Court File and Parties

Court File No.: CV-18-598346 Date: 2024 07 26 Superior Court of Justice - Ontario

Re: Suzana Kovacevic, Plaintiff - and - Emir Kovacevic, Defendant

Before: Associate Justice Todd Robinson

Appearing: S. Kovacevic, in person (moving party) M. Tufman, for the defendant

Heard: April 24, 2024 (by videoconference)

Reasons for Decision (Motion for Production of Credit Card Statement)

[1] The plaintiff, Suzana Kovacevic, moves for an order compelling production of the statement for a credit card that she alleges the defendant, Emir Kovacevic, may have used to purchase her Costco groceries on December 29, 2014. Ms. Kovacevic argues that it is an important document for trial. Mr. Kovacevic disagrees and opposes the motion.

[2] Although having the same last name, the parties are not related. At the core of Ms. Kovacevic’s claim against Mr. Kovacevic is an allegation that they shared a romantic relationship, which is denied by Mr. Kovacevic. In particular, at trial, Ms. Kovacevic intends to rely on certain transcribed Skype messages that she says were exchanged between them. Mr. Kovacevic disputes the authenticity of those messages.

[3] Ms. Kovacevic says that the Skype exchange refers to the Costco grocery purchase. She submits that obtaining the credit card statement will confirm the purchase of her Costco groceries, which is directly relevant to corroborating the Skype messages and, through them, corroborating her assertion of a romantic relationship. I am unconvinced. Moreover, Ms. Kovacevic has a procedural hurdle: this action has been set down for trial. Leave for this motion is required. Ms. Kovacevic has already delivered two notices of readiness for pre-trial conference and attempted to deliver a third in December 2023. She nevertheless continues to bring discovery-related motions.

[4] Having considered the parties arguments, I am denying leave for this motion. In any event, I would dismiss the motion on the merits.

Analysis

[5] Ms. Kovacevic’s notice of motion seeks an order “for production of documents”. Per the moving factum, Ms. Kovacevic sought production from Mr. Kovacevic of (i) his American Express (AMEX) card statement for December 2014, (ii) his Mastercard statement for December 2014, and (iii) the statement of any other card that he possessed in December 2014 and could have used to purchase Ms. Kovacevic’s Costco groceries on December 29, 2014. At the motion hearing, Ms. Kovacevic only pursued relief to compel production of the AMEX statement. She concedes that only debit and AMEX could be used to make payments at Costco at the relevant time and, in any event, that she has no evidence supporting that Mr. Kovacevic had any other cards.

[6] In my view, the motion fails on two main bases:

(a) the action has been set down for trial and, since Ms. Kovacevic has failed to exercise her discovery rights with reasonable diligence, leave to bring this motion should be denied; and

(b) Ms. Kovacevic has not met her onus of demonstrating that the statement is a relevant document in the possession, control, or power of Mr. Kovacevic that ought to have been produced.

Is setting this action down for trial a bar to this motion?

[7] Mr. Kovacevic argues that, since the action has been set down for trial, this motion requires leave under subrule 48.04(1) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). Since leave was not sought or obtained, he argues that this motion should be barred. Ms. Kovacevic submits, essentially, that I should give no effect to that argument since it has not been raised in defence of her prior motions. Alternatively, she asks that I grant leave to the extent it is required.

[8] Graham A.J. previously ordered that this action proceed under the simplified procedure: Kovacevic v. Kovacevic, 2022 ONSC 2340 at para. 23.

[9] The process for setting an action down for trial in a simplified procedure action governed by rule 76 of the Rules is different than in an action governed by the ordinary procedure. Rule 48 of the Rules outlines the processes and procedures for listing an action for trial. In an ordinary procedure action, rule 48.02 requires that an action is set down for trial by serving and filing a trial record. In a simplified procedure action, that rule is overridden by subrule 76.09(1). It provides that, despite rule 48.02, a simplified procedure action is set down for trial by serving and filing a Form 76C notice of readiness for pre-trial conference.

[10] Once an action has been set down for trial, rule 48.04 applies. Subrule 48.04(1) sets out that a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court, subject to the exceptions enumerated in subrule 48.04(3). Subrule 48.04(3) provides two exceptions: (a) a motion to compel compliance with any obligation imposed by a rule listed in subrule 48.04(2)(b); and (b) a motion under rule 6.1.01 for a separate hearing on one or more issues in a proceeding.

[11] Despite Ms. Kovacevic’s suggestion to the contrary, a notice of readiness for pre-trial conference has been filed with the court, twice per the case history before me. This action has accordingly been set down for trial in accordance with subrule 76.09(1). A pre-trial conference took place before Master McGraw (as then titled) on February 27, 2019, but the action was not yet ready for trial scheduling. Per the case history, a further pre-trial conference was scheduled for March 6, 2020, after the second notice of readiness was filed, but that pre-trial does not appear to have proceeded.

[12] Ms. Kovacevic points to the discoveries that occurred in 2019 and the fact that the set down was not raised as a defence to her prior motions before Graham A.J. in 2022 and 2023 and Rappos A.J. in 2023. In my view, that does not matter. It does not appear that either Graham A.J. or Rappos A.J. were alerted to the set down. I have been.

[13] Since the action has been set down for trial, rule 48.04 of the Rules applies. Leave is required unless this motion falls within the exception in subrule 48.04(3)(a), namely that it is properly viewed as a motion to compel compliance with an obligation imposed by a rule listed in subrule 48.04(2)(b). None of those exemptions were argued by Ms. Kovacevic. Nevertheless, since she is self-represented, I have considered them.

[14] Ms. Kovacevic has not cited any rule under which production is sought in her notice of motion. In her factum, Ms. Kovacevic cites rule 30.10 of the Rules in submitting that it would be unjust to expect her to proceed to trial without adequate evidence that can be obtained from the defendant. Rule 30.10 does not apply to document production from Mr. Kovacevic. It deals with production of documents from non-parties.

[15] The production relief sought by Ms. Kovacevic on this motion properly falls under rule 30.06 of the Rules. That rule addresses relief available where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents. Subrule 30.06 (c) provides that the document may be ordered disclosed or produced for inspection. However, rule 30.06 is not one of the enumerated items listed in subrule 48.04(2)(b) for which leave to bring a motion is not required.

[16] None of the listed exemptions to operation of rule 48.04 clearly capture Ms. Kovacevic’s motion. In my view, the only potentially applicable exemptions are subrules 48.04(2)(b)(i) and (iii). However, on review, neither assists Ms. Kovacevic.

[17] Subrule 48.04(2)(b)(i) operates such that set down does not relieve a party from the obligation in rule 30.07 for disclosure of documents or errors subsequently discovered. However, rule 30.07 deals with mandatory disclosure of a supplementary affidavit of documents where the party comes into possession, control or power of a document relating to a matter in issue or discovers that the served affidavit of documents is inaccurate or incomplete. That is not the case on this motion.

[18] Subrule 48.02(2)(b)(iii) operates such that set down does not relieve a party from any obligation imposed by rule 31.07 relating to the failure to answer on discovery. However, rule 31.07 deals with the failure to answer a question asked during an examination for discovery by refusal, failing to provide an answer after taking a question under advisement, or failing to answer an undertaking. Although Ms. Kovacevic’s position is that her examination of the defendant on December 13, 2019 was improperly terminated, she concedes that she did not discover Mr. Kovacevic on bank statements or records of the transaction. Rule 31.07 accordingly does not apply to production of the credit card statement.

[19] Since none of the exemptions apply, I find that leave to bring this motion is required. Whether to grant leave for this motion is a discretionary decision.

[20] Ms. Kovacevic asks me to grant leave because the document is important and necessary for a fair trial hearing. I am unconvinced. Ms. Kovacevic has admittedly been aware of the dispute around the Costco grocery transaction since at least 2019. Ms. Kovacevic argues that I should consider that she was precluded from examining on bank statements and records during her discovery of Mr. Kovacevic because her discovery was interrupted and improperly terminated. Even if I accept that, Ms. Kovacevic took no steps to compel Mr. Kovacevic back to complete his examination until bringing the motion ultimately heard by Rappos A.J. in August 2023, which was dismissed. Multiple other motions had been brought in the interim.

[21] Subrule 76.09(1) of the Rules contemplates that a simplified procedure action will be set down for trial within 180 days after the first statement of defence or notice of intent to defend is filed. Rules 76.03 and 76.04 provide circumscribed discovery rights that, in my view, are designed to facilitate both a prompt discovery process and setting a simplified procedure action down within the mandated 180 days.

[22] Mr. Kovacevic was examined for discovery on December 13, 2019. A notice of readiness for pre-trial conference was filed by Ms. Kovacevic less than week later, despite her position that her examination was obstructed. There is no evidence before me of any request or efforts to continue discovery either prior to or following the exchange of amended pleadings, at least until the motion heard by Rappos A.J.

[23] As recently as December 2023, following release of Rappos A.J.’s decision on Ms. Kovacevic’s last motion, Ms. Kovacevic sought to set the action down for trial again by serving a further notice of readiness for pre-trial conference (although it does not appear to have been submitted for filing until January 2024). Per the rejection notice put before me by Ms. Kovacevic herself, civil intake rejected the filing over a technical concern, namely “Missing backpages. Rule 4” – i.e., the back pages required by subrule 4.02(3) of the Rules were not included on the documents. The fact remains that Ms. Kovacevic purported to certify to the court that this matter was ready for a pre-trial conference and trial scheduling, yet still brought this motion.

[24] In my view, based on the record before me, Ms. Kovacevic has not diligently exercised her discovery rights. Mr. Kovacevic’s examination was ended by his counsel on December 13, 2019 on the basis that it was abusive. Ms. Kovacevic did not pursue a continued examination. Instead, she represented her readiness for trial to the court by serving and filing a notice of readiness for pre-trial conference days later on December 19, 2019. Ms. Kovacevic has now represented her readiness for trial on multiple occasions by filing (or attempting to file) three notices of readiness for pre-trial conference.

[25] The record and Ms. Kovacevic’s submissions support that, when setting the action down for trial, she knew both that her examination for discovery had not been completed and that she had not received production of banking records from December 2014. In my view, there has been no material change in circumstances since the various notices of readiness for pre-trial conference were served. I am accordingly denying leave for this motion.

Does the record support the production request?

[26] The foregoing is sufficient to dismiss the motion, but I would dismiss it on the merits in any event. I have discussed relevant considerations for further production of documents in Maalouf v. Bayer Inc., 2023 ONSC 4875 at para. 17. Case law is clear that there must be evidence supporting that the requested documents are relevant and exist on a balance of probabilities before an order is made that they be disclosed. The onus is on the party requesting production to put forward evidence that the specific documents exist. Evidence that amounts to intuition, speculation and guesswork is insufficient.

[27] I would dismiss the requested production relief for three primary reasons.

[28] First, I am not satisfied that the credit card statement is relevant to any pleaded issue. I was directed to no specific paragraphs in either party’s pleading supporting relevance. The pleadings were not even included in the motion materials. Ms. Kovacevic is self-represented, so may not have appreciated that the pleadings needed to be included in her materials. I have obtained and reviewed the pleadings myself.

[29] I find no paragraph supporting relevance of the credit card statement in Ms. Kovacevic’s lengthy fresh as amended statement of claim or in Mr. Kovacevic’s statement of defence. The credit card transaction is, in my view, circumstantial evidence that speaks at best to an arguable inference about a disputed event that is not pleaded, namely the purchase of groceries, which Ms. Kovacevic intends to argue supports a further inference that her transcriptions of Skype messages (which are not formally in evidence before me, but were filed in prior motions) are authentic. A credit card statement showing the Costco grocery purchase has, at best, a semblance of relevance to the pleaded romantic relationship. However, the semblance of relevance standard for discovery was left behind long ago. The standard of relevance now applies. I do not agree that the credit card statement, assuming it exists, is relevant to any pleaded issue.

[30] I acknowledge that the bank account statement originally provided by Mr. Kovacevic was redacted and that one of those redactions was a payment transaction to AMEX on December 31, 2014. The transaction was not redacted in the version produced pursuant to Graham A.J.’s order made on December 28, 2022. However, since the credit card statement has not been demonstrated to be relevant, no relief flows from the fact that the transaction was previously redacted.

[31] Second, Ms. Kovacevic has put forward no cogent evidence that the requested credit card statement still exists and remains within Mr. Kovacevic’s possession, control, or power. Mr. Kovacevic acknowledges that he had an AMEX card, but swears that it was cancelled in approximately 2019. His affidavit further outlines that he was advised by the AMEX office that they do not maintain records beyond two years from the date of cancellation, although the details of when and how that information was obtained is not provided.

[32] In deciding Ms. Kovacevic’s prior motion for production of Mr. Kovacevic’s bank statements for December 2014, Graham A.J.’s held that “[t]he court cannot order the defendant to produce something that he swears that he does not have and with respect to which there is no evidence to the contrary”: Kovacevic v. Kovacevic, 2022 ONSC 7296 at para. 14. I agree with that statement.

[33] Mr. Kovacevic’s direct sworn evidence in response to this motion supports that he no longer has in his possession, control, or power the AMEX credit card statement or transaction details from December 2014. Ms. Kovacevic’s only evidence in support of her position that the statement or transaction details must still exist is mere speculation based on her own assumptions drawn from two sources: (i) an extract from a Scotiabank retention policy appended to her affidavit; and (ii) hearsay by way of an email from an individual identified as her Scotiabank financial advisor. Neither assists Ms. Kovacevic.

[34] The retention policy extract seems to have been obtained from the internet, but the document is incomplete and no source has been identified. The Scotiabank financial advisor’s information is in respect of Ms. Kovacevic’s own AMEX credit card and is equivocal. Specifically, in response to Ms. Kovacevic’s question about the retention policy for transaction records if she were to cancel her AMEX credit card, the advisor confirmed that statements are “usually accessible for 7 years.”

[35] Ms. Kovacevic’s speculation and hearsay evidence about the “usual” retention period for credit card statements, which has been obtained in the context of an inquiry about her own AMEX credit card, is insufficient to support a production order against Mr. Kovacevic.

[36] Third, proportionality is a factor. This is an action under the simplified procedure. Even if I am wrong on relevance and if Ms. Kovacevic’s assumption is correct that AMEX does still retain the credit card statement from December 2014, the time and effort of obtaining the statement is not proportionate to its probative value at trial. In my view, it has limited and circumstantial evidentiary value in deciding the genuine disputed issues. I am unconvinced that a finding at trial that Mr. Kovacevic purchased groceries for Ms. Kovacevic on December 29, 2014 is materially probative to a trial judge’s determinations on whether the Skype message transcriptions are authentic and whether there was, in fact, a romantic relationship between the parties.

[37] Put simply, I am unconvinced that the disputed Skype transcriptions cannot be authenticated or the alleged romantic relationship proven at trial without going to the time and expense of seeking out and producing a nearly 10-year old AMEX statement, assuming it does, in fact, still exist.

[38] For these reasons, I find that the record before me does not support a production order. Had I granted leave to bring the motion, I would have dismissed the motion in any event.

Is relief warranted to address the defendant’s concern about further motions?

[39] Mr. Kovacevic submits that this motion is an abuse of process and has expressed concerns at the time and expense of responding to Ms. Kovacevic’s ongoing motions. Although I am not prepared to characterize this motion as an abuse of process, it comes close. Ms. Kovacevic is correct that, formally, the motion seeks different relief than what was sought on prior motions. However, the relief sought in this and her prior motions is clearly related.

[40] In a motion heard by Graham A.J. on June 15, 2021, Ms. Kovacevic sought production of Mr. Kovacevic’s bank statement for December 29, 2014 in relation to the Costco grocery purchase her alleged reimbursement of it. As summarized by Graham A.J. in Kovacevic v. Kovacevic, 2022 ONSC 7296, at paras. 8-9, the motion was dismissed on the basis that, at the time, there was no pleaded allegation of any romantic relationship between the parties.

[41] Following amendment of her statement of claim, which added allegations of the purported romantic relationship, Ms. Kovacevic moved again for the same relief in a motion heard by Graham A.J. on December 19, 2022. Prior to the motion hearing, Mr. Kovacevic produced a TD Canada Trust bank account statement from December 2014, which showed a withdrawal entry on December 29, 2014, with the amount redacted. The account appears to have been a joint account with Mr. Kovacevic’s spouse. Graham A.J. accepted Mr. Kovacevic’s evidence that he had no further bank statements and dismissed the motion, subject to producing a copy of the bank statement showing the amount of the December 29, 2014 transaction: Kovacevic v. Kovacevic, 2022 ONSC 7296 at paras. 12-14.

[42] In a motion subsequently heard by Rappos A.J. on August 30, 2023, Ms. Kovacevic sought an order permitting her to examine Mr. Kovacevic’s spouse, among other relief. Per Rappos A.J.’s reasons for decision, Ms. Kovacevic’s affidavit on that motion set out her view that Mr. Kovacevic’s wife would be able to confirm whether Mr. Kovacevic lied when swearing an affidavit that, other than the joint account with his wife, he had no bank account or AMEX account from which he would have been able to make the alleged Costco purchase on December 29, 2014. Rappos A.J. ultimately dismissed the motion: Kovacevic v. Kovacevic, 2023 ONSC 7093.

[43] In each of these prior motions, Ms. Kovacevic has sought orders permitting various forms of discovery around the alleged Costco grocery purchase and reimbursement. They have each been dismissed. On this latest motion, Ms. Kovacevic has sought production of an AMEX credit card statement on the basis that the unredacted bank account transaction record disclosed an AMEX payment and a purportedly “hidden” AMEX transaction. I have rejected Ms. Kovacevic’s arguments and dismissed the motion.

[44] I am concerned with Ms. Kovacevic’s disproportionate use of judicial resources to continue discovery after having set the action down for trial, particularly in an action under the simplified procedure. Multiple motions have now been brought over the Costco groceries. In each motion, the form of relief has changed, but the target of the relief sought has remained substantially the same. It does not appear that Ms. Kovacevic will be satisfied until she finds a form of relief that gives her access to the alleged proof of her allegation that Mr. Kovacevic bought her groceries and was reimbursed for them.

[45] Ms. Kovacevic has now evinced an intention to set the action down for trial on three occasions, and has formally done so twice, yet is still bringing motions seeking to continue discovery. These motions are an inefficient use of the judicial resources in Toronto Region at a time when the court is still working to resolve the pandemic-related civil backlog. In my view, at this point, subrule 48.04(1) of the Rules must be strictly enforced.

[46] Accordingly, I am ordering that, prior to booking and bringing any further discovery-related motions (other than those expressly permitted by subrule 48.04(3)(a)), Ms. Kovacevic must obtain Mr. Kovacevic’s consent or must obtain leave of the court by way of case conference. Failure to do so may result in further motions being stayed or dismissed pursuant to subrule 2.1.02(1) as an abuse of process.

Costs

[47] Mr. Kovacevic was successful in opposing this motion and is entitled to his costs of responding to it. Ms. Kovacevic asks that any costs be reserved to the trial judge or final disposition of this proceeding. I find no basis to do so. Costs typically follow the event and there is nothing about this particular motion warranting a departure from that norm. I am in the best position to fix costs of this motion.

[48] Mr. Kovacevic seeks costs in the partial indemnity amount of $2,500, including HST. No costs outline was prepared or submitted as required by subrule 57.01(6) of the Rules. Defendant’s counsel submitted that he has been practicing for 45 years with a claimed rate of $650 per hour, which is argued to support the amount sought.

[49] Taking into account the length of the hearing and the fact that time was evidently spent preparing the responding motion record and factum, I accept that the defendant did incur costs in responding to this motion. However, the requirement in subrule 57.01(6) to prepare and submit a costs outline is mandatory, unless the parties have agreed on costs. In my view, absent a costs outline on which Ms. Kovacevic could make submissions, it would be unfair to fix partial indemnity costs in the amount requested. I have considered whether to deny the defendant any costs in light of the failure to comply with subrule 57.01(6). However, in my view, it would be equally unfair to Mr. Kovacevic to deny him costs given the history of this case and my determinations on this motion.

[50] For these reasons, I fix costs of the motion on a partial indemnity basis in the amount of $1,250, including HST.

[51] Ms. Kovacevic submits that she has been unemployed since 2020 and already has many costs and expenses that she is unable to pay, so requests that payment of any costs award be deferred to the end of trial. I am not prepared to do that. There is no evidence of Ms. Kovacevic’s employment and financial circumstances before me. Ms. Kovacevic chose to bring this motion and was unsuccessful in doing so. I am unconvinced that payment of costs should be deferred. Costs shall accordingly be payable within forty-five (45) days.

Disposition

[52] For the foregoing reasons, I order as follows:

(a) This motion is dismissed with costs payable by the plaintiff to the defendant fixed in the amount of $1,250, including HST, within forty-five (45) days.

(b) Prior to the plaintiff booking and bringing any further discovery-related motions, save and except for those expressly permitted by subrule 48.04(3)(a) of the Rules, the plaintiff shall first obtain either (i) the defendant’s consent or (ii) leave of the court to be obtained by way of case conference.

(c) This order is effective without further formality.

[53] If a formal order is required by either party, then a draft order may be submitted to my Assistant Trial Coordinator for my review and signature. If the parties cannot agree on the form and content of a draft order, then they may each submit their own proposed version for my consideration.

ASSOCIATE JUSTICE TODD ROBINSON DATE: July 26, 2024