Court File and Parties

COURT FILE NO.: CV-22-684191 MOTION HEARD: 20230803 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zona Mc Calla, Plaintiff AND: York Condominium Corporation No. 46, GPM Property Management Inc. and V&N GTA Landscaping Inc., Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Stanley Razenberg, counsel for the moving party plaintiff Fraser Chorley, counsel for the responding party defendant V&N GTA Landscaping Inc.

HEARD: 3 August 2023

Reasons for Decision

[1] This motion arises from the plaintiff’s examination for discovery of the defendant V&N GTA Landscaping Inc. (“GTA”) and GTA’s unsuccessful attempt to examine the plaintiff for discovery. There are three issues before me. The plaintiff did not move on any refusals.

Issue 1 – Production of information concerning other GTA employees

[2] GTA’s deponent indicated on his examination for discovery that he believed he had 6-7 employees working with him and they would all start their route at the property where the plaintiff allegedly slipped and fell. He has since corrected that answer and confirmed that there were only two other employees and GTA has provided the names and phone numbers for those two.

[3] The plaintiff wishes to know the basis for this change of answer and also seeks the last known addresses for the two employees. GTA has agreed to advise of the basis for the change in answer and also agreed to check its records and provide a last known address for each of the two employees, if there is one in its records.

Issue 2 – Policy of Insurance

[4] GTA has agreed to provide and the plaintiff is now content to receive the declaration page of the policy.

Issue 3 – Setting aside the certificate of non-attendance obtained in respect to the plaintiff

[5] The parties agreed that the defendants would be examined for discovery on Friday 12 May 2023 (or May 11 and 12) and the plaintiff would be examined on Wednesday 17 May 2023. The plaintiff refused to attend her discovery as she was of the view that GTA’s answer concerning surveillance was insufficient. GTA was asked on discovery whether it had surveillance of the plaintiff. Its counsel advised that he was unaware of any surveillance. Plaintiff’s counsel sought confirmation that no surveillance existed or had been commissioned and indicated that his client would not attend her scheduled discovery unless that information was provided by end of day May 12 (the defendant’s examination having concluded at 1:30 or so). He did so on the basis that the plaintiff would be prejudiced without that information and on the basis that he was entitled to complete his discovery of GTA, including receipt of all answers to undertakings and refusals before his client was examined. He did agree that he would not stand on that latter position, provided GTA answered the question on surveillance.

[6] GTA did not provide the requested answer on surveillance before May 17. Both parties attended virtually at the examiner’s office to put their positions on the record and GTA obtained a certificate of non-attendance.

[7] On the first ground, there is no evidence before me that the plaintiff would be prejudiced if she were required to answer questions about her own activities without knowing whether she had been under surveillance.

[8] On the second issue, without deciding whether a party is entitled to every answer to every undertaking and refusal and every answer to every follow up question before it may commence its own discovery of the other side, I find that was certainly not the case here where the parties had agreed on almost-consecutive days of discovery for all parties. Had that surveillance or any other issue been so critical that it had to be answered before the plaintiff was produced, that could have been made a pre-condition of her attendance when the discovery schedule was arranged. Or, she could have attended and answered questions, other than those that might have been impacted by any potential surveillance.

[9] Based on the agreement reached by counsel on the order and timing of discoveries, I am not prepared to find that GTA’s right to examine the plaintiff had not crystallized and that the plaintiff was therefore not required to attend her discovery. The plaintiff’s motion to set aside the certificate of non-attendance is dismissed. The certificate is there as a record that the plaintiff did not attend the scheduled discovery. It remains open to the plaintiff to defend or explain that non-attendance, as she has done here, should GTA attempt to obtain any relief as a consequence of the non-attendance.

[10] GTA has since advised that it has not conducted any surveillance of the plaintiff. It has agreed to advise 48 hours before the plaintiff’s scheduled discovery if surveillance has been undertaken and, if it has, to provide a summary including the dates, locations and observations of the surveillance.

Costs

[11] Given the modest amount of costs in issue, I anticipate the parties will be able to agree on costs. If they remain unable to do so, they may advise me by 8 September 2023. As they advised there were offers to settle the motion, they may also file any necessary supplementary submissions to address the offers alone and then not to exceed two pages.

Associate Justice Jolley Date: 8 August 2023