COURT FILE NO .: CV-19-617403 DATE: 2024-05-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lorraine Blue v. Metro Ontario Inc.

BEFORE: Associate Justice G. Eckler

HEARD: Friday March 15th, 2024 by videoconference

COUNSEL: Adam Wilson for the plaintiff/moving party and responding party to cross-motion Brittany Landry student-at-law appearing for the defendant/responding party and moving party on the cross-motion

REASONS FOR DECISION

A. INTRODUCTION

[1] The plaintiff brings this motion requesting:

1. An Order compelling the defendant to provide answers to outstanding undertakings, questions taken under advisement and questions improperly refused at its examination for discovery held on January 11th, 2021 and its continued examination for discovery held on June 20th, 2023, within 30 days.
2. An Order that the defendant’s discovery representative attend for a further examination for discovery with respect to all answers provided to date and any answers to be provided in the future pursuant to the terms of any Order issued as a result of this motion.
3. An order striking out the jury notice delivered by the Defendant.
4. Costs of this motion.

[2] The defendant has brought a cross-motion for:

1. An Order dismissing the plaintiff’s action for failure to comply with the undertakings given at her examination for discovery held on June 20th, 2023;
2. In the alternative, an Order that the plaintiff answer the outstanding undertakings, refusals and questions taken under advisement within 30 days of the Order;
3. Costs of this motion.

[3] At the outset of the motion, the parties confirmed that with respect to the Order relating to the jury notice, the parties have agreed on consent that the jury notice shall be struck.

[4] The plaintiff also confirmed that the defendant has provided answers to all of the outstanding undertakings such that with respect to the plaintiff’s motion the only remaining issues relate to the refusals and costs.

[5] With respect to the cross-motion, the defendant confirmed that it is no longer seeking to dismiss the plaintiff’s claim for failure to answer undertakings. In this regard, the defendant confirmed that the plaintiff has now answered all but eight or nine undertakings and it was agreed that the plaintiff would answer any outstanding undertakings within 40 days of the date of the hearing of this motion.

[6] The only issues remaining to be decided with respect to the cross-motion relate to four refusals and costs.

[7] I declined to hear submissions on a further undertaking/refusal described in the defendant’s motion materials as undertaking No. 4. The plaintiff correctly points out that this undertaking No. 4 relates to a recent disagreement as to the scope of a question which was originally refused. The original question was to provide the pleadings relating to the lawsuit arising from the May 8th, 2018 accident. The plaintiff agreed to answer the question on February 16th, 2024. The defendant is now taking the position that this question cannot be considered answered until settlement particulars pertaining to a lawsuit arising from a May 8th, 2018 accident are also provided. The undertaking No.4 did not form part of the defendant’s original cross-motion materials and was added to the Form 37C only shortly prior to the motion being heard. I agree with the plaintiff’s submissions that this “undertaking No.4” did not form part of the defendant’s cross-motion and I therefore declined to hear submissions on this issue.

B. BACKGROUND

[8] The action arises as a result of a slip and fall accident that occurred on or about July 22nd, 2017, at the premises of the Metro supermarket located at 15 Ellesmere Road in Toronto (“the Premises”). It is alleged that the plaintiff, Lorraine Blue, (“the plaintiff”) was walking within the supermarket when she inadvertently slipped on liquid or food material, causing her to suffer numerous serious and lasting personal injuries.

[9] The plaintiff, commenced an action in Toronto on April 2nd, 2019, pursuant to the simplified procedure. The sole plaintiff is claiming general damages of $100,000, interest and costs as against the defendant Metro Ontario Inc. (“the defendant”)

[10] In the statement of claim, the plaintiff alleges that the defendant is the occupier of the Premises pursuant to the Occupiers’ Liability Act and as such had responsibility for and control over the condition of the Premises. The plaintiff alleges that the cause of her slip and fall is attributable to the negligence of the defendant and its employees. In particular, the plaintiff alleges at paragraph six of the statement of claim that the defendant’s negligence consists of the following:

a. It failed to keep the floor in proper condition and repair; b. It failed to take steps to notify the users of the subject premises that the floor was in a wet or dirty condition and accordingly was unsafe; c. It failed to take steps to temporarily cordon off the unsafe part of the floor until satisfactory maintenance and cleaning of the same could be conducted; d. It failed to take reasonable or any care to ensure that the plaintiff would be reasonably safe while walking on the premises. e. It permitted or allowed a substance of water to accumulate on the premises, thereby creating a danger and a trap to all persons using the said property. f. It permitted or allowed people to walk on the premises when it knew or ought to have known that it was unsafe and dangerous for all people using it, particularly, the said plaintiff. g. It employed incompetent servants or agents to remove or clean any and all substances from the premises or alternatively, failed to employ persons for that purpose. h. It failed to give the plaintiff reasonable or any notice or warning of the danger of walking on the premises. i. It failed to provide cleaning services to the premises. j. It failed to take reasonable steps to avoid the incident which could have been done by the use of measures reasonably available to it by posting warnings, or other indicators to warn of an unsafe condition that might exist. k. It failed to detect safety issues which presented hazards to persons at the premises.

[11] The defendant has admitted to being the occupier of the premises where the plaintiff’s fall occurred. However, the defendant denies that the plaintiff’s fall occurred as alleged and further denies that the plaintiff’s fall was caused by any negligence or breach of duty or breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O. 2 as amended.

[12] At the defendant’s examination for discovery held on January 11th, 2021, the defendant’s discovery representative Ms. Burrows, gave a total of thirty-seven (37) undertakings and twenty-three (23) refusals. By way of correspondence dated February 22nd, 2021, the defendant provided a chart to plaintiff’s counsel which provided a number of answers to undertakings and identified five refusals that the defendant intended to maintain.

[13] At the defendant’s continued examination for discovery held on June 20th, 2023, the defendant gave a total of three additional undertakings, one question was taken under advisement and four questions were refused.

[14] For the purposes of this motion, there remain nine refusals in issue, including the one question taken under advisement which is now deemed a refusal under the Rules of Civil Procedure. With reference to the numbers referred to in the Form 37C, the refusals in issue are the following:

#2 - To provide the floor inspection reports for the 16 weeks prior to the week ending July 22, 2017.

4 - To provide the employment file of Tyler Pena Estrada.

#9 - Assuming that less than two hours of video is available, what is the explanation for that? #15 - Is there anything in writing on the form filled out by Tyler which is a response to the question about filling in incident location conditions ? #24 - When Ms. Burrows observes Tyler in the video, is he conducting an inspection as per the protocols that are required? #25 - To contact Tyler and ask him how long the inspection that he completed prior to signing the form took. #26 - To review the video and confirm if there is a bucket in the trolley. #27 - To take steps to determine if Tyler will provide information, and obtain from him all specific information he can recall with respect to his inspections of the area where the fall occurred during the two hours prior to the fall. Under Advisement #1 To contact Tyler and obtain information with respect to what he did after the Plaintiff’s fall - namely, if he performed any inspection after the fall to determine what she had slipped on or what she had fallen on.

C. LEGAL PRINCIPLES

[15] Rule 31.06 of the Rules of Civil Procedure, which governs the scope of an Examination for Discovery, states in part: (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action.

[16] In Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 124, leave to appeal denied, 2011 ONSC 3685 (Div. Ct.), Justice Perell stated the following with respect to the scope of examinations for discovery pursuant to Rule 31.06:

The basic scope of an examination for discovery is set out in rule 31.06 (1) with rules 31.06 (2), 31.06 (3), and 31.06 (4) extending the scope of the examination. These rules overcome restrictions that had developed in the case law under the former Rules of Practice. Particularly important changes are found in paragraphs (a) and (b) of rule 31.06 (1), which stipulate that no question may be objected to on the grounds that the information sought is evidence or that the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness. (Rothmans para. 124)

[17] At the outset of this motion, the parties confirmed that they are substantially in agreement in terms of the applicable legal principles regarding the scope of questioning permitted at an examination for discovery. However, the parties were at odds with respect to the application of these legal principles to the examinations for discovery in question. In this regard, the defendant did not take issue with the plaintiff’s reliance on Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 129, leave to appeal denied, 2011 ONSC 3685 (Div. Ct.), where Justice Perell helpfully summarized the principles regarding the scope of the questioning on an examination for discovery as follows:

[129] The case law has developed the following principles about the scope of the questioning on an examination for discovery:

• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings: Playfair v. Cormack (1913), 4 O.W.N. 817 (H.C.J.).
• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted. See Cominco Ltd. v. Westinghouse Can. Ltd. (1979), 11 B.C.L.R. 142 (C.A.); Allarco Broadcasting Ltd. v. Duke (1981), 26 C.P.C. 13 (B.C.S.C.).
• Under the former case law, where the rules provided for questions “relating to any matter in issue,” the scope of discovery was defined with wide latitude and a question would be proper if there is a semblance of relevancy: Kay v. Posluns (1989), 71 O.R. (2d) 238 (H.C.J.); Air Canada v. McConnell Douglas Corp. (1995), 22 O.R. (3d) 140 (Master), aff’d (1995), 23 O.R. (3d) 156 (Gen. Div.). The recently amended rule changes “relating to any matter in issue” to “relevant to any matter in issue,” suggest a modest narrowing of the scope of examinations for discovery.
• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds: Graydon v. Graydon (1921), 67 D.L.R. 116 (Ont. S.C.) at pp. 118 and 119 per Justice Middleton (“Discovery is intended to be an engine to be prudently used for the extraction of truth, but it must not be made an instrument of torture …”); Kay v. Posluns (1989), 71 O.R. (2d) 238 (H.C.J.) at p. 246; Ontario (Attorney General) v. Ballard Estate (1995), 26 O.R. (3d) 39 (C.A.) at p. 48 (“The discovery process must also be kept within reasonable bounds.”); 671122 Ontario Ltd. v. Canadian Tire Corp., [1996] O.J. No. 2539 (Gen. Div.) at paras. 8-9; Caputo v. Imperial Tobacco Ltd., [2003] O.J. No. 2269 (S.C.J.). The court has the power to restrict an examination for discovery that is onerous or abusive: Andersen v. St. Jude Medical Inc., [2007] O.J. No. 5383 (Master).
• The witness on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue: Van Horn v. Verrall (1911), 3 O.W.N. 439 (H.C.J.); Rubinoff v. Newton, [1967] 1 O.R. 402 (H.C.J.); Kay v. Posluns (1989), 71 O.R. (2d) 238 (H.C.J.).
• The witness on an examination for discovery may be questioned about the party’s position on questions of law: Six Nations of the Grand River Indian Band v. Canada (Attorney General) (2000), 48 O.R. (3d) 377 (S.C.J.).

[18] Both parties agree that the test that applies as to whether a question is proper with respect to information sought is relevance. This test, which resulted from amendments to the Rules of Civil Procedure in January 2010, replaces the former “semblance of relevance” test.

[19] Rule 29.2.03(1) sets out the proportionality factors which apply to both oral and documentary discovery:

In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be unjustified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; (e) and the information or the document is readily available to the party requesting it from another source.

2. In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[20] What follows are my rulings on the refusals with respect to the plaintiff’s motion and the defendant’s cross-motion. My rulings outlined below with respect to the refusals in issue are rooted in the application of the legal principles outlined above including a consideration of the issue of proportionality which is particularly apposite in this case which has been brought under the simplified procedure.

[21] I have also considered and applied Rules 1.04(1) and (2) of the Rules of Civil Procedure, which require the Court to construe the Rules to secure the just, most expeditious and least expensive determination and to make an order that is proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

D. RULINGS ON REFUSALS – PLAINTIFF’S MOTION

#2 - To provide the floor inspection reports for the 16 weeks prior to the week ending July 22, 2017. (Q. 300, p.75)

[22] At the outset of the motion, the parties confirmed that this refusal is no longer in issue as the defendant agreed to produce the floor inspection reports for four weeks prior to the plaintiff’s fall. However, when defence counsel requested the floor inspection reports from the defendant Metro, defence counsel was advised that the floor inspection reports for that time period are no longer available. The defendant has confirmed that it will undertake best efforts to determine when the floor inspection reports were requested and the date when they were destroyed.

#4 - To provide the employment file of Tyler Pena Estrada. (Q.325, pages 82-83)

[23] The plaintiff seeks production of Mr. Tyler Estrada’s (“Tyler’s”) employment file. The plaintiff argues that Tyler’s employment file is relevant to the issues pleaded in the statement of claim. In particular, at paragraph 6 (g) of the statement of claim, the plaintiff has alleged that the defendant “employed incompetent servants or agents to remove or clean any and all substances from the premise…”.

[24] The plaintiff further argues that the relevance of Tyler’s employment file is based on the fact that Tyler was on site on the day of the plaintiff’s fall, he completed an employee witness report, and according to the defendant, he completed occasional floor inspections, including the inspection immediately prior to the plaintiff’s slip and fall. Tyler can also be seen on the defendant’s store video surveillance walking and pushing a trolley in the vicinity of the plaintiff’s fall, prior to when the plaintiff’s fall occurred.

[25] The defendant argues that this question is irrelevant and there is no probative value as there is no evidence to indicate that there were any issues with Tyler’s employment. The defendant further argues that the employment file is not relevant to determining the issues in this action.

[26] The defendant also argues that this question should not be answered considering the factors in Rule 29.2.03(1) relating to proportionality an in particular the defendant references issues relating to inter alia, the time required and the expense associated with producing the employment file.

[27] Tyler was an employee of the defendant and according to the defendant, Tyler conducted floor inspections on the day of the Plaintiff’s fall and was working on the date of the plaintiff’s fall. Tyler’s employment file is relevant to the issues as pleaded in paragraph 6 (g) of the statement of claim. The defendant conceded during oral submissions that there would not be any significant expense associated with production of the employment file, assuming it is still available.

[28] This is a proper question and shall be answered.

#9 - Assuming that less than two hours of video is available, what is the explanation for that? (Q.424, p.111)

[29] The parties confirmed that the defendant has provided a response to this refusal.

#15 - Is there anything in writing on the form filled out by Tyler which is a response to the question about filling in incident location conditions? (Questions 521-523, pages 137 to 139)

[30] The defendant’s representative, Ms. Burrows, was asked this question based on her review of an “Employee Witness Report” (“the form”) which was completed by Tyler Estrada,(“Tyler”) the Metro employee who was working in the produce department on July 22nd, 2017, the day of the plaintiff’s fall.

[31] The plaintiff argues that this is a proper question to ask Ms. Burrows who was produced as a representative of the defendant. The form requires the employee to “Please describe any knowledge of the incident, the incident location, the incident location conditions and/or the customer. Please include anything you saw, heard or did”.

[32] Tyler, the person who completed the form, was not examined for discovery and is no longer with the company.

[33] The form itself is a document generated by the defendant. The defendant’s employee Tyler completed the form following the fall. Tyler wrote his name beside the entry “witness name”. In addition to the summary section required to be filled out by employees, there are boxes on the form which can be checked. The completed form produced in the defendant’s affidavit of documents has initials which were added by Tyler.

[34] Given that Ms. Burrows was produced as a representative of the defendant, and in light of the fact that that there are portions of the form which can be said to require some interpretation relating to, for example, the boxes to be checked and the initials on the form, I find that it is a proper question to ask Ms. Burrows if there is anything in the form filled out by Tyler which is a response to the question about filling in incident location conditions. I find that this a relevant question that goes directly to the issues raised in the pleadings including the issue of what, if anything caused the plaintiff to fall.

[35] As a result, I find that this is a proper question and it shall be answered by the defendant.

#24 - When Ms. Burrows observes Tyler in the video, is he conducting an inspection as per the protocols that are required? (Question 58, page 21)

[36] The defendant maintains that it has answered this question.

[37] I agree that this question has already been answered by the defendant as Ms. Burrow’s evidence at her continued examination for discovery was that she was not able to determine if Tyler was conducting an inspection or not when she viewed him in the video prior to the plaintiff’s fall.

[38] In particular, at Ms. Burrows continued examination for discovery she was asked the following question and she provided the following answer: (Transcript from the continued examination for discovery of Ms. Burrows held on June 20th, 2023, p.17, Q.50)

Q. 50: So is it your evidence Ms. Burrows, that when you see Tyler in the video you don’t know if he’s performing an inspection or not? A. Correct

[39] Moreover, at Ms. Burrows continued examination for discovery she was asked the following questions and she provided the following answers: (Transcript from the continued examination for discovery of Ms. Burrows held on June 20th, 2023, pages 29 and 30, Questions 82 to 90)

Question 84: Do you agree that in the video, there is no one depicted conducting an inspection of the aisle before her fall? A. In the video? No. Q. 85. Sorry. You agree with me? A. If I’m understanding the question correctly, yeah, because I thought we already talked about I can’t tell if someone’s doing an inspection. Q. 86. Apart from Tyler pushing the trolley up the aisle about --- A. There was no other employee there. Correct. Correct.

[40] This question has been answered and the refusal is therefore proper.

Refusal #25 - To contact Tyler and ask him how long the inspection that he completed prior to signing the form took. (Questions 65-72, pages 24 to 27)

Refusal #27 - To take steps to determine if Tyler will provide information and obtain from him all specific information he can recall with respect to his inspections of the area where the fall occurred during the two hours prior to the fall. (page 33)

Under Advisement #1 To contact Tyler and obtain information with respect to what he did after the Plaintiff’s fall - namely, if he performed any inspection after the fall to determine what she had slipped on or what she had fallen on. (Question 94, page 37)

[41] The defendant was asked three questions which would require the defendant to attempt to contact its former employee Tyler Estrada (“Tyler”) and to ask him three questions relating to the floor inspections which he completed prior to the fall and after the fall if any.

[42] The plaintiff argues that these questions are directly relevant to the issues raised in the pleadings including what maintenance was completed by the defendant on the date of the plaintiff’s fall, as well as the issue of what caused the plaintiff to fall. In this regard, the plaintiff highlights that Tyler, a former Metro employee was on site at the time of the plaintiff’s fall and before the fall. The defendant’s productions suggest that Tyler completed floor inspections on the day of the plaintiff’s fall, including immediately prior to her fall.

[43] The plaintiff argues that the information sought from the defendant’s former employee is not unduly onerous to obtain and Tyler’s knowledge and observations are clearly relevant to the matters in issue in this action.

[44] The defendant argues that this is a case in which it would be unreasonable to require the defendant to make such inquiries of a former employee given the proportionality principles outlined in Rule 29.2.03 as well as considering the following factors:

a) The relevant Floor Inspection Report was provided to the plaintiff. b) Mr. Tyler Estrada is no longer an employee of the defendant and was a short-term, part-time employee when the accident occurred in 2017, almost seven years ago. c) The defendant provided the plaintiff with Mr. Tyler Estrada’s last known contact information including telephone number and home address. d) Any information regarding the incident not sufficiently contained in the Floor Inspection Report is readily available from other sources that have been produced to the Plaintiff (i.e. statement, video surveillance, etc.)

[45] The plaintiff refers to the case of Gravlev v Venturetek International Ltd., 1979 OJ 1242 in support of her position that the defendant ought to make inquiries of its former employee, Mr. Tyler Estrada.

[46] In Gravlev para.9, Justice Steele confirmed that the fact that persons are no longer employees of a company is not grounds for refusing to attempt to obtain information:

Merely because a person becomes a former employee does not excuse the plaintiff from attempting to obtain information from him. The test really is that the plaintiff is bound to obtain the information from such former agents or servants unless he can show that it would be unreasonable to require him to do so. The test is not whether such employee is still within the control of the plaintiff but whether it is unreasonable to require him to inform himself. It may be that if the plaintiff cannot obtain information from a former employee no longer under his control he will be excused from answering the question, but that is a secondary matter and not the primary matter.

[47] Gravlev, supra, was also cited with approval in Fiba Canning Inc. v. TRS Ent. Ltd., [2003] O.J. No. 5819 (S.C.J.) at paras 6, 8. in which the Court noted as follows:

There is no doubt that a corporate party, on its examination for discovery, can be ordered to make inquiries of former employees. (para.6)

The fact that they have left that employment does not excuse the representative of the former employer from the obligation to inform him or herself as to the actions that those former employees took while they were employees. Otherwise, given the mobility of individuals within the workforce these days, the purpose of the discovery process would be too easily thwarted. (para.8)

[48] In Fiba, Justice Nordheimer specifically stated that “the situations to which the requirement established by Gravlev and other cases is directed, however, are those situations where persons who were involved in the conduct which gives rise to the action have since left the employ of one party or the other”. Fiba, supra at para. 8

[49] Gravlev, supra, confirms that the test for me to apply with respect to these refusals is the following: “a party is bound to obtain the information from such former agents or servants unless he can show that it would be unreasonable to require him to do so”.

[50] There is no evidence before me that it will be unduly onerous in terms of time or expense for the defendant to undertake best efforts to answer these three questions that were refused.

[51] The questions refused by the defendant are relevant to the issues raised in the plaintiff’s statement of claim (paragraph 6 of the statement of claim) including but not limited to the issues of what maintenance was completed by the defendant on the date of the plaintiff’s fall, whether on the date of loss the employees were following the store’s maintenance protocols and the issue of what caused the plaintiff to fall.

[52] Based on the evidence in the record before me, I find that it would not be unreasonable for the defendant to attempt to contact its former employee Tyler in order to obtain information from him.

[53] Tyler was the defendant’s employee who conducted the last floor inspection prior to the plaintiff’s fall, he is seen in the store surveillance video prior to the fall and he attended the loss location after the fall and completed an “Employee Witness Report” following the fall. In the Employee Witness Report, Tyler is described as a witness.

[54] The defendant has produced documentation which was completed by Tyler on the date of loss and the defendant is relying on this evidence in support of its defence of this case. Tyler appears to have played a central role in terms of the store’s actions relating to maintenance of the area in question on the date of loss. I therefore find that it is reasonable, given the facts of this particular case, for the defendant to undertake best efforts to contact Tyler and ask him the three questions which were refused at the defendant’s examination for discovery.

[55] These three questions shall be answered. In particular, the defendants shall undertake best efforts to contact Tyler and ask him the three questions which were refused as outlined in the preceding paragraphs (Refusals #25, #37 and Question taken under advisement #1).

#26 - To review the video and confirm if there is a bucket in the trolley.

[56] The defendant maintains that this question has already been answered. At pages 27 and 28 of the transcript from the continued examination for discovery of Patti Burrows, Ms. Burrows confirmed that she reviewed the video of the plaintiff’s fall in advance of her examination for discovery and she confirmed that she could not say what the employee Tyler was pushing or pulling on the trolley based on her review of the video.

[57] She also admitted that she did not know if there was a bucket filled with water on the trolley or whether water spilled from the bucket as Tyler pushed or pulled the trolley.(p.27 Q.74, p.28 Q.75 and Q.76)

[58] I agree with the defendant that this question has been answered and therefore the refusal is proper.

E. PLAINTIFF’S REQUEST FOR A THIRD EXAMINATION FOR DISCOVERY OF THE DEFENDANT’S REPRESENTATIVE

[59] The plaintiff is seeking an Order that the defendant be required to attend at a continued examination for discovery relating to questions arising from the answers to undertakings and any questions arising from refusals ordered to be answered.

[60] In order to properly address the plaintiff’s request for a third examination for discovery, it is necessary to review the background relating to the two examinations for discovery of the defendant’s representative which have already been conducted.

EXAMINATIONS FOR DISCOVERY OF MS. BURROWS, THE DEFENDANT’S REPRESENTATIVE

[61] The examination for discovery of a representative of the defendant proceeded on January 11th, 2021. Pursuant to Rule 76.04(2) examinations for discovery in simplified procedure actions may not exceed three hours. Ms. Burrows, the defendant’s representative was examined for three hours and 51 minutes on January 11th, 2021.

[62] At the examination for discovery an issue arose as to whether or not the defendant could be examined beyond three hours due to the fact that certain portions of the retail surveillance video showing the plaintiff’s fall were not able to be viewed by plaintiff’s counsel in advance of the defendant’s examination for discovery. In particular prior to the defendant’s examination, plaintiff’s counsel was only able to view 20 minutes of the retail surveillance which was one hour in length. The remaining 40 minutes could not be viewed due to technological issues.

[63] The additional 40 minutes of the retail surveillance video was viewed by plaintiff’s counsel after the defendant’s examination for discovery. The plaintiff sought a further examination for discovery of the defendant’s representative Ms. Burrows, on the basis that the parties had agreed to a further examination. Ultimately, there was a dispute as to what the parties had agreed to in terms of a potential further examination of Ms. Burrows.

[64] The plaintiff therefore brought a motion to compel the defendant’s representative to attend at a further examination for discovery, which would result in the plaintiff’s examination of the defendant’s representative further exceeding the three hour time limit outlined in Rule 76.04(2).

[65] By way of Endorsement dated February 24th, 2022, Associate Justice McGraw ordered that the defendant’s examination should be extended for 30 minutes given that the surveillance was relevant and crucial to the matters at issue in the litigation. The continued examination for discovery of the defendant proceeded on June 20th, 2023. The defendant’s representative was examined for an additional 30 minutes.

BASIS FOR SEEKING A FURTHER EXAMINATION

[66] In support of her request to complete a third examination of the defendant, the plaintiff relies on inter alia, the affidavit of Heidi Buchanan, legal assistant to Mr. David Wilson, which was sworn on February 28th, 2024. Ms. Buchanan deposes that “with respect to questions arising from the answers to undertakings, under-advisement, and refusals to date, as well as any such questions arising in the future, I verily believe that the matters in issue in this action are of sufficient complexity to warrant a re-attendance for further examination by the defendant’s discovery representative rather than merely requiring that answers be provided in writing”.

[67] The plaintiff also argues that a further examination for discovery of the defendant is necessary in order to provide the plaintiff with the opportunity to ask further questions relating to the mats used in the area of the plaintiff’s fall and in particular to ask questions relating to the kind of mats used in the store. The plaintiff seeks a further examination for discovery of the defendant to ask anticipated questions arising out of the responses to the questions refused by the defendant if they are ordered answerable following this motion.

[68] The defendant argues that the Plaintiff was provided with the Metro Mat Placement Guidelines on February 22, 2021, well in advance of the motion that the plaintiff brought on November 3, 2021 seeking a further examination for discovery of the defendant. The defendant argues that the plaintiff’s motion materials explicitly stated that the plaintiff required an additional one hour to question the defendant’s representative respecting the surveillance video footage and the plaintiff made no mention of the need to ask further questions regarding the Mat Placement Guidelines.

[69] Moreover, the defendant argues that the plaintiff did in fact have the opportunity to, and did conduct questioning of the defendant’s representative regarding the short, five page Mat Placement Guidelines, during the continued examination for discovery of Ms. Burrows held on June 20, 2023.

[70] The Metro Mat Placement Guidelines were produced to the defendant on February 22nd, 2021. The transcript from the continued examination for discovery of Ms. Burrows confirms that the plaintiff did ask Ms. Burrows several questions about the mats in question on June 20th, 2023. (Transcript from the continued examination for discovery of Ms. Burrows – pages 5-13). Although, it is noted that the Mat Placement Guidelines were not referred to during the continued examination

[71] The plaintiff’s action has been commenced pursuant to the simplified procedure provided for in Rule 76 of the Rules of Civil Procedure.

[72] Rule 76.04(2) states the following regarding examinations for discovery under the simplified procedure:

Despite rule 31.05.1 (time limit on discovery), no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of three hours of examination, regardless of the number of parties or other persons to be examined.

[73] Rule 76.01(2) provides that the Rules that apply to an action apply to an action that is proceeding under Rule 76 unless Rule 76 provides otherwise. The Court confirmed in Leask v. Homewood Health Centre Inc., 2023 ONSC 342 paras 38 and 39, that by virtue of Rule 76.01(2), the general rules, which would include Rules 1.04, 2.03 and 3.02 would apply to a simplified procedure action because they are not otherwise exempted from Rule 76.

[74] Rule 3.02 states:

(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just. (2) A motion for an order extending time may be made before or after the expiration of the time prescribed.

[75] Rule 2.03 states that the court may, only where and as necessary in the interest of justice, dispense with compliance with any Rule at any time. Rule 1.04(1) provides that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[76] The plaintiff relies on Keedi v. Wawanesa Mutual Insurance Company et al. 2021 ONSC 3650 and Blue v. Metro Ontario Inc., 2022 ONSC 1283 in support of her position that the Court may grant leave to provide time for a further examination for discovery in a simplified procedure action in circumstances where documentation has been provided subsequent to the parties’ examination for discovery, and areas of enquiry were not explored because that documentation was not provided in advance.

[77] In support of its position that a further examination of the defendant should not be permitted, the defendant relies on Leask v Homewood Health Centre Inc., 2023 ONSC 342 at para 43 where the Court confirmed that in a simplified procedure action, while the Court retains discretion to extend the time within which oral discoveries must be completed, such “discretion should only be exercised sparingly and granted on where the interest of justice, as mandated by Rule 3.02 warrants it”.

[78] It is well known that the policy behind Rule 76 is to reduce the cost of litigating claims of modest amounts by reducing the amount of procedure available for such cases.

[79] The Ontario Court of Appeal in Combined Air Mechanical Services Inc v Flesch 2011 ONCA 764 at para 254 highlighted the policy objectives behind the simplified procedure as follows:

The rule is designed to get the parties to trial with a minimum of delay and costs. Thus, one of the key objectives of the simplified procedure rule is to limit the extent of pre-trial proceedings and to bring the parties to an early trial conducted pursuant to tailored rules. That is why discovery is restricted, cross-examination on affidavits and examination of witnesses on motions are not allowed, and the procedure at a summary trial is modified to reduce the length of the trial.

[80] Despite the fact that the plaintiff was in possession of the mat guidelines in advance of the motion argued before Associate Justice McGraw, it did not seek a further examination of the defendant relating to issues arising from the production of the mat guidelines. Moreover, the plaintiff was provided with the mat guidelines on February 22nd, 2021 such that there was an opportunity for the plaintiff to ask questions about the mat guidelines at the continued examination for discovery of Ms. Burrows. Indeed, the plaintiff did in fact ask several questions about the mats in use by the defendant on the date of loss at the defendant’s continued examination for discovery which proceeded on June 20th, 2023.

[81] This case is distinguishable from Keedi, supra, where the Court granted the moving party an additional 45 minutes to ask the defendant questions relating to inter alia a Code of Conduct which was ultimately not produced in advance of the examinations for discovery, despite the fact that the defendant had agreed to produce the Code of Conduct pursuant to an agreed upon discovery plan.

[82] In this action, the plaintiff’s case is a relatively simple Occupiers’ Liability action. Prior to the examinations for discovery the defendant produced significant liability documentation including retail surveillance video of the area of the fall which is one hour in length, the floor inspection report for the week ending July 22nd, 2017, the Floor Care Standard of March 15th, 2008 (review date April 19 2016), Metro Incident reports #1 and #2 dated July 23rd, 2017, the Independent Witness Report of Faiza Mohammed dated July 23rd, 2017, the Employee Witness Report of Tyler Estrada, the Metro Health and Safety Policy January 2017 and the Metro Health and Safety Communique Summary 2017.

[83] Moreover, the plaintiff has already been granted a further examination for discovery of the defendant’s representative who has now been examined on two separate occasions and for a total of approximately 4 hours and 20 minutes which is well in excess of the three hour time limit prescribed pursuant to Rule 76.04(2). The transcripts from these two examinations reveal that the defendant’s representative was questioned at length relating to the issues raised by the pleadings including the issue of mat placement. Questions regarding the Mat Placement Guidelines were not asked despite the fact that the Guidelines were produced to plaintiff’s counsel well in advance of the continued examination for discovery of Ms. Burrows.

[84] Considering the goals of the simplified procedure, I do not find that the evidence in the record before me supports the conclusion that a further examination of the defendant is required in order for the interests of justice to be served. In Keedi para 11, the Court confirmed that the Court should not undermine the important objectives of the Rules of the simplified procedure by extending the time limit without legitimate reasons for doing so.

[85] Given the quantum in dispute and taking into account the principles of proportionality as well as the overarching goals of the simplified procedure regime which are to limit the extent of pre-trial proceeding, contain costs, and to bring the parties to an early trial pursuant to tailored rules, I find that there is no basis to order a further re-examination of the defendant in light of the record before me.

[86] I accordingly dismiss this portion of the plaintiff’s motion.

F. DEFENDANT’S CROSS-MOTION

[87] What follows are my rulings on the refusals with respect to the defendant’s cross-motion.

# 1 To advise if the plaintiff has any other ongoing actions, other than this lawsuit and the May 2018 motor vehicle accident, for which she is claiming damages. (Q. 39 page 14)

[88] The defendant argues that this question is a proper question as the defendant’s pleading raised the issue of the plaintiff’s pre and post-accident medical history at paragraphs 13, 14 and 15 of the statement of defence.

[89] The defendant further argues that the basis for the defendant’s question relating to the plaintiff’s involvement in other lawsuits is a “court case search” which was produced by the defendant at the plaintiff’s examination for discovery which purports to list approximately 27 court actions involving the plaintiff. This document is in the record before me and is attached as Exhibit H to the amended affidavit of Jessica Bettencourt filed in support of the defendant’s cross-motion.

[90] The plaintiff refused to answer this question (Question 39) on the basis that the question is overly broad and not relevant to any matter in issue.

[91] In response, the defendant suggested that the question could be narrowed to request only those ongoing actions where damages for personal injuries were being claimed.

[92] Relying on Murphy v. Toronto and Region Conservation Authority, 2020 ONSC 1189, the plaintiff argues that it is not appropriate for the court to require answers to questions not asked.

[93] The plaintiff maintains that the refusal should stand as the defendant did not ask the more limited and appropriate question which would have narrowed the request to include actions relating to personal injuries only. The plaintiff argues that the question asked by the defendant is too broad as an answer to this broadly framed question would require the plaintiff to provide information relating to, for example, lawsuits arising out of property damage or alleged professional negligence which the plaintiff argues is irrelevant to the issues raised in this lawsuit.

[94] I agree with the plaintiff that when deciding a motion for refusals, the Court should not require answers to questions which were not asked. However, the Court is entitled to review the evidence in the record and in this case the complete transcripts from the three examinations for discovery of all parties were in the record before me.

[95] The first two refusals in the cross-motion that this Court was asked to decide were found at pages 14 to 16 of the transcript from the examination for discovery of the plaintiff which was held on June 20th, 2023.

[96] At page 15 of the transcript, counsel for the defendant asked the plaintiff (Q.39, page 14) if there are any ongoing lawsuits other than for the May 2018 MVA. Plaintiff’s counsel refused to allow the question to be answered on the basis that the question was not relevant and was too broad.

[97] Counsel for the defendant then proceeded to ask the same question but narrowed the question to include only a request for information relating to lawsuits for personal injuries. In particular, question 40 page 15 of the transcript confirms that the initial more broadly worded question asked by defence counsel was subsequently narrowed down to a request to advise if the plaintiff has any ongoing actions where the plaintiff is seeking damages arising from injuries sustained.

[98] The transcript confirms that defence counsel did ultimately narrow the scope of the initial question which will alleviate the plaintiff’s concern raised in the plaintiff’s factum and during oral submissions, that the initial question was too broad.

[99] Paragraphs 13 to 15 of the defendant’s statement of defence have raised the issues of the plaintiff’s pre-accident and post-accident injuries and/or medical issues. The defendant’s question, as asked, is therefore relevant to the issues raised in the pleadings.

[100] While the initial question asked concerned information relating to ongoing actions for which damages are being claimed, defence counsel clarified on the record that the defendant’s request relates only to actions where damages for personal injuries are being claimed. This narrowing of the initial question addresses the potential mischief raised by the plaintiff and will not require the plaintiff to provide information relating to ongoing lawsuits where damages for personal injuries are not being claimed.

[101] This is a relevant question and shall be answered. In particular the narrower question 40 found at page 15 of the transcript of the plaintiff’s examination for discovery which asks “do you have any lawsuits for personal injuries that are ongoing today, other than the lawsuit that we’re here today about and the lawsuit relating to the May 2018 accident” shall be answered.

#2 If there are any other ongoing or active actions where the plaintiff is seeking damages arising from injuries sustained, to provide a copy of the pleadings, the identity of counsel in those actions, the complete AB files for any other actions arising from motor vehicle accidents and to advise of the status of those lawsuits. (Question 41, page 16)

[102] The plaintiff refused this question on the basis that the question is overly broad and not relevant to any matter in issue.

[103] The plaintiff is claiming $100,000.00 in damages relating to the injuries that she sustained in the accident of July 22nd, 2017. At paragraph 7 of the statement of claim the plaintiff alleges that as a result of the fall in question, she sustained serious and lasting permanent injuries to her head, neck, back, shoulders and her entire musculoskeletal system, together with physical, emotional and nervous upset and trauma which have been accompanied by pain and suffering and shock. In the statement of claim, the plaintiff alleges that her enjoyment of life has been lessened and her ability to earn a livelihood has been and remains impaired.

[104] The defendant argues that the basis for the defendant’s question relating to the plaintiff’s involvement in other lawsuits is a “court case search” which was produced by the defendant at the plaintiff’s examination for discovery which purports to list approximately 27 court actions involving the plaintiff.

[105] The defendant did not ask for information and documentation relating to all civil actions in which the plaintiff may have been involved. Rather the defendant asked for information and documentation relating to only those civil actions which are a) ongoing/active and b) where the plaintiff is seeking damages for personal injuries. Moreover, the medical productions requested were limited to only Accident Benefits’ files relating to ongoing lawsuits.

[106] Other than suggesting that the question refused was improper for being too broad and not relevant to any issues raised in the pleadings, the plaintiff did not raise any significant concerns relating to the factors outlined in Rule 29.2.03. There is no evidence in the record before me to suggest that requiring the plaintiff to answer this question would be unduly onerous in terms of the required time or expense.

[107] The defendant’s pleading has raised the issue of the plaintiff’s pre-accident and post-accident injuries or medical issues (statement of defence, paras. 13, 14 and 15). The statement of claim alleges that the plaintiff sustained a number of injuries in the slip and fall accident at the defendant’s store and the plaintiff alleges that her enjoyment of life and ability to earn a livelihood have been impaired as a result of the injuries sustained in the fall at the defendant’s store. The defendant’s question is therefore relevant to the issues of causation and the plaintiff’s damages as raised in the pleadings. This is a proper question and therefore this question shall be answered.

#3 To provide the statement of Emma dated July 23, 2017, referenced at page 65, line 14 of the Transcript of Lorraine Blue’s Examination dated June 20, 2023. (Question 273, page 67)

[108] The defendant is seeking production of the statement of Emma which is listed in Schedule B of the plaintiff’s affidavit of documents. Emma is the plaintiff’s friend and Emma was with the plaintiff in the defendant’s store when the fall occurred. At her examination for discovery the plaintiff was asked if Emma witnessed the fall and the plaintiff’s response was that “Emma was there when it happened”. The plaintiff gave evidence at her examination for discovery that she has not spoken to Emma about the incident and that she is not sure what Emma saw.

[109] Plaintiff’s counsel provided a summary of Emma’s statement on the record at pages 65 to 67 of the transcript of the plaintiff’s examination for discovery. Defence counsel then requested a copy of the statement and this was refused.

[110] The plaintiff is asserting litigation privilege over the statement which the plaintiff maintains contains a memorialization of the events of the date of loss immediately prior to, during and after the Plaintiff’s slip and fall.

[111] The plaintiff has asserted in her factum that at the time that the statement was taken, the plaintiff had not yet retained counsel and was an unrepresented litigant with respect to her anticipated litigation against Metro arising out of the slip and fall. While this was an argument made in the plaintiff’s factum, this evidence was not properly before the court in an affidavit. Moreover, during oral submissions, plaintiff’s counsel confirmed that there is no evidence in the record before me from Emma or the plaintiff which would serve to shed some light on the circumstances surrounding the taking or drafting of the statement. In particular, the record before me is void of any significant evidence relating to the purpose of the statement, why exactly it was prepared and in what context or setting it was prepared.

[112] From the record before me, it can be established that Emma is the plaintiff’s friend who was in the store with the plaintiff when she fell. There is no date on the statement but there was reference to the date of loss being, July 22nd, 2017. In an answer to an undertaking to ask Emma when she made the statement the plaintiff advised that the statement was made on July 23rd, 2017.

[113] The summary of Emma’s statement provided at the plaintiff’s examination for discovery confirms that Emma did not see the plaintiff’s fall but was walking in front of the plaintiff when the fall occurred. Emma was a witness to the events which occurred immediately after the fall. Emma took photographs of the area where the fall occurred on the date of loss. In particular, nine colour photographs were taken by Emma on the date of loss and those photographs were produced to defence counsel prior to the plaintiff’s examination for discovery. (Transcript of Plaintiff’s examination for discovery pages 68 and 69). An undertaking was also given by the plaintiff to ask Emma if there were other photographs taken and if so to produce those photographs. (Transcript of the plaintiff’s examination for discovery - p.69, lines 4 to 7).

[114] In support of their respective positions, both counsel referred to the Supreme Court of Canada’s decision in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319 where the Supreme Court of Canada confirmed that in order for a record to be protected under litigation privilege, the dominant purpose for the creation of records must be for use in litigation that is ongoing or reasonably contemplated. The purpose of this privilege is to create “zones of privacy” wherein parties in our adversarial system can prepare their cases without exposure.

[115] In Blank, supra, the Supreme Court of Canada confirmed that litigation privilege should attach to documents created for the dominant purpose of litigation. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard is consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor client privilege. Blank, supra, paras 59 and 60.

[116] In R. v. Assessment Direct Inc., 2017 ONSC 5686, Nordheimer J. was asked to determine whether or not litigation privilege attached to statements from potential witnesses that were seized by the police pursuant to a search warrant. Nordheimer J. outlined the purpose of litigation privilege as follows (para 10):

The purpose of litigation privilege is to allow counsel to develop strategies to pursue or respond to litigation. The tact that counsel for a party is going to take, or the approach that is going to be pursued, is protected by the privilege. In other words, it is the revelation of the party’s litigation strategy that is protected, not base information itself.

[117] In finding that litigation privilege did not apply to the statements of potential witnesses Nordheimer J. confirmed that “litigation privilege cannot be used as an indiscriminate blanket to cover each and every witness statement collected”. R. V. Assessment Direct Inc, supra, at para 10.

[118] In this case, the plaintiff who is asserting litigation privilege over the statement must establish that the statement was created for the dominant purpose of existing, contemplated or anticipated litigation.

[119] In Fresco v. CIBC 2019 ONSC 3309 at parag. 31, Belobaba J. confirmed that a party asserting litigation privilege must tender cogent evidence in support of its position. In this regard, Justice Belobaba stated the following:

The moving party must put its best food forward and tender “cogent admissible evidence… usually accomplished through affidavits setting out fully the supporting facts.” Any supporting affidavit must be construed “strictly” and “a significant deficiency in the evidentiary record provides a good ground for the rejection of the privilege claim.”

[120] In Fresco v. CIBC 2019 ONSC 3309 at parag. 31, Belobaba J. further held that inadequate evidence about the dominant purpose of a document is a valid basis for refusing litigation privilege.

[121] There is a dearth of evidence in the record before me to confirm why Emma prepared the statement, in what context, at whose direction or for what purpose.

[122] There is evidence in the record before me which indicates that Emma is the plaintiff’s friend and Emma was with the plaintiff in the store when the fall occurred. Emma took photographs after the fall and those photograph were produced to defence counsel.

[123] Emma’s statement was prepared very shortly after the plaintiff’ fall when the plaintiff was not represented by counsel. In particular, the statement was prepared on July 23rd, 2017, the day after the fall which occurred at approximately 7:56 pm on July 22nd, 2017. Emma was a witness to events immediately after the fall.

[124] I accept the plaintiff’s position that litigation privilege can attach to documentation in the hands of unrepresented parties and can attach to documents created not at the direction of a lawyer. Blank, supra. para. 27. However, based on the evidence in the record before me, I am not persuaded that the dominant purpose of the creation of Emma’s statement was for use in litigation that was ongoing, anticipated or reasonably contemplated.

[125] This refusal is not proper and therefore an unredacted copy of Emma’s statement shall be produced to the defendant.

#4 To provide further photos of her footwear, including the soles (colour photographs since the current photos are black and white). Question 139, p.34

[126] At the plaintiff’s examination for discovery a request was made for photographs of the plaintiff’s shoes including the soles and for the plaintiff to preserve the shoes for trial. Black and white photographs were provided by plaintiff’s counsel to defence counsel. The defendant is now seeking colour photographs of the shoes that the plaintiff was wearing at the time of the fall which forms the basis of the action.

[127] The plaintiff argues that on a motion for undertakings and refusals it is not appropriate for the court to require answers to questions that were not asked. Murphy v. Toronto Region and Conservation Authority 2020 ONSC 1189 at para 8. In this regard, the plaintiff is refusing to provide colour photographs of the shoes in question on the basis that suitable photographs from multiple angles, including the soles, were already provided and no specific request for “colour” photographs was made during the examination for discovery.

[128] At paragraph 16 of its statement of defence, the defendant has pleaded that if the plaintiff sustained any injuries, losses or damages as alleged, which is denied, same have resulted from or were contributed to by the actions or negligence of the plaintiff, the particulars of which are: ….(e) she failed to wear proper footwear.

[129] The request for photographs of the plaintiff’s footwear is a relevant question and it is not disproportionate for the plaintiff to produce colour photographs of the plaintiff’s shoes.

[130] I agree that in general, on a motion for undertakings and refusals it is not appropriate for the court to require answers to questions that were not asked. However, I do not agree that this is a situation where this general proposition applies.

[131] In this case, a specific request for colour photographs is not required. In particular, in my view, in an Occupiers’ Liability action, when photographs of the shoes that a plaintiff was wearing at the time of a slip and fall are requested at an examination for discovery it can be expected that colour photographs will be provided absent some reasonable explanation as to why colour photographs cannot be provided.

[132] As a result, I find that this is not a proper refusal. Colour photographs of the shoes that the plaintiff was wearing on the date of loss shall be provided to the defendant.

G. COSTS

[133] The parties made submissions on costs following the argument of the motions. Both parties seek costs on a partial indemnity basis if successful. Both parties spent significant time preparing extensive materials for these motions.

[134] The plaintiff and defendant were each originally seeking Orders relating to outstanding undertakings. Prior to the motion being heard, both parties answered or substantially answered their outstanding undertakings.

[135] With respect to the plaintiff’s motion, the plaintiff moved on nine refusals. The defendant answered or partially answered two of the nine refusals prior to the motion being heard (refusal #2 was partially answered by the defendant and refusal #9 was answered). Of the 7 remaining refusals, the plaintiff was successful on five of the refusals.

[136] The plaintiff was not successful in her request for an Order that the defendant’s representative be examined on a third occasion.

[137] Well in advance of the motion being heard the parties agreed on consent to strike the jury notice.

[138] With respect to the defendant’s cross-motion, the defendant moved on four refusals and the undertaking referred to as undertaking No.4. I declined to hear argument on undertaking #4 on the basis that it did not form part of the original materials filed for the cross-motion. However, the defendant was entirely successful with respect to the remaining four refusals which have been ordered to be answered.

[139] Both parties filed costs outlines with respect to both motions.

[140] With respect to the plaintiff’s motion, the plaintiff is seeking costs on a partial indemnity basis of $6,690.00 for fees, $300.00 for the lawyer’s fee for the appearance on the motion, disbursements of $339.00 and HST on fees of $908.60 for a total amount of $8,237.70.

[141] The defendant is seeking costs on a partial indemnity basis in the amount of $4,174.58 if successful.

[142] With respect to the defendant’s cross-motion, the defendant is seeking costs of $8,027.52 on a partial indemnity basis if successful. The Plaintiff is seeking costs on a partial indemnity basis in the amount of $3,695.10 inclusive of fees, disbursements and HST if successful.

[143] In deciding the issue of costs with respect to the plaintiff’s motion and the defendant’s cross-motion, I am mindful of the comments and legal principles outlined in Keedi v. The Wawanesa Mutual Insurance Company, 2021 ONSC 3650, at paras 19 and 20.

[144] In particular, in Keedi, Associate Justice Kaufman stated the following when deciding the issue of costs following a motion where the plaintiff was seeking a further examination for discovery in a simplified procedure action:

Rule 57.01 of the Rules of Civil Procedure sets out the factors a court may consider when deciding costs but the court’s authority under this rule remains discretionary. The modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants. In 394 Lakeshore Oakville Holdings Inc. v. Misek, Perrell, J. identified two further purposes: (1) to facilitate access to justice, including access for impecunious litigants; and (2) to discourage frivolous claims and defences.

This is a simplified action of relatively modest amount. The Court is of the view that both parties incurred fees on this motion that were disproportionate to the amount claimed in the proceeding.

Recent amendments to Rule 76 caps costs awards at $50,000 after trial, regardless of what the parties incur. While there is no equivalent cap applying to motions within simplified rules, the Court should encourage a culture of proportionality and costs containment. Rule 76 aims to curb the crippling costs of litigating smaller claims, and thereby enhance access to justice. These objectives would be undermined if the court routinely sanctioned large costs awards relative to the amounts at issue in a claim. Moreover, Rule 57.01(a) requires the Court to consider the amount claimed in the proceeding and Rule 1.04(1.1) requires the Court to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[145] This action is a relatively simple occupiers’ case which has been commenced under the simplified procedure. In this action, the plaintiff is claiming damages of $100,000 plus interest and costs. Both parties spent a significant amount of time in preparing their materials which is reflected in the costs outlines filed. However, given the amount involved in the proceeding and the relative lack of complexity of the issues decided on this motion, I am of the view that large costs awards would not be appropriate. Moreover, in this case, factoring in that the plaintiff’s request for a further examination for discovery of the defendant was not granted, I am of the view that the parties were almost equally successful in their respective motions.

[146] Based on the foregoing, and having considered the factors in Rule 57.01 and section 131(1) of the Courts of Justice Act, I am of the view that it is fair, reasonable, proportionate and within the parties’ reasonable expectations that no costs shall be ordered payable with respect to the plaintiff’s motion or the defendant’s cross-motion.

H. DISPOSITION

[147] On consent the jury notice shall be struck.

[148] The defendant shall provide answers to the following questions which were refused or provide evidence of best efforts within 30 days of the release of this decision.

#4 - To provide the employment file of Tyler Pena Estrada. (Question 300, p.75) #15 - Is there anything in writing on the form filled out by Tyler which is a response to the question about filling in incident location conditions. (Questions 521-523, pages 137 to 139) Refusal #25 - To contact Tyler and ask him how long the inspection that he completed prior to signing the form took. (Questions 65-72, pages 24 to 27) Refusal #27 - To take steps to determine if Tyler will provide information, and obtain from him all specific information he can recall with respect to his inspections of the area where the fall occurred during the two hours prior to the fall. (p. 33) Under Advisement #1 To contact Tyler and obtain information with respect to what he did after the Plaintiff’s fall - namely, if he performed any inspection after the fall to determine what she had slipped on or what she had fallen on. (Question 94, p. 37)

[149] The plaintiff shall provide answers to the following questions which were refused or provide evidence of best efforts, within 30 day of the release of this decision.

#1 To advise if the plaintiff has any other ongoing actions, other than this lawsuit and the May 2018 motor vehicle accident, for which she is claiming damages. (Q. 39 page 14) #2 If there are any other ongoing or active actions where the plaintiff is seeking damages arising from injuries sustained, to provide a copy of the pleadings, the identity of counsel in those actions, the complete AB files for any other actions arising from motor vehicle accidents and to advise of the status of those lawsuits. (Question 41, page 16) #3 To provide the statement of Emma dated July 23, 2017, referenced at page 65, line 14 of the Transcript of Lorraine Blue’s Examination dated June 20, 2023. (Question 273, page 67) #4 To provide further photos of the plaintiff’s footwear, including the soles (colour photographs since the current photos are black and white). Question 139, p.34

[150] No costs shall be ordered payable by or to either party.

ASSOCIATE JUSTICE G. ECKLER DATE: Friday May 3rd, 2024