Court File and Parties

COURT FILE NO.: CV-19-00068794-0000 DATE: 20240118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Blake Davies v. Hamilton Trampoline, ULC et al

BEFORE: Associate Justice Rappos

COUNSEL: Aidan Vining, for the Plaintiff Dan Cook, for the Defendants Hamilton Trampoline, ULC doing business as Flying Squirrel Sports Canada Trampoline, Cody Schueler, and Luke Schueler

HEARD: January 16, 2024 (by videoconference)

REASONS FOR DECISION

Nature of the Motion

[1] The Plaintiff brings a motion for an order compelling two Defendants to provide answers to seven (7) questions asked during their examinations for discovery that were refused or were taken under advisement and are now deemed to have been refused under the Rules of Civil Procedure (the “Rules”).

[2] The Plaintiff argues that each of the questions were improperly refused and should be answered. The Responding Defendants (as defined below) argue that the questions were properly refused because the information sought is not relevant to the issues in this action, is overly broad, is not proportionate to the central issues in the action, raises privacy issues in respect of certain non-parties to the action, and/or amounts to a “fishing expedition”.

Background

[3] This is a personal injury action. The Plaintiff was allegedly seriously injured while using the AcroBag inflatable airbag at the Flying Squirrel Sports Canada indoor trampoline facility located in Hamilton (the “Facility”).

[4] The Plaintiff seeks damages in negligence from 13 defendants that include Hamilton Trampoline, ULC doing business as Flying Squirrel Sports Canada Trampoline (“Flying Squirrel Sports”), Cody Schueler (“Cody”) and Luke Schueler (“Luke”) (collectively, the “Responding Defendants”). Cody and Luke are involved in the ownership and operation of the Facility.

[5] The Plaintiff has plead, among other things, that the Responding Defendants failed to disclose injury rates, failed to monitor injury rates, failed to properly inform the attending public of the injury rates and known risks to those entering the Facility, failed to advise customers admitted to the Facility of the known risks on the premises, and negligently misrepresented and failed to advise the Plaintiff of the nature and extent of previous injuries at the Facility.

[6] The Responding Defendants deny liability on the basis that the Plaintiff willingly assumed all risks inherent in participating in trampoline activities and signed a comprehensive waiver that brought those risks to his attention. By completing the waiver and participating in the trampoline activities, the Responding Defendants allege that the Plaintiff agreed to hold the Responding Defendants harmless.

[7] Alternatively, the Responding Defendants rely upon the doctrine of volenti non fit injuria (“to a willing person, injury is not done”).

[8] The Plaintiff has examined for discovery Luke, as a representative of Flying Squirrel Sports and as a named Defendant, and Cody as a named Defendant. The Plaintiff asks that Luke answer six questions that were refused during his examination or are deemed to have been refused, and that Cody answer one refused question.

Legal Principles

[9] The scope of discovery is framed by the pleadings. A person examined for discovery is required to answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action. Minotar Holdings Inc. v. Ontario (Municipal Affairs and Housing), 2018 ONSC 4552, para. 7; subrule 31.06(1) of the Rules of Civil Procedure.

[10] The concept of relevance is generally interpreted broadly at the exploratory stage of the proceedings. To be relevant, the document must relate to issues between the parties, be useful and likely contribute to resolving the issues. Imperial Oil v. Jacques, 2014 SCC 66, para. 30.

[11] Relevance is established where the evidence tends to prove or disprove a disputed fact. A document is properly related to a matter in issue if it might reasonably be supposed to contain information which may directly or indirectly enable the party to advance his or her own case or to damage the case of his or her adversary or which might fairly lead him or her to a train of inquiry that could have either of these consequences. Gu v. Habitat for Humanity Greater Toronto Inc., 2017 ONSC 2793, para. 8.

[12] In reaching a decision on this motion, I must:

(a) liberally construe the Rules to secure the just, most expeditious and least expensive determination; subrule 1.04(1) of the Rules of Civil Procedure;

(b) make an order that is proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding; subrule 1.04(2) of the Rules of Civil Procedure; and

(c) consider the factors set out in subrule 29.2.03(1) of the Rules of Civil Procedure regarding proportionality in discovery.

Analysis

Luke Question #1 – To produce all data in relation to injuries, including age, severity and hospitalization and if 911 was called from 2013 up to April 29, 2017

[13] The Plaintiff asked Luke questions regarding injuries suffered by patrons attending at the Facility. Luke confirmed that every injury at the Facility is documented by the Responding Defendants and that they have information on the age of the patron, the severity of the injury, and whether 911 was called at the time of the injury. Luke indicated that the Responding Defendants took these steps to prevent further injuries.

[14] When asked to produce this data from 2013 to the date of the Plaintiff’s injury, the question was taken under advisement. In their Undertakings and Refusals Chart, the Responding Defendants indicated that the question was refused as it was “too broad of a request”.

[15] The Plaintiff argues that the information sought is relevant to the risks involved for patrons participating in trampoline activities at the Facility, the Responding Defendants’ knowledge and understanding of those risks, and the Plaintiff’s alleged informed consent about the risks involved.

[16] The Respondent Defendants argue that this is not a proportionate question, and it amounts to a fishing expedition that does not relate to issues between the parties and will not contribute to resolving the issues.

[17] I agree with the Responding Defendants that this request is overly broad, as it would extend to any individual that experienced any type of injury at the Facility over a four-year period, which I find is not relevant to the issues in this case concerning an alleged serious injury incurred by the Plaintiff while engaging in a specific activity at the Facility.

[18] As a result, I find that this question need not to be answered by the Responding Defendants.

Luke Question #2 – To provide a list of the individuals who participated on the night of April 29, 2017 including their names and contact information

[19] During the course of the examination, the Plaintiff asked Luke about the individuals in attendance at the Facility at the time the Plaintiff was allegedly injured. The Responding Defendants have produced documents setting out what employees would have been in attendance. Luke confirmed that the Responding Defendants would have information regarding each of the patrons that attended the Facility on the day in question.

[20] The Responding Defendants took under advisement the request for a list of all individuals who participated on the night of the incident and their contact information. They subsequently confirmed their refusal to answer the question on the basis that the information is private, and they are not authorized to release it to the Plaintiff.

[21] In asking this question, the Plaintiff relied on subrule 31.06(2), which provides that a party on an examination for discovery may obtain “disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrence in issue in the action, unless the court orders otherwise.”

[22] The Responding Defendants argue that they have already satisfied this in another undertaking, and that they are only required to disclose the names of any witnesses they know of or subsequently learn about. Foster v. Prince, 2012 ONSC 205, para. 30.

[23] In my view, the language of subrule 31.06(2) extends beyond known witnesses to “persons who might reasonably be expected to have knowledge”. In these circumstances, this includes the names and e-mail addresses of patrons that were in attendance at the Facility at the time that the Plaintiff was injured.

[24] Given that this request is limited to a specific time and date, I do not view there to be an issue of proportionality in having the Responding Defendants answer this question, especially since Luke confirmed that the information is stored digitally. While the Responding Defendants take the position in their materials that it will take general counsel days of searching to respond to refused questions, that response is vague and does not address the time that will need to be spent on this specific task.

[25] As a result, I find that this is a proper question and is to be answered by the Responding Defendants.

Luke Question #3 – To answer how many videos in the Hamilton park were lost based on DVR issues

Luke Question #4 – To provide footage that was stored on the DVR of past injuries

[26] As detailed during Luke’s examination, the Facility was equipped with video cameras that should have captured and recorded the incident involving the Plaintiff. However, for unexplained reasons, the DVR system did not record the incident.

[27] Luke confirmed that the DVR system was one of the safety protocols in place for the facility and permitted the Responding Defendants to help monitor and change policies and make corrections to make the facility safer.

[28] When asked about the fact that the DVR system did not record the incident, Luke confirmed that this was not the first time this issue had occurred.

[29] The Plaintiff argues that these two questions are relevant to the failure of the Responding Defendants to monitor incidents and accidents at the Facility and comply with their own safety procedures.

[30] The Responding Defendants refused to answer these questions on the basis of relevancy. The Responding Defendants also argue proportionality, given the amount of time it would take to search through records to obtain this information.

[31] I agree with the Responding Defendants that this information is not relevant to the matter at issue in this action, which is whether the Responding Defendants were negligent on the day of the incident. The Plaintiff has not convinced me that information regarding the frequency of the failure of the DVR system and being able to watch the video of prior incidents relates to issues between the parties and would be useful and likely contribute to resolving the issues between them.

[32] As a result, I find that these two questions need not be answered by the Responding Defendants.

Luke Question #5 – To produce the videotape of the front foyer of all the waiver machines from November 2016 until April 29, 2017

[33] The Plaintiff wishes to see this video footage on the basis that it is relevant to how patrons were instructed as to the rules and risks at the premises in the months prior to the Plaintiff’s attendance at the premises.

[34] Based on my review of the transcript, while this question was initially refused, Luke subsequently answered that the video sought by the Plaintiff does not exist, as the system only records 30 days at a time and is then erased. Additionally, this was stated in the Responding Defendants’ Refusals Chart delivered to counsel to the Plaintiff in September 2023.

[35] As a result, I find that this request has already been addressed by the Responding Defendants.

Luke Question #6 – To answer if the data in the system is used in relation to insurance coverage and exposure in that regard

[36] During his examination, Luke confirmed that the Responding Defendants maintain injury information for safety prevention and to evaluate operations and attractions.

[37] The Responding Defendants refuse to answer this question at the examination. The Plaintiff argues that it is relevant to how the Responding Defendants use the injury data, and its understanding of the risks involved with participating in activities.

[38] The Plaintiff has not satisfied me that this information is relevant such that it will directly or indirectly enable him to advance his case in negligence or to damage the case of the Responding Defendants.

[39] As a result, I find that this question need not be answered by the Responding Defendants.

Cody Question #1 – To advise of the input Cody would have had given in conversations regarding the waiver

[40] During his examination, Cody confirmed that lawyers drafted the waiver used by the Responding Defendants at the Facility. He indicated that he reviewed it and had input in relation to how the parks operated.

[41] The Responding Defendants refused to answer this question on the basis that it involved privileged communications between Cody and his lawyer.

[42] The Plaintiff relies on the decision of Justice Morgan in Bakhshi v. True North Climbing Inc., 2023 ONSC 5843, paras. 13-14 in support of his position that this was a proper question and should be answered. In that case, Justice Morgan upheld the decision of Associate Justice Brott that required the deponent to answer questions regarding the waiver signed by the plaintiff.

[43] That case is distinguishable, as none of the questions that were asked dealt with discussions with counsel regarding the terms of the waiver and the input provided by the owner to its lawyers, as is the case with this question. Additionally, in this case, Cody was not examined as a representative of Flying Squirrel Sports, where in Bakhshi v. True North Climbing Inc. the deponent was being examined as a representative of the corporate defendant.

[44] As a result, I find that this question need not be answered, as it deals with discussions between Cody and his lawyers regarding his input on the terms of the waiver, and due to it being asked of Cody when he was being examined in his own right and not as a representative of Flying Squirrel Sports.

Disposition and Costs

[45] For the reasons set out above, I upheld the refusals for Luke questions #1, 3, 4, 5 and 6, and question #1 asked of Cody, and required Luke to answer question #2.

[46] In terms of costs, the Plaintiff was not seeking costs of the motion, and argued that no costs should be awarded. The Responding Defendants seeks costs of approximately $6,000 on a partial indemnity basis and $9,500 on a substantial indemnity basis.

[47] As I informed the parties during the hearing, there is nothing in the materials or counsel’s submissions that justify an award of costs on a substantial indemnity basis.

[48] As the Responding Defendants were largely successful in responding to this motion, given that only one of the seven refused questions are required to be answered, I fix costs on a partial indemnity basis at $5,000 payable by the Plaintiff within 30 days.

[49] The parties shall prepare a draft order and send it to the Trial Coordinator for my review.

Associate Justice Rappos DATE: January 18, 2024