Court File and Parties

COURT FILE NO.: CV-18-136762

MOTION HEARD: 20230823

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Daniel Corridore, Plaintiff

AND:

Tajinder P.K. Melde, Charanjit S. Melde, Andrew Joseph Chiarmida, Leonarda Chiarmida and Honda Finance Inc., Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Nadheera Panamaldeniya, counsel for the moving party Melde defendants Natasha Anand, counsel for the responding party plaintiff Nathan Tischler, counsel for the observing Chiarmida defendants

HEARD: 23 August 2023

REASONS FOR DECISION

[1] In their motion booked for 15 minutes for their submissions, the Melde defendants (“these defendants”) sought an order dismissing this action, an order for a further and better affidavit of documents, including a list of documents some of which were appended to an order the evening before the motion, and an order for answers to refusals.

Motion to dismiss for delay

[2] There is no basis for such an order. The action has proceeded in the normal course. Discoveries have been completed, undertakings answered and mediation held. The action was in fact set down for trial on 8 June 2023, before these defendants served this motion record in July. These defendants did not advise the court in their motion materials that the action had already been set down. To the contrary, in his affidavit sworn in support of this motion on 18 July 2023, defendants’ counsel swore: “This action has not yet been set down for trial.”

[3] A request to have the court dismiss an action should be sought sparingly. It is not a throwaway request to be included in the normal course of a disagreement over productions. That portion of the motion is dismissed.

Further and better affidavit of documents

[4] The plaintiff delivered an unsworn affidavit of documents and all the accompanying productions to the defendants on 5 April 2019. The productions were sufficient to permit the defendants to examine him for discovery on 24 May 2019.

[5] The plaintiff then delivered an updated and sworn affidavit of documents on 7 July 2023. Despite receiving this updated sworn affidavit of documents, these defendants served their motion record the next day, arguing that the affidavit is again deficient as it does not contain the records that they seek on this motion. Not only did they seek a further and better affidavit of documents, they also sought to have the action dismissed on the basis that no affidavit had been delivered.

[6] Turning to the specific documents, these defendants did not ask the plaintiff for his employment file when they examined him for discovery. Instead, they seek the documents by way of this further and better affidavit of documents motion. Plaintiff’s counsel advised that, although the file had not been requested at discoveries, they would make the request of the employer and they did so. They wrote the plaintiff’s former employer, Canada Post, twice, once on 19 November 2021 and again on 12 July 2022. The letter requested the plaintiff’s complete employment file including “paystubs, ROE, pay reviews, absence from work, etc.” and included a signed authorization from the plaintiff. These defendants argue that the first letter sent to 333 Bay Street, was an address found on google for Canada Post and therefore was insufficient, as it should have been addressed to some specific address for Human Resources. I note that the letter itself does indicate “Attention: Human Resources”. Plaintiff’s counsel sent a further letter by fax to a Canada Post address in Ottawa. Canada Post has not produced the plaintiff’s file. These defendants argue that the plaintiff should do something more to obtain these documents. He has written two letters. If these defendants wish the productions, it is now open to them to move under rule 30.10.

[7] These defendants seek the complete collateral benefits file. The plaintiff has produced a number of documents in answer to this undertaking. These defendants argue that they were not provided with the collateral benefits booklet. The plaintiff wrote to Canada Life on 21 February 2023 requesting their file and advised these defendants on 27 February 2023 that he had done so. He produced the information provided by the insurer in June 2023. Simply to move this matter forward, I will direct the plaintiff to write specifically for the collateral benefits booklet. Otherwise, I find their efforts sufficient. If the booklet is not forthcoming, these defendants can seek a rule 30.10 order.

[8] These defendants seek the records of the family doctor since October 2021 and the updated clinical notes and records of Dr. Meglis. The plaintiff advises that these are one and the same. The plaintiff has requested the records twice and provided copies of the request letters to these defendants. They say the plaintiff’s efforts are insufficient. I disagree. The plaintiff has made reasonable efforts to obtain the records.

[9] These defendants seek the updated clinical notes and records of Dr. Mailis. The plaintiff provided records in June 2022 and in November 2022 and has made the request again. This is sufficient.

[10] If these defendants intend to move under rule 30.10 for documents from Dr. Mailis or any other non-party, they shall advise the plaintiff, who will provide copies of the request letters he sent so they can be used in support of the motion.

[11] The evening before the motion, these defendants added to their proposed order a provision that the plaintiff provide notes and records from York Central Hospital. Defendants’ counsel advised me that he noticed this reference in the OHIP records they had just received, so was of the view that the request should be added. First, it seems that these records have already been provided as acknowledged by these defendants at Caselines A46, undertaking 20, which is noted as satisfied. Second, the appropriate way to deal with this is to just ask the other side for productions rather than jump directly to court intervention.

[12] The draft order was also amended to add the clinical notes and records from Trinity Rehab. Counsel for the plaintiff advised that she would review this and respond. This is an appropriate response, rather than a court order at this stage as these defendants gave no notice of this request.

[13] I note in conclusion on this point that it is not a good use of the parties’ or the court’s resources to seek a further and better affidavit of documents every time a new document surfaces. An updated affidavit was just provided before this motion was brought. It seems this tack was chosen because some of these documents sought were not requested on discoveries and could only be obtained on a rule 30.06 motion. There is no indication that the plaintiff would not comply with rule 30.07 and produce an updated affidavit of documents if further documents came to light. The tone and number of the emails has resulted in an unnecessarily acrimonious relationship between counsel which does nothing to advance their clients’ interests and should not continue.

Refusals

[14] These defendants sought an order that the plaintiff produce vacation photos that depicted him in them. While maintaining that the request was not relevant, the plaintiff advised that he had no such photos. That is sufficiently responsive to this question.

[15] These defendants sought an order that the plaintiff advise which physicians he attended in June 2013 when he had a motor vehicle accident and produce the OHIP summary for June 2013 to 31 August 2013 (as the summary has already been produced from 1 September 2013 onward, what is in issue is a three month period from ten years ago). The plaintiff has advised that he cannot recall the name of the doctor he saw. Additionally, he has provided what his insurer has advised is the complete AB file relating to that motor vehicle accident (while resulted in a payout of $1,390). The insurer has confirmed that there were no medical records. I am not satisfied that an OHIP summary for three months in these circumstances is proportionate. It need not be produced.

Costs

[16] I agree with the plaintiff that the motion was not necessary. The main relief sought was inappropriate. The refusals request was dismissed as was the bulk of the further and better affidavit of documents request, other than a request that the plaintiff specifically mention the collateral benefits booklet in one further request to the insurer. Condescending emailing back and forth has only raised the temperature on this file. If counsel truly believes an important document has not been produced, there were ways to address that – such as telephoning each other – without the need for the delay and expense of a motion.

[17] Given the plaintiff succeeded on the motion, these defendants shall pay him $1,500 as a contribution to his partial indemnity costs, payable within 30 days.

Associate Justice Jolley

Date: 24 August 2023