Court File and Parties

COURT FILE NOS.: CV-18-00598346-0000 MOTION HEARD: 2024-11-15

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SUZANA KOVACEVIC, plaintiff AND: EMIR KOVACEVIC, defendant

BEFORE: ASSOCIATE JUSTICE R. FRANK

APPEARING: Suzana Kovacevic, self-represented plaintiff Marek Tufman for the defendant

HEARD: November 15, 2024

REASONS FOR DECISION

[1] This is a motion by the plaintiff, Suzana Kovacevic, for leave to bring a motion for production of a document from a non-party, American Express. More specifically, the plaintiff seeks leave to bring a motion for production from American Express of the defendant’s American Express credit card statement showing the purchases he made on December 29, 2014 (the “AMEX Statement”). The motion also seeks “compensation for the punitive damages caused by the abusive behavior and legal misconduct of the Defendant”.

[2] This motion follows a motion by the plaintiff heard by this court on April 24, 2024 (the “April 2024 Production Motion”). In the April 2024 Production Motion, the plaintiff moved for an order compelling the defendant to produce the very same document, the AMEX Statement, that is the target of this motion. In his reasons for decision dismissing the April 2024 Production Motion, Associate Justice Robinson held as follows:

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. [1]

[3] Associate Justice Robinson also considered submissions from the defendant that the plaintiff’s April 2024 Production Motion was an abuse of process. On that issue, he held as follows:

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.

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. [2]

[4] The plaintiff did not appeal Associate Justice Robinson’s decision on the April 2024 Production Motion. Following the release of that decision, she requested a case conference seeking, among other things, leave to bring a motion requiring American Express, a non-party, to produce the AMEX Statement.

[5] By direction of the Team Lead, Toronto Region dated August 8, 2024, the case conference was assigned to me. At the plaintiff’s request, I convened a case conference which proceeded on September 26, 2024. After hearing the parties’ submissions, I declined make an order at a case conference granting leave to the plaintiff to bring any discovery‑related motions. My endorsement included the following:

With respect to the plaintiff’s request for leave to bring a motion for production from a non-party, I explained to the plaintiff that in Kovacevic v. Kovacevic, 2024 ONSC 4228 Associate Justice Robinson denied her request for leave to bring a production motion. I explained that, in my view, Associate Justice Robinson’s decision precludes any further discovery‑related motions (other than those expressly permitted by subrule 48.04(3)), without leave of the court.

The plaintiff takes the view that her proposed motion is different from the one that was before Associate Justice Robinson and that, therefore, she is not precluded from bringing it. I explained that while I am not able to make a final determination at a case conference, the motion she describes appears to be a discovery‑related motion that is not permitted without leave, which I would not grant at this case conference. I explained that if she brings the intended motion, she will have to demonstrate why leave is not required or should be granted, and the defendant will have an opportunity to demonstrate why the motion is not permitted and why leave should not be granted. The plaintiff should be aware that if the intended motion is, at it appears to be, a discovery-related motion for which leave is required by Rule 48.04(1) of the Rules of Civil Procedure, it may be stayed or dismissed pursuant to subrule 2.1.02(1) of the Rules of Civil Procedure as an abuse of process, and the court may order her pay to costs of the motion and make any other order that it considers appropriate in the circumstances.

Based on the materials before me and the submissions made by the plaintiff, I decline to grant leave to the plaintiff to bring any discovery‑related motion.

[6] The plaintiff then brought this motion. Although I was not seized of it, the motion came before me.

A. ANALYSIS

[7] In support of her request for leave to bring a motion to compel American Express to produce the AMEX Statement to her, the plaintiff submits that:

(a) it would be unjust to expect her to proceed to trial without adequate evidence that can be obtained from the non-party, American Express; (b) it would be unfair to require her to proceed to trial without having this important evidence; and (c) leave of the court is not required to bring a discovery motion after the action is set down for trial if the defendant failed to fulfill discovery undertakings.

[8] The defendant submits that:

(a) this motion is yet another attempt by the plaintiff, contrary to court orders, to proceed with a discovery-related motion without leave; (b) the proposed motion has already been made and it was dismissed; and (c) the proposed motion ought not to be permitted on the basis of issue estoppel and because it would be an abuse of process.

(i) Does the plaintiff require leave to bring her proposed motion seeking production from a non‑party?

[9] With respect to the issue of whether leave is required, the plaintiff submits that her proposed motion seeks production of a relevant document that the defendant improperly failed to produce. She also submits that she was not able to ask the defendant about the document on his examination for discovery because the defendant’s lawyer ended the examination prematurely and improperly. She argues that, in these circumstances, she does not require leave to bring her motion.

[10] In support of her position, the plaintiff relies on Heathcote v. RBC Life Insurance Company, 2024 ONSC 1539. [3] In that case, Henderson J. held that leave is not required for a plaintiff to bring a motion relating to unfulfilled undertakings, as that is one of the exceptions provided by subrule 48.04(2)(a) of the Rules of Civil Procedure. Henderson J. also held as follows with respect to refusals:

In my view, subrule 48.04(2)(b)(iii) of the Rules of Civil Procedure should be interpreted to mean that the party who has set the action down for trial does not require leave to bring a motion to compel answers to proper questions that the opposing party has refused to answer at the examination for discovery. In that sense, I disagree with the decision in Jetport Inc. v. Global Aerospace Underwriting Managers, 2013 ONSC 2740, [2013] O.J. No. 2375. [4]

[11] In my view, Heathcote is not applicable in these circumstances, and I do not accept the plaintiff’s submissions that leave is not required for her proposed motion. Unlike the situation in Heathcote, the plaintiff’s proposed motion is not a motion to compel the defendant to answer unfulfilled undertakings or proper questions that he has refused to answer on his examination for discovery. The intended motion is a motion for production from a non-party under Rule 30.10 of the Rules of Civil Procedure. Such a motion does not fall under subrule 48.04(2)(a) of the Rules of Civil Procedure or subrule 48.04(2)(b)(iii) of the Rules of Civil Procedure, and it is not otherwise one of the exceptions under subrule 48.04(3)(a) of the Rules of Civil Procedure. Therefore, pursuant to the order of Associate Justice Robinson, the plaintiff requires leave to bring her proposed discovery-related motion.

(ii) Should the plaintiff be granted leave to bring her proposed motion seeking production from a non‑party?

[12] In my view, the plaintiff is attempting to obtain leave in circumstances where the court has already determined that leave should not be granted. The substance of this motion – whether leave should be granted to seek production of the AMEX Statement – has already been determined in the April 2024 Production Motion. The substitution of a non‑party, American Express, as the intended responding party does not alter the fact that the plaintiff is seeking leave to bring a motion to compel production of the very same document with respect to which she previously sought leave and with respect to which leave was denied in the April 2024 Production Motion. The plaintiff should not be permitted to do indirectly (obtain leave to bring a motion compelling production of a document from a non‑party) what the court has already determined she cannot do directly (obtain leave to bring a motion compelling production of the very same document from the defendant). Whether viewed from the lens of issue estoppel or abuse of process, the motion must fail.

[13] In any event, I would not grant the plaintiff leave to bring a discovery related motion in the circumstances. The plaintiff’s arguments on this motion for leave as to why the proposed production motion should be permitted appear to repeat those made to Associate Justice Robinson on the April 2024 Production Motion. In his reasons for decision, Associate Justice Robinson held as follows with respect to the issue of whether the plaintiff should be granted leave to bring a discovery‑related motion:

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.

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. [5]

[14] I concur with this reasoning and find that it applies equally in the context of this motion.

[15] I also note that the plaintiff has taken an additional step that is inconsistent with this motion by serving and then attempting to file a trial record on August 8, 2024. This was done after the release of Associate Justice Robinson’s decision with respect to the April 2024 Production Motion. I recognize that the plaintiff has attempted to explain her past efforts to set the action down for trial as having been undertaken without a proper understanding of their consequences, namely that doing so could be a bar to the April 2024 Production Motion and other the discovery‑related motions. However, the plaintiff’s recent attempt to file a trial record cannot be reconciled with Associate Justice Robinson’s reasons for decision on the April 2024 Production Motion in which he makes it clear that setting the action down for trial is a bar to further discovery‑related motions (with some exceptions that do not apply here) without leave of the court.

[16] Finally, I note that in his reasons for decision on the April 2024 Production Motion, Associate Justice Robinson concluded that, even if leave were granted, he would have dismissed the plaintiff’s production motion because she did not meet her onus of demonstrating that the AMEX Statement is a relevant document. [6] This finding, which was not appealed, is highly relevant because even if leave were granted to the plaintiff to seek production of the AMEX Statement from American Express, it has already been determined that the document is not relevant.

[17] In view of all the circumstances outlined above, I decline to exercise my discretion to grant leave to the plaintiff to bring a motion seeking an order compelling American Express, a non‑party, to produce the AMEX Statement. This aspect of the motion is dismissed.

(iii) Should the defendant be ordered to pay “compensation for the punitive damages caused by the abusive behavior and legal misconduct of the Defendant”?

[18] In her notice of motion for this motion, the plaintiff seeks “compensation for the punitive damages caused by the abusive behavior and legal misconduct of the Defendant”. At the hearing of the motion, the plaintiff made various submissions that the defendant and his lawyer have acted improperly throughout the course of this action. In my view, those submissions are unsupported by any evidence. On the record before me, I see no basis to find that there has been any misconduct by the defendant or his lawyer. This aspect of the motion is also dismissed.

B. DISPOSITION AND COSTS

[19] For the reasons outlined above, the plaintiff’s motion is dismissed.

[20] With respect to costs, the defendant shall serve the plaintiff by email with the defendant’s written costs submissions not exceeding two pages and the defendant’s Costs Outline by December 2, 2024. The plaintiff shall serve the defendant’s counsel by email with her responding cost submissions not exceeding two pages and her Costs Outline by December 9, 2024. Both parties’ costs submissions shall be filed through the online portal and uploaded to CaseLines.

DATE: November 25, 2024 R. Frank Associate J.