Court File and Parties

Court File No.: CV-22-00000102
Date: 2025-04-04
Court: Superior Court of Justice - Ontario

Plaintiff: Anna Goss
Defendants: Daniella Leis, et al

Before: Thomas A. Heeney

Counsel:

• Tom Durcan, counsel for the moving party, the defendant Royal Protective Services Inc.
• Cynthia Verconich and Aryn Polichuk, counsel for the responding party, the defendants Daniella and Shawn Leis

Heard: April 4, 2025 by videoconference, at London

Endorsement

Introduction

[1] I delivered reasons for judgment orally at the conclusion of argument of this motion, but indicated that brief written reasons would follow. These are those reasons.

[2] Although other relief was sought in the Notice of Motion filed by the moving party, Royal Protective Services Inc. (“Royal”), only one substantive order was ultimately sought: that the responding parties Daniella and Shawn Leis attend for their examinations for discovery on April 30, 2025.

[3] All parties consent to this order except the Leis defendants. Other counsel were present during argument to observe, but only counsel for Royal and the Leis defendants participated.

Background

[4] This action relates to a motor vehicle accident that occurred on August 14, 2019. The defendant Daniella Leis (“Daniella”) allegedly attended a concert at Budweiser Gardens in London that evening. She became intoxicated, and drove her father’s vehicle the wrong way on Queen St. (which is a one-way street), crashed into a house, and severed the gas line, resulting in a massive explosion. Although enormous property damage was caused, fortunately no-one suffered any physical injuries or death. Collective damages are in the range of $10 million. She apparently pleaded guilty to criminal charges of driving while impaired.

[5] This accident has led to a total of 9 actions in the Superior Court of Justice plus an additional 2 in Small Claims Court. There are a total of 53 defendants, and numerous plaintiffs. All actions will proceed with common discoveries and common pre-trial proceedings, pursuant to the order of Mitchell J. dated April 5, 2024.

Positions of the Parties

[6] Briefly stated, counsel for Daniella and her father, Ms. Verconich, has insisted throughout the conduct of this litigation that all other parties must be examined for discovery before she will produce her clients. Mr. Durcan took me through a great deal of correspondence where he attempted to convince Ms. Verconich that it was essential that her clients be discovered first, because Daniella, in particular, is the only one of the parties who has direct knowledge of what happened that night. He was unsuccessful.

[7] Ms. Verconich then served her Affidavit of Documents, although it was clearly deficient in certain respects. She then served notices of examination on all other parties. Having done so, she relies on r. 31.04(3) as support for the position that she is not required to produce her clients for discovery until all other parties have been examined. She refused to provide to Mr. Durcan any reason for taking this position, nor was she prepared to answer that question during oral argument before me, saying only that it was part of her “litigation strategy”.

Analysis

[8] I agree with Mr. Durcan that Daniella, and to a lesser extent her father, are the only parties with direct knowledge of the essential facts relevant to liability, such as where, when and how much she had to drink throughout the evening, who served the alcohol she consumed, where she was seated at the concert, how she came to be behind the wheel of her father’s car, whether other parties were involved in facilitating her activities that evening, how the accident happened, and so on. This is essential information for the defendants to know before they are examined for discovery themselves, and before they discover any other parties, since it will enable them to determine, among other things, which of their employees might have interacted with Daniella, who might have served her alcohol, and where and when, and whether those responsible for security might have had her in their area of responsibility at any point during the evening. This information could lead to other parties being added as parties to the action.

[9] In my view, allowing the Leis defendants to be examined last will undoubtedly result in an enormous waste of time and legal resources, given the informational vacuum the other parties find themselves in. It could well require that some parties be examined again, and might result in some parties being discovered who, once the facts are known, really didn’t need to be.

Rule 31.04(3) and Court’s Discretion

[10] Rule 31.04(3) reads as follows:

(3) The party who first serves on another party a notice of examination under rule 34.04 or written questions under rule 35.01 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise. [emphasis added]

[11] While the Leis defendants did serve their notices of examination first, this rule is subject to the discretion of the court.

[12] In Burns v. RBC Life Insurance Co., 2019 ONSC 6977, reversed in part 2020 ONCA 347 but not on this point, Perell J. observed, at para. 44, that, despite the prima facie rule that the first to serve the notice of examination has the right to examine first, the court has the discretion to order otherwise:

However, the court can in appropriate cases override the technical approach, which favours swift defendants, and the court can determine the order of discovery on the basis of what order will achieve the most fair efficient and organized conduct of the examinations for both the examiners and the examinees. The court’s discretion to determine the order of examinations has been exercised in cases where complex scheduling requirements required a departure from the rule for efficiency purposes and in cases where there exists a risk that a party will tailor its evidence. [footnotes omitted]

[13] It is, in my view, obvious that the most fair, efficient and organized conduct of the many discoveries that are to be conducted in this complex series of cases, will only be achieved by having the only parties with direct knowledge of what happened that night be discovered first.

Disposition

[14] The motion is allowed, and an order will go that the responding parties Daniella and Shawn Leis shall attend for their examinations for discovery on April 30, 2025.

Costs

[15] With respect to costs, Mr. Durcan points to the complete lack of cooperation of opposing counsel, and seeks substantial indemnity costs in the amount of $9,000. Ms. Verconich points to allegedly abusive comments that were made in the materials filed by the moving party, amounting to a personal attack on her, in arguing that there should be no costs at all or, at most, costs in the cause.

[16] In my view, the moving party is entitled to costs, as the successful party. I agree that the position Ms. Verconich took was unreasonable. However, while Mr. Durcan’s comments were not, in my view, overly offensive, they were sufficiently close to the line to limit his client’s entitlement to partial indemnity costs only. Costs on a partial indemnity scale, fixed at $7,000 all inclusive, are awarded to the moving party, payable by the responding parties within 6 months.

Thomas A. Heeney
Date: April 4, 2025