Court File and Parties
COURT FILE NO.: CV-20-00638649-0000 DATE: 2023-10-17 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HOSSEIN BAKHSHI, Respondent/Plaintiff – and – TRUE NORTH CLIMBING INC., Appellant/Defendant
BEFORE: Justice E.M. Morgan
COUNSEL: Peter Rollo, for the Appellant/Defendant David Green, for the Respondent/Plaintiff
HEARD: October 16, 2023
REFUSALS APPEAL
[1] The action involves an injury which the Plaintiff alleges that he sustained at a rock climbing facility.
[2] Discovery of the representative of the Appellant/Defendant was held on April 7, 2021. The Appellant, through counsel, refused to answer some 37 questions. By Order dated October 18, 2022, Associate Justice Brott required all 37 to be answered. The Appellant here appeals 16 of those refusals.
[3] The Associate Justice’s endorsement was handwritten and addressed two groupings of refusals. Beyond that, it contained a blanket ruling for the remainder to be answered. Appellant’s counsel acknowledges that expansive reasons for a decision are not necessarily required in a voluminous, non-complex motion involving dozens of refusals; but they submit that an endorsement of this type creates a risk that improper questions may slip through the cracks.
[4] Respondent’s counsel submits that the problem is that counsel had by agreement grouped the refusals together at the motion before the Associate Justice. In effect, they consented to the generalized type of reasons that were contained in the Associate Justice’s endorsement. It is Respondent’s counsel’s view that this kind of grouping is not only a standard practice in refusals motions, it is necessary for the sake of judicial economy. If refusals have to be answered one at a time instead of in groups by theme, each motion will take weeks instead of hours.
[5] As Appellant’s counsel says, the problem with grouping the refusals is that it runs the risk of an endorsement that “everything” in a given category be answered. While that is true, I take Respondent’s counsel’s point that an Associate Justice should not be compelled to look behind the categories in which counsel have agreed to address the questions.
[6] Having said all of that, it appears to me that the categories proposed by both counsel at first instance were not particularly well thought out. They were more factual than thematic, which does not help the Associate Justice the way categorization of the refusals is meant to do. The day before the Associate Justice’s hearing, counsel sent her an email proposing that the first two refusals pertaining to who was present at the time of the accident be specifically answered, and that the balance be grouped into two categories: waiver and manual – i.e. matters pertaining to the contractual waiver of liability, and matters pertaining to the users’ manual for the equipment on which the Plaintiff says he was injured.
[7] The first two questions are not under appeal. The other two categories of questions are before me on appeal. I find it hard to understand how the Associate Justice found this division helpful. It did not allow her to make any principled analysis of the refusals and facilitated her overlooking a number of relatively important issues.
[8] Appellant’s counsel submits that the Associate Justice erred in law by failing to provide an explanation for the decision that is sufficiently intelligible to permit appellate review: Buik v. Canasia Power Corp., 2021 ONSC 8545, at paras 27, 33. It is settled law that errors of law are to be reviewed on a standard of correctness, errors of fact on a standard of palpable and overriding error, and errors of mixed fact and law on a spectrum between those two: Bee Vectoring Technology Inc. v. Chitiz Pathak LLP, 2019 ONSC 1714, at paras 23, 25.
[9] It is worth noting that neither counsel who appeared before me were counsel at the motion below. They both did a valiant job presenting their case, but neither of them was certain of how the matter was argued below. On one hand, the categories are organized factually rather than in accordance with the legal issues they present; on the other hand, the issues are for the most part obvious as soon as one reads the questions.
[10] With this background, the best I could do at the hearing was to go over the questions with counsel one at a time. For efficiency sake, I will address them in three groups, the way that Appellant’s counsel has broken them down: a) hypothetical questions; b) questions about summaries of witness statements; and c) question involving interpretation of the waiver of liability clause.
[11] The hypothetical question group contains five questions. I would analyze them as follows:
Question 1: To advise if the Defendant agrees that if an employee had been present in the auto belay area at the material time they would have been able to make sure that the Plaintiff was clipped into the auto belay device, before he went up.
Analysis: Appellant’s counsel says this raises a hypothetical question due to the phrase “would have”. Respondent’s counsel, citing Estate of Maryam Asharzadeh v. Amin, 2019 ONSC 1024, at para 20, says this asks about the real possibility of the safety measure being addressed, and that the phrase “would have” should be read as “could have”. I read this as closer to the Respondent’s interpretation; the question does not ask subjectively what the employ would do, it asks whether clipping the Plaintiff into the device was objectively feasible. It must be answered in this way.
Question 2: To advise if the Defendant agrees that if an employee of the Defendant told a customer just to sign and initial the Release without reading that it would be improper.
Analysis: Although Appellant’s counsel characterizes this as a hypothetical question, it is not. The problem is that is asks the deponent for a legal analysis. It need not be answered.
Question 3: To advise if the Defendant agrees that it is very important for a party attempting to rely on a release, makes sure that the person signing the release understand what they are signing.
Analysis: Appellant’s counsel objects to this question that it requires the deponent to determine the standard of care. Respondent’s counsel says that it is probative of the standard of care but does not definitively answer it. In my view it is irrelevant. Either it is important to ensure that a person understands a release or it is not important; whether the desk clerk at a business thinks so is not the question. It need not be answered.
Question 4: To advise if the Defendant agrees that before you sign a waiver or a release, you’d want to understand what you are signing.
Analysis: This question specifically poses a hypothetical situation – i.e. for the deponent to put himself in the Respondent’s shoes. It need not be answered.
Question 5: To advise if the Defendant agrees that it is essential that a person who is being asked to waive a right understands what they are being asked to do.
Analysis: This is the same question as #3 above, and need not be answered for the same reason.
[12] The witness statements group of group contains two questions. I would analyze them as follows:
Question 6: With regards to the Statement of James Thompson, to provide all of this witness’ information contained in the statement. If there is any further facts, information, knowledge or beliefs on the matters in issue contained in the statement of James Thompson that has not been disclosed, to provide a summary of same to the Plaintiff.
Analysis: Appellant’s counsel says there is no more relevant information to give in respect of this witness statement. Respondent’s counsel explains that the two witness statement questions and their answers may have been miscommunications more than refusals. That is, the deponent said that he has told all that he knows, and his counsel ‘refused’ to answer any more. Appellant’s counsel confirmed at the hearing that the witness statements convey all of the information that his client has, and that if any further information comes to light he understands that he is under an ongoing obligation to disclose it. The question therefore has now been answered.
Question 7: To provide all of the information that the witness, Samar Ahmadi Moduli, provided in her statement.
Analysis: Same as question 6 above.
[13] The contract interpretation group of questions contains nine questions. I would analyze them as follows:
Question 8: To inquire with Mr. Gross and advise why the Waiver was drafted.
Analysis: See paragraph 14 below.
Question 9: To inquire with Mr. Gross and advise if he drafted the Waiver with the purpose or intent of attempting to insulate himself from the negligence of his employees.
Analysis: See paragraph 14 below.
Question 10: With regards to the Waiver, to advise on why was Mr. Gross attempting to shield his company from its own negligence.
Analysis: This question is inflammatory and unfair. It contains a presumption which the deponent is not compelled to adopt. It need not be answered.
Question 11: To inquire with Mr. Gross and advise if the intent of the Waiver was to shield the company from its own negligence.
Analysis: See paragraph 14 below.
Question 12: To advise if the Defendant agrees that the intention of the Release is to try and avoid legal liability for negligence.
Analysis: See paragraph 14 below.
Question 13: To advise why it is not made clear in the Release to its readers that the intention of the Release is to try and avoid legal liability for negligence.
Analysis: This question is inflammatory and unfair. It contains a presumption which the deponent is not compelled to adopt. It need not be answered.
Question 14: With regards to the waiver term and “negligence on the part of TNC or its staff”, to advise on what the intent of inserting those words in the waiver and what the company intended them to mean.
Analysis: See paragraph 14 below.
Question 15: To advise if the Defendant knows, on behalf of the Defendant company, what the term ‘I agree to hold harmless and indemnity the Releases from any and all liability for any… or any personal injury to any third party resulting from any participation, activities at, or use of these facilities’ means or is intended to mean.
Analysis: See paragraph 14 below.
Question 16: To advise on why the following is in the Release and to advise why the Plaintiff and other customers were asked to sign it: ‘I agree to hold harmless and indemnify the Releases from any and all liability for any…or any personal injury to any third party resulting from any participation, activities at, or use of these facilities’.
Analysis: See paragraph 14 below.
[14] Questions 8-9, 11-12, and 14-16 are, in essence, all the same question. They ask for the deponent’s (or the deponent’s employer) subjective understanding of the waiver of liability each customer is asked to sign upon entering the Respondent’s rock climbing gym. The waiver goes on for six pages in single-spaced paragraphs and is written in the standard legalese. The first sentence, as printed on the form, is eleven lines long:
In consideration of TNC permitting my use of its Facilities, I AGREE TO WAIVE ANY AND ALL CLAIMS that I have or may have in the future against TNC, and its shareholders, directors, officers, employees, agents, representatives, independent contractors, subcontractors, sponsors, successors, representatives and assigns (collectively, the ‘Releasees’), and to release the Releasees from any and all liability for any loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from my participation in activities at or use of the Facilities due to any cause whatsoever, including negligence, breach of contract, mistakes or errors in judgment, or from injuries resulting from mechanical breakdown or failure of equipment, or poor design or placement of any equipment, or breach of any statutory or other duty of care on the part of the Releasees, and also including the failure on the part of the Releasees to safeguard or protect me from the risks mentioned above.
[15] The waiver is obviously lawyer written. To ask the deponent, a lay person, to explain its genesis, origin, meaning, and purpose, is akin to asking a lawyer to explain the internal engineering, design rationale, operating parameters, and mechanical processes of Air Canada’s latest Boeing 737 Max engine. If I am the typical lawyer, my understanding would be so superficial, and my articulation of the engine’s workings so sparse and uninformed, that my answers would not help shed light on the subject. And yet, if I were an airline employee in, say, the vacation marketing department, and were being examined under oath on the subject, I could possibly be goaded into saying something foolish about the engineering or mechanics of the thing.
[16] With that in mind, I asked Respondent’s counsel what he hoped to get out of the answers he would receive in asking a gym owner or manager about the waiver clause. He responded that the question is relevant because it is a contract between two parties. And when I asked him what he expected the deponent to say when asked things like what does “hold harmless” mean, or whether the intent was to shield the company from liability, he responded that the questioner hoped to extract some admissions.
[17] I appreciate Respondent’s counsel’s candour. In discussing the issue with me, he conceded, as would any thoughtful person, that the deponent’s answer is not likely to be well informed, if informed at all. I therefore take it that what he means by “admissions” are what I have called foolish statements.
[18] If I were the deponent, I would likely be able to come with an answer to the question about the purpose of the waiver in a way that is acceptable and would not be misunderstood or get me into trouble. But I went to law school and have over three decades at the bar. The deponent’s challenge will not be to provide a truthful and informative answer; that is not what the questioner wants and is not what the deponent has to offer. Rather, his challenge will be to avoid couching his admittedly uninformed answer in some combination of words that falls into a trap.
[19] I do not blame the lawyer for asking these questions or the Associate Justice for requiring them to be answered. While contract interpretation is an exercise in ascertaining the objective intentions of the parties, the Supreme Court has indicated that the circumstances leading up to the formation of the contract are relevant enough to also be considered. Taken in the abstract, such evidence is said to shed light on the mutual objective intentions of the parties as expressed in the words of the contract: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, at paras 56-59.
[20] The test of what questions need be answered on discovery is those that are “relevant to any matter in issue”: Keats v. Peloso Fuels Ltd., 2010 ONSC 6865, at para. 18. Once a matter is determined to be relevant, there is a residual discretion on the decision-maker as to whether it is necessary to provide an answer. Rule 29.2.03 provides a list of factors to be considered in exercising that discretion: the time, expense, undue prejudice, delay, and availability of the answers may all be taken into account: Berry v. Scotia Capital Inc., 2014 ONSC 5244, at para 12.
[21] The series of contract interpretation questions, although unhelpful in the particular context, were within the broad scope of relevance as described in Sattva. Furthermore, the Associate Justice was properly within the scope of her discretion in requiring the answers. My critique is of the discovery process itself, not of the particular implementation of it here.
[22] It is no secret that excessive discovery adds time and expense to civil litigation, and that civil litigation is a laborious process that already suffers from being too lengthy and expensive. Canada’s leading civil procedure scholars have stressed that “the system is too complex, too slow, and too costly… [and that] the access to justice literature [shows this to] be a central area of concern for current justice reform initiatives”: Trevor Farrow, “What Is Access To Justice?”, (2014) 51 Osg. Hall L.J. 957, at 978.
[23] Requiring this final series of unhelpful questions to be answered was neither an error of law nor a misuse of discretion. The system, and the Rules, allow for such things. That is an unfortunate aspect of civil litigation. Lawyers can have a go at each other, and at each other’s clients, in a discovery joust which is unlikely to improve on the course of justice or to even impact on an eventual trial judgment.
[24] Accordingly, questions 8-9, 11-12, and 14-16 are to be answered by the Appellant. But they are to be answered in writing, with the answers conveyed in a letter from Appellant’s counsel to Respondent’s counsel and without a follow-up oral examination. That will provide the Respondent with answers to the questions without opening a trap door for a non-legally trained deponent to fall through. The questions are artificial constructs in the guise of truth seeking, and the responses will likely be equally artificial constructs in the guise of information giving. But the refusals will thereby be answered.
Disposition
[25] Question 1 is to be answered as described in paragraph 11 above. Questions 8-9, 11-12, and 14-16 are to be answered as described in paragraph 24 above.
[26] The balance of the questions in issue need not be answered.
[27] The results of this motion are mixed. There will be no costs awarded for or against either party.
Date: October 17, 2023 Morgan J.