that follow, the Defendants’ motion is dismissed.

FACTS

[7] The action is with respect to a motor vehicle accident that occurred on July 30, 2018. A statement of claim was issued on January 15, 2020 on behalf of Malaika Khoja Rupani and Ashraf Kherani, who is Ms. Rupani’s mother and seeks relief under the Family Law Act. [1]

[8] In the claim, Ms. Rupani alleges that she sustained severe internal and external injuries as a result of the negligence of the Defendants in connection with the accident, which have caused Ms. Rupani to incur, and to continue to incur, “a loss of income, a loss of earning capacity, [and] a loss of competitive advantage.”

[9] Ms. Rupani was an employee of The Master Group Inc. (“Master Group”) at the time of the accident.

[10] In their statement of defence dated March 6, 2020, the Defendants deny that Ms. Rupani sustained the injuries, losses and damages as alleged in the claim. The Defendants also specifically deny that Ms. Rupani has sustained a loss of earning capacity, loss of competitive advantage in the employment field, loss of income, or loss of income earning potential as a result of injuries allegedly sustained in the accident.

[11] Examinations for discovery of Ms. Rupani took place on September 29, 2020 and May 6, 2021. Both parties have provided excerpts from the two examinations for discovery in their materials. The Defendants asked Ms. Rupani a total of 1268 questions over the two days of examinations.

[12] The Plaintiff produced Ms. Rupani’s employment file to the Defendants on May 28, 2021, approximately three weeks after Ms. Rupani was last examined for discovery.

[13] The Defendants argue that, during the examinations, Ms. Rupani was unclear about several key details regarding her employment at Master Group, including how long she remained employed at Master Group following the accident, and for what reason she was terminated.

[14] The Defendants point to instances during the examination where Ms. Rupani was unable to answer questions about her employment at Master Group.

[15] In response to a question about her duties as a Junior Credit Agent, Ms. Rupani stated “I don’t remember. My supervisor knows better than me.” In response to a question about her ability to perform her job in the months following the accident, Ms. Rupani stated that she did not remember.

[16] In response to questions about her leaving Master Group, Ms. Rupani stated that she never left the job and did not know why she was no longer working there. Ms. Rupani also stated that she was sent home by HR after they had discussions with her doctor. Ms. Rupani was unable to provide details in response to the period right before she stopped working at Master Group.

[17] As noted above, the record does not contain the complete transcripts from Ms. Rupani’s examinations for discovery. Counsel to the parties confirmed during the hearing that the only undertakings asked of Ms. Rupani regarding Master Group was for Ms. Rupani to provide contact information and names for individuals at Master Group and to produce her employment file. The excerpts from the transcripts do not contain any requests made of Ms. Rupani to inquire of individuals at Master Group concerning questions she was unable to answer during the examination.

[18] Ms. Rupani’s employment file from Master Group was appended as exhibits in the Defendants’ motion record. The documents in the file set out the following:

(a) Ms. Rupani started working on a full-time basis on June 11, 2018 as a Junior Credit Agent;

(b) according to a letter dated June 4, 2019 written by Lia Motevali, a senior human resources partner with Master Group, to counsel to the Plaintiffs, Ms. Rupani had been on a medical leave since November 27, 2018;

(c) according to an email from a different Master Group human resources advisor, Ms. Rupani’s last day of work was February 4, 2019;

(d) a performance review dated September 7, 2018; and

(e) correspondence in February 2019 regarding Ms. Rupani being sent home from work, discussions between Desjardins Insurance and Ms. Rupani’s family doctor, and a doctor’s note regarding Ms. Rupani’s ability to return to work.

[19] Mediation took place on October 4, 2021 following the completion of examinations for discovery.

[20] In terms of the status of the litigation, the Plaintiff has provided copies of e-mails exchanged by counsel from March 22 to October 20, 2022, wherein counsel to the Plaintiff repeatedly requested that the parties complete a trial certification form so that the matter could be set down for trial.

[21] In a letter dated April 22, 2022, counsel to the Defendants stated that the case was not ready for trial, and they anticipated bringing a motion to examine Ms. Rupani’s direct supervisor, Sue Dajia.

[22] Counsel to the Plaintiff attempted to schedule an attendance in To Be Spoken to Court in order to set the matter down for trial. In an e-mail dated October 20, 2020, a Trial Coordinator confirmed that pre-trial and trial dates would not be scheduled since the Defendants had scheduled a motion for discoveries.

[23] The motion was originally scheduled for March 9, 2023. On March 6, 2023, following the exchange of motion records and facta, counsel to the Defendants informed counsel to the Plaintiff via email that the motion would not be proceeding, as there was the possibility that they would add an additional examinee to the relief they would be requesting in their motion.

ANALYSIS

Tests under Rule 31.10

[24] Rule 31.10(1) and (2) of the Rules of Civil Procedure state:

Discovery of Non-Parties with Leave

General

31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

Test for Granting Leave

(2) An order under subrule (1) shall not be made unless the court is satisfied that,

(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not,

(i) unduly delay the commencement of the trial of the action,

(ii) entail unreasonable expense for other parties, or

(iii) result in unfairness to the person the moving party seeks to examine.

[25] As noted by Justice D.M. Brown (as he then was) in Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P, 2014 ONSC 2699 (“Manga”) at para. 2, the test under rule 31.10 has two basic components: (a) there must be a reason to believe that a person has information relevant to a material issue in the action under rule 31.10(1); and (b) the conjunctive factors in rule 31.10(2) must be met.

[26] The onus is on the Defendants to satisfy the Court that both components of the test have been met. If the test has been met, “the Court has a discretion as to whether discovery of a non-party should be permitted. If it is in the interests of justice that an examination be ordered pursuant to the rule, the Court should not hesitate to make such an order.” (McDermid Paper v. McDermid et al, 2010 ONSC 5404, at para. 25).

Relevance: Rule 31.10(1)

[27] With respect to the requirement that “there is reason to believe that a person has information relevant to a material issue in the action”, the Plaintiff’s claim seeks damages due to “a loss of income, a loss of earning capacity, [and] a loss of competitive advantage.”

[28] The impact of the motor vehicle accident on Ms. Rupani’s ability to work is at issue in the action. Ms. Dajia and Ms. Motevali both would have information regarding Ms. Rupani’s work performance following the accident, as well as details concerning the eventual cessation of her employment at Master Group.

[29] In her materials, the Plaintiff does not contest that Ms. Dajia or Ms. Motevali would have information relevant to a material issue in the action.

[30] As a result, I am of the view that there is reason to believe that Ms. Dajia and Ms. Motevali both have information relevant to a material issue in the action. As a result, the Defendants have satisfied the relevancy test under rule 31.10(1).

Factors under Rule 31.10(2)

[31] The first factor under rule 31.10(2) is whether the Defendants have been unable to obtain the information sought from other persons whom they were entitled to examine for discovery. In this case, that person would be Ms. Rupani.

[32] In Famous Players Development Corp. v. Central Capital Corp., 6 O.R. (3d) 765, the Divisional Court held that, under rule 31.10(2)(a), “there must be a refusal, actual or constructive, to obtain the information before the applicant will be able to meet the onus.”

[33] The Defendants rely on Manga and Ghanim v. Ali, 2018 ONSC 407 (“Ghanim”) in support of their position that Ms. Rupani constructively refused to obtain information during her examinations for discovery.

[34] In my view, both of these decisions are distinguishable from the case at bar.

[35] In Ghanim, the plaintiff was alleged to have suffered a traumatic brain injury which left him with no memory of his life before the accident or certain post-accident events. During his examination for discovery, the plaintiff repeatedly indicated that he did not know the answer to questions and suggested that counsel should “ask my wife.”

[36] Master Champagne (as she then was) held that the plaintiff was unable to “answer, in any detail, the volume of questions relating to his pre-accident life and to his post-accident fall” (para. 20). Master Champagne went on to note that the plaintiff was “unable to give any direct evidence or information about his life before the accident” and “was unable to answer anything in but a superficial way, based on what others have told him and devoid of any detail.”

[37] Master Champagne concluded that these types of answers were constructive refusals. However, Master Champagne made the point of noting the fact of the case were a “particular and unique set of circumstances” and that “I stress that this decision turns on the volume of information that would be the subject of questions and undertakings given the plaintiff’s memory impairment” (para. 22).

[38] In Manga, the party that was being examined for discovery was asked about the state of knowledge of a third party, in which he responded, “I can’t speak for [the third party] so you would probably have to ask them.”

[39] Justice Brown held that this response constituted a constructive refusal, as it “did not evidence a willingness by the person whom the moving party was entitled to examine for discovery to secure information from [the third party] for transmission to the plaintiffs” (paras. 10-11).

[40] Based on my review of the materials, including the excerpts from the examinations for discovery, I do not believe that Ms. Rupani actually or constructively refused to obtain information from a third party during her examinations for discovery.

[41] Ms. Rupani answered the questions put to her to the best of her ability at the time. I do not believe that her inability to answer certain questions is in any way equivalent to the situation in Ghanim as described above.

[42] I note that counsel to the Defendants did not ask Ms. Rupani to undertake to inquire of Master Group employees to see whether they had additional information that could be provided in response to the questions that Ms. Rupani was unable to answer.

[43] Ms. Rupani has already satisfied an undertaking by producing her employment record from Master Group. There is nothing in the materials before me to suggest that Ms. Rupani is not willing to attempt to secure information from Master Group, as was the case in Manga.

[44] The Defendants are entitled to re-examine Ms. Rupani in connection with the produced employment record. Again, if Ms. Rupani is unable to provide answers to certain questions, she can undertake to obtain information from her former employer.

[45] As a result, in my view, the Defendants have failed to satisfy the first factor listed in section 31.10(2). As the test under the section is conjunctive and all factors must be satisfied, it is not necessary for me to consider the other factors to dismiss the motion.

DISPOSITION AND COSTS

[46] For the reasons set out above, the Defendants’ motion is hereby dismissed.

[47] As for costs, I strongly encourage the parties to consult with one another and come to an agreement on costs.

[48] In the event they are unable to do so, they may contact Assistant Trial Coordinator Kimi Sharma (kimi.sharma@ontario.ca) so that I may provide directions as to the delivery of written cost submissions.

Associate Justice Rappos DATE: August 15, 2023

Footnotes

[1] The materials indicate that in August 2022, counsel to the Plaintiffs requested that the Defendants consent to Ms. Kherani discontinuing her claim. It is not clear whether the discontinuance has occurred to date. This issue has no bearing on this motion.