COURT FILE NO.: CV-23-00701364

DATE: 2023-11-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SOON-YEAR LEE, JEE-YUN LEE and DAVID JEE-HO LEE, Applicants

AND:

CLUBLINK ENTERPRISES LIMITED and TEXTRON SYSTEMS CANADA INC., Respondents

BEFORE: Justice A.P. Ramsay

COUNSEL: Michael Krylov, for the Applicants

HEARD: November 10, 2023 In Writing

ENDORSEMENT

I. Nature of the Application

[1] The applicants Soon-Year Lee, Jee-Yun Lee and David Jee-Ho Lee commenced this application, relying on r. 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order requiring the York Regional Police to produce a complete unredacted copy of the entire police record in relation to its investigation into the death of a family member, Chung-Suk Lee.

II. Background

[2] Mr. Lee was apparently involved in an accident on July 11, 2022 at the DiamondBack Golf Club in Richmond Hill, and died.

[3] The Notice of Application indicates the grounds for the application as follows, among other things:

(i) The York Regional Police Service investigated this incident and as a result they have information and documentation in their possession relating to this action.

(ii) There are witnesses to the accident that have pertinent information relevant to the cause of death, as well as statements relating to their eyewitness testimony.

(iii) It is only when the parties have full disclosure of all relevant records and information that the Court will be able to adjudicate regarding the parties to the action with regards to negligence and liability.

(iv) Accordingly, the Applicant seeks production of non-party documents and disclosure by the York Regional Police.

[4] The application is supported by an affidavit from Michael Krylov, a lawyer with the law firm of Krylov Lam & Company LLP, lawyers for the applicants. Mr. Krylov deposes that the applicants are the wife, daughter and son of Mr. Lee and are advancing Family Law Act claims. I assume, by this, that these family members are advancing claims under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, which permits certain family members to sue for damages if a person is injured or killed by the fault or neglect of another person. There is no affidavit evidence from any of the applicants.

[5] Mr. Krylov deposes that on December 19, 2022, his firm received a copy of the General Occurrence Information from the York Regional Police which identified witnesses who have information relevant to Mr. Lee’s cause of death, but their names were redacted. He goes on to state:

I verily believe that it is critical to the case of the Applicants that complete disclosure be provided, including all information and documentation relevant to the accident from the York Regional Police, including but not limited to the names and addresses of any witnesses or potential witnesses, any additional parties involved to the accident, any statements the witnesses have provided, any statements from the parties involved, any office notes, any photographs or videos of the accident scene or involved vehicles, and accident reconstruction, test results, notes and any other documents of any nature or type they might possess.

[6] I am satisfied, after reviewing the materials, that the application must fail, for the reasons below.

III. Analysis

[7] The crux of the application is the production of certain documents and information in the possession of a non-party, the York Regional Police. However, the York Regional Police is not a respondent party in the application, though the relief sought is only against them.

[8] An application is an originating process. Subrule 14.05 of the Rules of Civil Procedure sets out the circumstances under which an application may be commenced. The applicant commenced this application under rule 30.10 for production from non-parties. Subrule 14.05(3) provides that a proceeding may be brought by application where the rules authorize the commencement of a proceeding by application, or where the relief claimed is in one of the enumerated reliefs identified in r. 14.05(3)(a) to (h) of the Rules of Civil Procedure.

[9] Rule 30.10 of the Rules of Civil Procedure does not authorize the commencement of an application to obtain productions from a non-party, but rather contemplates a “motion” being brought for such purpose. The provision reads:

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[10] Rule 1.03 (1) of the Rules of Civil Procedure defines an originating process as a document that commences a proceeding under the rules, and includes a statement of claim, a notice of action, and notice of application.

[11] The applicants rely on rr. 1.04, 1.05, 2.01, 3.02, 30.10, 37 and 57 of the Rules of Civil Procedure in their Notice of Application, but none of them are available to the applicants to commence this proceeding. The applicants also rely on the Courts of Justice Act in their Notice of Application, but no provision is specified.

[12] The Notice of Application refers to the proceeding as an action. It is not. The proceeding is an application. Rule 1.03 of the Rules of Civil Procedure indicates that an “originating process” does not include a motion or intended motion. I infer from the materials before me that there is already an action commenced for damages and the applicants are advancing claims pursuant to the provision of the death of their family member under the Family Law Act. Interlocutory motions for productions from the police are routinely brought in personal injury actions. This is not a motion. I note that the applicants have also not set out in their materials how they satisfy the test under r. 301.10 to permit the court to order productions from a non-party.

[13] Rule 38.09 (1) of the Rules of Civil Procedure requires that a factum must be filed. The requirement is mandatory. None has been provided. There is no authority before me to indicate on what basis the court could order disclosure of documents with the personal information of the witnesses.

A.P. Ramsay J.

Date: November 10, 2023