Court File and Parties

COURT FILE NO.: CV-21-00669313-0000 DATE: 20240522

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nagash Nester Campbell v. Jigneshkumar Patel et al

BEFORE: Associate Justice Rappos

COUNSEL: Jono Schneider, for the Plaintiff Angus Chalmers, for the Defendant

HEARD: March 1, 2024 (via videoconference)

Endorsement

[1] The Defendant, Jigneshkumar Patel, brings a motion for an order compelling the Plaintiff to provide answers to one outstanding undertaking and four refused questions from the Plaintiff’s examination for discovery held on June 29, 2022.

[2] The action is with respect to a motor vehicle accident said to have occurred on July 5, 2020.

[3] In his statement of claim issued on September 27, 2021, the Plaintiff seeks, amongst other things, $500,000 in damages for loss of income and earning capacity and $100,000 in damages for past and future medical, rehabilitation and attendant care expenses.

Undertaking

[4] During the examination for discovery, the Plaintiff was asked questions about an accident benefit claim he made in connection with an accident that occurred prior to the motor vehicle accident at issue in this action. Counsel to the Defendant requested production of “the complete AB file from that prior accident including any settlement documentation”. The Plaintiff’s lawyer responded with “We’ll make best efforts”.

[5] This is the undertaking that the Defendant says the Plaintiff has failed to answer to date.

[6] In his responding motion materials, the Plaintiff stated that he had taken steps to obtain the file from Aviva Insurance and had not received the file despite the Plaintiff’s best efforts.

[7] During submissions, counsel to the Plaintiff advised that he had received the file earlier in the week and had reviewed its contents. It is his position that the contents are not relevant to the action, as the file deals with matters more than three years prior to this accident.

[8] As a result, the Plaintiff argues that the file need not be produced, as all undertakings are subject to relevancy.

[9] The Plaintiff has not directed me to any case law that supports this proposition.

[10] I have reviewed the transcript from the examination. The Defendant asked for production of the accident benefits file. The Plaintiff undertook to make best efforts to obtain it. There was nothing said during the examination that suggests that production of the file was subject to counsel’s review and determination of relevancy.

[11] The Plaintiff has the accident benefits file in his possession. A party has an obligation to honor undertakings that are provided during examinations for discovery. [1]

[12] In my view, the Plaintiff undertook to produce the accident benefits file from the prior accident if he was able to obtain it from the insurer, and must produce it to the Defendant.

[13] Accordingly, the Plaintiff is hereby directed to produce the accident benefits file in his possession in satisfaction of the undertaking his counsel provided during the examination.

Refusals

#1 – To Provide the Statement or the Particulars of the Statement the Plaintiff Provided to the Insurance Company After the Accident

#2 – To Advise When the Plaintiff Gave the Statement the Plaintiff Provided to the Insurance Company After the Accident

[14] During the examination, the Plaintiff confirmed that he gave a statement to his insurance company concerning the accident. The Plaintiff, through his lawyer, refused to provide particulars about the statement and refused to provide a copy of the statement given to the insurer.

[15] The transcript does not reflect the rationale for the refusals.

[16] The Defendant asks that these questions be answered, as any statement will contain information about the accident when the Plaintiff’s memory was still fresh and provide contemporaneous evidence.

[17] In his responding materials, the Plaintiff states that he has produced the complete accident benefits file received from his insurer in connection with this action, and no statement from the Plaintiff was included in the file. The Plaintiff argues that the Defendant asked him questions about the accident and material issues.

[18] The Plaintiff did not file a factum for the motion. During submissions, counsel cited the decision of the Divisional Court in Sangaralingam v. Sinnathurai in support of his position.

[19] In that case, a defendant made a statement to his insurer after the litigation had commenced, and the Divisional Court concluded that the statement was subject to litigation privilege. [2]

[20] Counsel to the Plaintiff does not argue that the statement or its contents are privileged. He relies on the case for the proposition that the statement and its contents need not to be produced or disclosed as the Defendant was able to obtain the information through other means, being asking the Plaintiff questions during the examination for discovery.

[21] In Sangaralingam v. Sinnathurai, the Divisional Court held that counsel for the plaintiff had “every opportunity during the examination for discovery to ask questions about the accident and the material issues”, and that “there is no suggestion that [the defendant] had difficulty remembering what had occurred. Furthermore, the [plaintiff] had every opportunity to ask questions to clarify the evidence.” [3]

[22] There is nothing in the Defendant’s materials that suggest that the Plaintiff has a memory issue. The Defendant had the opportunity to examine the Plaintiff about matters regarding the motor vehicle accident and what transpired thereafter, and to ask questions to clarify the evidence.

[23] In my view, as was the case in Sangaralingam v. Sinnathurai, the question was being asked for the sole purpose of finding out what the Plaintiff told his insurer, not for the purpose of eliciting information relevant to material issues. [4]

[24] Accordingly, I find that the facts in Sangaralingam v. Sinnathurai are similar to the facts in the case before me, and hold, as the Divisional Court did, that the questions need not to be answered by the Plaintiff.

#3 – To Provide Redacted Bank Records for 3 Years Pre-Accident to Date, Showing the Deposits of Cheques Received from His Employment

#4 – To Provide the Accountant’s File for 3-years Prior to the Accident

[25] The Plaintiff is a member of The International Union of Painters and Allied Trades, Local 1891 and he testified that he receives his work through the Union. According to the Plaintiff’s Union File, he earned $22,955 in 2017, $28,428 in 2018, $31,990 in 2019 and $2,546 in 2020. However, he testified that he earned about $45,000 in 2017, 2018, and 2019. The Plaintiff has not filed tax returns for the years 2016 to 2018. The income information that is provided in the Plaintiff’s 2019 and 2020 tax returns shows earnings of $31,990 and $10,051.84.

[26] During the examination, the Defendant sought redacted bank records that show deposits made to his bank account from cheques received from his employment. The Plaintiff refused to produce the bank records. The Plaintiff also testified that he has an accountant who prepared his income tax returns. The Defendant asked for the accountant’s file for the three years pre-accident, which was refused by the Plaintiff.

[27] Given that the Plaintiff alleges a loss of competitive advantage, inability to perform employment, and consequential loss of income, and given the inconsistency in the information provided to date, I am of the view that the bank records and the accountant’s files are relevant to the Plaintiff’s claim for loss of income, past and future. [5]

[28] While the Defendant did make brief submissions regarding proportionality, there is no evidence before the court regarding the cost to obtain bank statements and the accountant’s records and the difficulty or prejudiced suffered for the Plaintiff to obtain such information. The information should be readily available from his bank and accountant, and given that the time period sought is only three years, the volume of documents should not be excessive. [6]

[29] Accordingly, the Plaintiff is required to obtain and produce the redacted bank statements for the three-year period, along with the accountant’s file for the same period of time. The expense incurred from the bank and the account to obtain the statements and files shall be reimbursed to the Plaintiff by the Defendant.

Disposition and Costs

[30] As set out above, I hereby order the Plaintiff to answer the outstanding undertaking and questions #3 and #4, and order that the Plaintiff does not need to answer questions #1 and #2.

[31] The Defendant seeks costs on a partial indemnity basis of $6,485.75, inclusive of disbursements and taxes. The Plaintiff would have sought $2,500 all-inclusive if successful, but argued that the parties should bare their own costs.

[32] Costs of a step in a proceeding are in the discretion of the Court, as set out in section 131 of the Courts of Justice Act. Rule 57.01 of the Rules of Civil Procedure sets out factors that the court may consider in exercising such discretion. The overriding principles in determining costs are fairness and reasonableness. [7]

[33] In my view, there was divided success on this motion, such that the parties shall bare their own costs. Accordingly, I hereby exercise my discretion to award no costs for this motion.

Associate Justice Rappos DATE: May 22, 2024

Cited Cases and Legislation

[1] Subrule 31.07(4), Rules of Civil Procedure. [2] Sangaralingam v. Sinnathurai, 2011 ONSC 1618, paras. 2, 5-7 and 36. [3] Ibid., paras. 32-33. [4] Ibid., para. 33. [5] Al Kirschner v. Chatham-Kent, 2019 ONSC 5147, para. 9. [6] Ibid., paras. 10-20. [7] Boucher v. Public Accountants Council for the Province of Ontario, at paras. 24, 26, and 37-38.