Superior Court of Justice – Ontario

Court File No.: CV-22-00680672-0000
Date: 2025-05-29

Re: Brown v. Security National Insurance Company et al

Before: Associate Justice Eckler
Heard: 2025-04-17

Counsel:
M. Rozsa appearing for the plaintiff/moving party
M. Dugas appearing for the defendants/responding parties

Reasons for Decision

Motion by videoconference.

Introduction

[1] This is a motion by the plaintiff for an order compelling the defendant Security National Insurance Company ("Security National") to produce a second representative from Security National's "Product Department" to attend a 60-minute examination for discovery to answer questions pertaining to Security National's rationale for discontinuing the 5-Year Replacement Cost Solution endorsement and replacing it with a different endorsement which removed the policy wording applicable to the plaintiff's claim.

[2] The plaintiff also seeks an order compelling Security National to answer refusals flowing from the examination for discovery of Karen Green, which proceeded on March 7, 2024. In particular, the plaintiff is seeking answers to the following two questions which were refused:

i. To advise how many policyholders had the 5-Year Replacement Cost Solution endorsement in 2020 and 2021 ("the policy statistics").

ii. To advise how profit and loss were measured or tracked for the 5-Year Replacement Cost Solution endorsement and to produce the related or specific profit and loss statement or financial statement related to the 43-S endorsement for the years of 2020 and 2021 ("the financial statistics").

[3] At the outset of this motion, both counsel confirmed that refusal (i) above had been resolved such that the only refusal to be addressed on this motion is the following:

Should the court order Security National to produce profit and loss statements or financial statements related to the 43-S endorsement for the years of 2020 and 2021?

[4] After conferring further on the scheduled date of the hearing of the motion, the parties agreed on a consent order with respect to the remaining refusal in issue, subject to the issue of costs relating to the motion.

[5] Therefore, the only remaining issues to be decided on this motion are the plaintiff’s request to conduct a further examination for discovery of the defendant corporation and the issue of costs.

Overview

[6] This is a simplified procedure action which arises out of a claim made by the plaintiff to the defendant Security National after her 2019 Range Rover was stolen out of her driveway on December 20, 2021. The plaintiff had vehicle insurance with the defendant Security National and commenced a total loss claim following the theft. The plaintiff alleges that the defendants treated her with bad faith and intentionally breached the provisions of her Policy to deny her entitlement under the Policy.

[7] The plaintiff commenced an action by way of statement of claim issued in Toronto on May 4, 2022. The sole plaintiff, Shelley Brown (“the plaintiff”), claims as against the defendants, damages in the amount of $200,000 for breach of contract and negligence as well as aggravated and punitive damages.

[8] The two named defendants are Security National, the insurer who issued the relevant motor vehicle liability policy to the plaintiff, and Aref Taherzadeh, the claims adjuster who had carriage of the plaintiff’s claim following her submission of a claim to the defendant insurer.

Facts

[9] On December 20, 2021, the plaintiff’s motor vehicle, a 2019 Range Rover Velar (“Range Rover”), was stolen from her driveway. The plaintiff reported the theft to the Toronto Police Service. The 2019 Range Rover has not been located.

[10] Following the theft, the plaintiff submitted a claim pursuant to the terms and conditions of a motor vehicle liability policy issued by the defendant Security National bearing Policy No. 00134602988 (“the Policy”), with a policy period of November 13, 2021 to November 13, 2022. The Policy covered the plaintiff’s motor vehicle for property damage, liability and theft.

[11] The 2019 Range Rover was insured under a policy with Security National which included the 5-Year Replacement Cost Solution Endorsement ("43-S Endorsement") and the "Grand Touring Solution" Endorsement. The Plaintiff paid an extra premium for both endorsements, which provide as follows:

43-S Endorsement

2.1 In return for the premium charged, we remove our right under section 7.7 of your Policy "What We Will Pay", to deduct depreciation from the value of your automobile for loss or damage caused by a peril for which you are insured under Section 7 "Loss or Damage Converges". This coverage is subject to the deductible shown on your Certificate of Automobile Insurance.

2.2 In the event of a total loss, we will pay for the replacement cost of the said automobile by another new automobile having the same specifications and equipment or, if no such automobile is available, by another new automobile of like kind and quality with similar equipment.

Grand Touring Solution Endorsement

2.1 In return for the premium charged, we will reimburse you for the reasonable expenses of renting a similar substitute automobile. This includes the reasonable expenses of taxicabs or public transportation.

2.2 The most we will pay is $5,000 per occurrence.

3.3 Your coverage ends on the date that your automobile is repaired or replaced; or we offer you a payment to settle the claim.

[12] After the 2019 Range Rover was stolen on December 20, 2021, the plaintiff began renting a vehicle immediately afterwards pursuant to the Grand Touring Solution Endorsement.

[13] The plaintiff alleges that the defendant, Aref Taherzadeh ("Taherzadeh"), who was the adjuster for the plaintiff's insurance claim, proceeded to create an arbitrary time limit on how long Security National would pay for the plaintiff's rental car. He initially set a date of January 10, 2022, before moving it to January 13, 2022.

[14] The plaintiff attempted to obtain a new Range Rover Velar but was unable to locate one. The plaintiff alleges that she advised Taherzadeh of this, and then moved swiftly to purchase another new vehicle of "like kind and quality with similar equipment" in advance of the rental coverage deadline of January 13, 2022.

[15] The plaintiff purchased a Mercedes GLE350 vehicle ("2022 GLE") with the assistance of a professional broker, who described the 2022 GLE as the "equivalent" of the Range Rover Velar. Less than 30 days after the theft of the Range Rover, the purchase was finalized on or around January 10, 2022 for the price of $100,801.00.

[16] The plaintiff sought $99,635.35 from Security National, which was the net amount after various administrative charges.

[17] The plaintiff alleges that despite the clear language of the 43-S Endorsement indicating that policyholders are permitted to purchase vehicles of "like kind and quality with similar equipment" should another new vehicle with the same specifications and equipment not be available, Security National refused to pay the plaintiff $99,635.35.

[18] The defendants’ position is that Mr. Taherzadeh provided the plaintiff with a Total Loss Replacement Report on December 31, 2021, which specified and valued the appropriate replacement vehicle, a 2022 Land Rover Velar, valued at $91,624.00.

[19] It is the position of the defendants that without any discussion with the defendants regarding either the rental coverage, claims handling or inquiries about the protocols for the endorsements, the plaintiff unilaterally purchased an entirely different vehicle, a 2022 Mercedes GLE for $99,635.00, on January 10, 2022. The plaintiff demanded reimbursement of $103,212.00 (purchase price of $99,365 net of un-reimbursable fees, plus $3,577 for tires/mats).

[20] The defendants took the position that the purchase of the 2022 Mercedes GLE did not satisfy the terms of the Replacement Cost Endorsement, and initially offered the "purchase price" under section 2.3 of the Replacement Cost Endorsement of $81,432.92. The defendants maintain that the "original purchase price" amount is a settlement amount specified in the Replacement Cost Endorsement, applying when a vehicle is "not replaced", either with a specified replacement vehicle or a vehicle of "like kind and quality".

[21] The defendants maintain that by March 3, 2022, less than 75 days after the vehicle was reported stolen, they agreed to pay the "replacement value", being the value for the 2022 Velar which was provided in the Total Loss Replacement Report, totaling $91,624.00. This settlement amount was provided to the plaintiff, who accepted the funds.

[22] Ultimately, the plaintiff’s position is that the insurance payout for the claim should be $103,212.00, whereas the defendant Security National has paid $91,624.00. The total amount at issue in this action insofar as the actual insurance claim is therefore $11,588.00.

[23] In this regard, during the hearing of the motion, both parties agreed that the amount in issue in this litigation is approximately $11,588.00 not including any damages which may be awarded for bad faith.

The Statement of Claim and The Examinations for Discovery

[24] The plaintiff commenced this action by way of statement of claim issued in Toronto on May 4, 2022.

[25] In the statement of claim, the plaintiff alleges inter alia, a system of intentional breach of contract pertaining to Security National's handling of claims involving the 43-S Endorsement. In particular, the plaintiff alleges that in order to limit its financial losses associated with the 43-S Endorsement, Security National implemented an intentional strategy wherein it coerced its policyholders into agreeing to a "settlement" based on actual cash value of their vehicle rather than replacement cost of the policyholder's vehicle by another new automobile with the same specifications, or if no such automobile is available, by another new automobile of like kind and quality with similar equipment.

[26] The plaintiff's allegations are made on the basis that shortly before the subject incident, Security National discontinued the 43-S Endorsement and replaced it with the OPCF 43 which inter alia, removed the wording: "or, if no such automobile is available, by another new automobile of like kind and quality with similar equipment".

[27] In the statement of claim, the plaintiff pleads at paragraph 53 that the claims handling by the defendants are part of a "targeted plan of Security National to avoid their financial obligations ... in order to limit their financial losses associated with the 5-Year Replacement Cost Solution coverage because it has not been a profitable line of business over time".

[28] At paragraph 55 of the statement of claim, the plaintiff alleges that the defendants "have formed a scheme whereby they attempt to unjustly profit by coercing their insureds". At paragraph 56 of the statement of claim, the plaintiff pleads that "Taherzadeh was given direction by Security National to impose arbitrary rental coverage in order to exert financial pressure on their insureds by forcing insureds to believe that they will be without a vehicle if they do not accept a 'settlement offer' based on actual cash value".

[29] At paragraph 57 of the statement of claim, the plaintiff alleges that the defendant "Taherzadeh was under the direction of Security National to attempt to resolve claims with their insureds that purchased the '5-Year Replacement Cost Solution' Coverage for actual cash value by exerting financial coercion".

[30] The defendants argue that the basis for the plaintiff’s claim for intentional breach of contract, bad faith and a basis for punitive and exemplary damages is the assertion that the claims handling described above amounts to a "scheme"/"'targeted plan". Specifically, the "scheme"/"targeted plan" allegations as asserted in the statement of claim all specify that the specific desired outcome of the alleged "scheme"/"targeted plan" is that the settlement amount would be the "actual cash value of their vehicle".

[31] The defendants maintain that at no point in the insurance claim process was the plaintiff ever offered "actual cash value" nor was an attempt ever made to have the plaintiff settle for "actual cash value".

[32] The defendants acknowledge that they did offer the "original purchase price" as a settlement for a limited period of time. However, the defendants point out that this would still be a substantially higher amount than "actual cash value" as "actual cash value" by its nature factors in depreciation, whereas "original purchase price" does not.

[33] The defendants further argue that the potential of an "original purchase price" settlement only arose after the plaintiff, with no prior warning, consultation or discussion with the defendants, unilaterally purchased an entirely different vehicle with a value more than $10,000 in excess of the replacement vehicle valuation. The defendants submit that this is inconsistent with any "scheme"/"targeted plan". In this regard, the defendants argue that for this "scheme"/"targeted plan" to operate as alleged, would require an insured to take the unilateral action of purchasing a different vehicle, without any notice, consultation or discussion with the defendant insurer.

[34] At his examination for discovery, the defendant Mr. Taherzadeh denied any "scheme"/"targeted plan" as alleged by the plaintiff. His evidence was that he strictly attempted to interpret the relevant endorsements.

Should Leave Be Granted to the Plaintiff to Examine a Second Representative of Security National?

[35] Prior to launching this motion, the plaintiff conducted examinations for discovery of the defendant Aref Taherzadeh and a representative of Security National, Ms. Karen Green, senior underwriter. The total time of these two examinations exceeded the three hour time limit provided for in Rule 76.04(2) of the Rules of Civil Procedure.

[36] The plaintiff now requests an Order that the defendant Security National be compelled to produce a second representative to attend at a further 60 minute examination for discovery.

Applicable Legal Principles

[37] The plaintiff’s action has been commenced pursuant to the simplified procedure provided for in Rule 76 of the Rules of Civil Procedure.

[38] Rule 76.04(2) states the following regarding examinations for discovery under the simplified procedure:

Despite rule 31.05.1 (time limit on discovery), no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of three hours of examination, regardless of the number of parties or other persons to be examined.

[39] Rule 76.01(2) provides that the Rules that apply to an action apply to an action that is proceeding under Rule 76 unless Rule 76 provides otherwise. The Court confirmed in Leask v. Homewood Health Centre Inc., 2023 ONSC 342, paras 38 and 39 (“Leask”), that by virtue of Rule 76.01(2), the general rules, which would include Rules 1.04, 2.03 and 3.02, apply to a simplified procedure action because they are not otherwise exempted from Rule 76.

[40] Rule 3.02 states:

(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.

(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.

[41] Rule 2.03 states that the court may, only where and as necessary in the interest of justice, dispense with compliance with any Rule at any time. Rule 1.04(1) provides that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[42] Reading the Rules as a whole, Rule 3.02 provides a basis for the Court to extend the three hour time limit to conduct an examination for discovery in a simplified procedure action, as prescribed in Rule 76.04(2). (Leask at paras. 39 and 43)

[43] Rules 31.03(1) and (2), govern how a corporation may be examined for discovery and provide as follows:

WHO MAY EXAMINE AND BE EXAMINED

Generally

31.03 (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8).

On Behalf of Corporation

(2) Where a corporation may be examined for discovery,

(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and

(b) the examining party may examine more than one officer, director or employee only with the consent of the parties or the leave of the court.

[44] Rule 31.03(4) sets out the test for leave to examine a second representative of a corporation and provides as follows:

Requirements for Leave

(4) Before making an order under clause (2)(b) or (3)(b), the court shall satisfy itself that,

(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience; and

(b) examination of more than one person would likely expedite the conduct of the action.

[45] In Fischer v. IG Investment Management Ltd., 2016 ONSC 4405 Justice Perell confirmed that the test under rule 31.03 for an additional examination for discovery is strict and orders to examine a second representative are rarely granted. In this regard, Justice Perell stated the following at paras. 40 to 44:

The test for an additional examination for discovery is strict and orders to examine a second representative are rarely granted: Scintilore Explorations Ltd. v. Larche, [1995] O.J. No. 719 (Gen. Div.) at paras. 50 and 51; Infinium Capital Corp. v. AB 2000 Software Corp., supra at para. 8; Fortini v. Simcoe (County), supra; Little v. Ellerbrock, supra at para. 21.

To show that an examination for discovery has been unsatisfactory so as to entitle a party to a second examination, it is necessary for the examining party to demonstrate that the examined party’s answers, including answers to proper questions to follow up on undertakings, have not been answered or that answers are incomplete, unresponsive, evasive, or ambiguous: Little v. Ellerbrock, supra at para. 21; Westcoast Transmission Co. v. Interprovincial Steel & Pipe Corp., supra; Mullen v. Canada Life Assurance Co., supra.

In Fortini v. Simcoe (County), supra at para. 15, Justice Healey emphasized that the willingness and ability of the examined party to inform himself or herself is the critical matter in determining whether the examining party has been deprived of a meaningful examination for discovery. Justice Healey stated:

15. In my view, the principles set out in the cases reviewed in ING remain of critical importance when addressing the question of whether leave should be granted to examine a second person under Rule 31.03(2) or (3). These principles offer guidance on how the court should assess whether "satisfactory" answers have been given. It remains important to assess the willingness and ability of the deponent to provide the information sought, and to ensure that an evaluation of the quality of the evidence provided is measured by an objective standard, as opposed to the examiner simply being dissatisfied with the answers provided. It may be the case that it is only when these considerations lead to the conclusion that the party is likely to be deprived of a meaningful discovery that the court would go on to consider the other requirements of Rule 31.03(4).

The fact that the examined party may have had to give undertakings to answer questions does not lead to the conclusion that an additional representative should be produced for discovery: Baylis Estate v. Canada (Attorney General), supra at para. 10; Silvercreek II Ltd. v. Royal Bank of Canada, 2014 ONSC 5994, para 9. A second examination will be permitted only where the party seeking the examination is able to establish that the representative produced for discovery had not informed himself or herself or was unable to inform himself or herself on the issues in dispute between the parties: Metropolitan Toronto Condominium Corp. No. 979 v. Ellis-Don Construction Ltd. (1997), 37 C.P.C. (4th) 57 (Ont. Master); Abitibi-Price Inc. v. Serada (1984), 43 C.P.C. 217 (Ont. H.C.J.); Westcoast Transmission Co. v. Interprovincial Steel & Pipe Corp., supra; Bank of Toronto v. Megaffin, [1946] O.W.N. 771 (H.C.J.).

It is not enough that the evidence is important to the examining party, who must, rather, demonstrate that to refuse another examination is to deprive him or her of a meaningful discovery because the person being examined cannot or will not satisfactorily inform himself or herself about the material issues: Famous Players Development Corp. v. Central Capital Corp., 6 O.R. (3d) 765 (Div. Ct.); Baylis Estate v. Canada (Attorney General), supra; Din v. Melady, 2010 ONSC 4865, paras 13-14; Little v. Ellerbrock, supra at para. 21.

Analysis

[46] The defendants produced Ms. Karen Green, a senior underwriter employed by the defendant Security National to be examined for discovery on March 7, 2024.

[47] On November 7, 2023, prior to Ms. Green’s examination, plaintiff's counsel communicated to defence counsel that he required Security National's representative to have, inter alia, direct knowledge regarding Security National's underwriting manuals / directives / memorandum of the 43-S Endorsement, as well as the financial health of the 43-S Endorsement.

[48] In response to the request, counsel for defendants sent correspondence to plaintiff’s counsel on November 15, 2023, which provided as follows:

We will present Karen Green as the discovery representative. Ms. Green is a Senior Underwriter. She has described her role as: "From high value items (homes, vehicles, jewelry etc.) I perform risk assessments on certain types of risk to determine if it would be a profitable risk for us to take on. I review error and omission requests, VOID requests." She reports to an Underwriting Manager. Considerable care [sic] in selecting Ms. Green as an appropriate representative for this discovery.

[49] In response to the November 15, 2023, email, counsel for the plaintiff responded as follows on November 17, 2023:

Ok, please provide your availability in Jan/Feb 2024 for this discovery. We reserve our right to examine an alternate corporate representative should it become known through discovery of Ms. Green that she does not have knowledge of the matters in issue.

[50] The plaintiff argues that Ms. Green had next to no knowledge on the 43-S Endorsement, aside from some surface level information on its purpose and that it was clear that she was not prepared to answer relevant questions at her examination for discovery.

[51] The plaintiff argues that Ms. Green admitted that her only involvement with the 43-S Endorsement was selling it to policyholders in her former role and she admitted that she had not been involved in developing/evolving the 43-S endorsement, rating the 43-S endorsement, tracking the profitability of the 43-S endorsement, and pricing the 43-S endorsement. Furthermore, she had no information to provide with respect to why the 43-S endorsement was discontinued, including whether it was due to poor profitability.

[52] The plaintiff argues that Ms. Green’s lack of knowledge and/or preparation regarding these topics prevented plaintiff's counsel from asking numerous questions relevant to the claim, including:

i. How did the 43-S endorsement perform profitability-wise in 2020 and 2021
ii. Was its profitability impacted by the term "the cost of replacing the automobile with a new automobile of the same make and model, similarly equipped."
iii. What other factors contributed to its profitability?
iv. Why was it discontinued?
v. Why was it replaced with the OPCF 43?
vi. What led to the wording change in the OPCF 43?

[53] The plaintiff further argues that the defendants have not produced any documentation since Ms. Green's examination clarifying the above-noted queries such that the plaintiff remains without any information on the rationale for discontinuing the 43-S Endorsement and replacing it with a revised endorsement that removed the provision at the heart of this action. The plaintiff highlights that Ms. Green admitted at her discovery that the appropriate individual to answer the above-noted queries would be somebody from Security National's Product department.

[54] The plaintiff’s position is that this information relating to the 43-S Endorsement is integral to the plaintiff's claim, as it will demonstrate that Security National had incentive to limit its losses on the 43-S Endorsement by adjusting claims in the manner in which the plaintiff's claim was adjusted. The plaintiff argues that without a further, second examination for discovery, she will be deprived of a meaningful discovery if she is not provided an opportunity to ask a qualified individual questions of the nature outlined in paragraph 52 above.

[55] The plaintiff also argues that a further examination is required as a meaningful examination of Ms. Green did not occur due to her counsel's persistent interruptions which did not allow for a meaningful examination for discovery. In total, 20 questions were either refused or taken under advisement.

[56] The defendants argue that it is not reasonable to require yet another representative of the defendant Security National to appear for further discoveries. The defendants highlight that the plaintiff has maintained the claim against the defendant Aref Taherzadeh, despite confirmation/admission from the defendant Security National that Mr. Taherzadeh was an employee acting within the course of his employment at all material times. The defendants assert that in maintaining the claim against Mr. Taherzadeh the plaintiff was provided with an opportunity to examine (1) Mr. Taherzadeh, a claims handler, and (2) Karen Green as a representative for Security National as a senior employee in underwriting.

[57] The defendants do not dispute that the plaintiff has the right to examine both defendants. However, they argue that if the court were to grant the plaintiff’s request for a further examination for discovery of a separate Security National representative, this would result in the plaintiff being provided with an opportunity to conduct three separate examinations with three separate employees of Security National, which the defendants argue is excessive, particularly in the context of this action which has been commenced pursuant to the simplified procedure.

[58] The defendants argue that plaintiff’s counsel did not contemporaneously during the examination for discovery of Ms. Green or at any time before bringing this motion, raise any argument, issue or concern about Ms. Green's viability as an appropriate witness for Security National. Instead, plaintiff’s counsel conducted a complete examination for discovery, exceeding the simplified procedure time limit of three hours and only raised the alleged inadequacy of Ms. Green as a discovery representative well after having completed her examination for discovery.

Disposition

[59] In my view, based on the evidence in the record before me, I am not satisfied that the criteria for Rule 31.03(4) have been satisfied. While Ms. Green may not have had personal knowledge sufficient to answer all questions asked of her at her examination for discovery, it was open to plaintiff’s counsel to ask that Ms. Green undertake to find answers to questions that she may not have had the ability to answer at her examination for discovery.

[60] In Fischer v. IG Investment Management Ltd., 2016 ONSC 4405, para 27, (“Fischer”) Justice Perell confirmed that “the practice of the profession, the rules and the case law about the practice and procedure envision that when the person being examined does not personally have knowledge of a matter in issue, then that person must undertake to provide the information by making inquiries of the persons with the knowledge”. Justice Perell further confirmed that simply because a witness does not have comprehensive personal knowledge sufficient to answer all questions asked at an examination for discovery does not result in a second examination being required. In this regard, Justice Perell stated the following:

For present purposes, the point to elucidate to the Plaintiffs is that under Ontario’s model for examinations for discovery, it does not follow from the circumstance that the person being examined for a party does not have comprehensive personal knowledge of the party’s actions and omissions and it does not even follow from the circumstance that the person being examined has no personal knowledge of the party’s acts or omissions, that there will be more than one examination for discovery. Thus, in the immediate case, that Mr. Shin did not have comprehensive personal knowledge or that Ms. DeWeerd had no personal knowledge about their respective party’s involvement with market timers, does not mean that others with personal knowledge should be examined for discovery. In the immediate case, the Plaintiffs have no cause for complaint because of the lack of comprehensive personal knowledge of Mr. Shin or Ms. DeWeerd, both of whom met and went beyond the call of duty in preparing for the examinations for discovery and in undertaking to provide information. (Fischer, at para. 28)

[61] I have reviewed the transcript of Ms. Green’s examination for discovery. During the examination for discovery, plaintiff’s counsel canvassed Ms. Green’s knowledge of the issues raised in the pleadings, including her knowledge of the Endorsement at the beginning of her examination. These questions relating to Ms. Green’s knowledge of the issues raised in the pleadings are outlined at pages one through to 15 of the transcript.

[62] The questions that plaintiff’s counsel refers to as support for Ms. Green being an inadequate witness are, inter alia, questions 41-47 which can be found at pages 13-15 of the discovery transcript. After these questions were asked of the witness, the examination continued for a total of 139 questions and 68 pages. At no point after the series of questions now cited as a concern by the plaintiff (questions 41-47) did plaintiff’s counsel suggest that Ms. Green was inadequate as a witness, or even express concern in this regard. Indeed, plaintiff’s counsel continued with the examination of Ms. Green for significant time after, including additional time beyond the three hour limit applicable to Rule 76 simplified procedure matters.

[63] At no point prior to, or during the examination for discovery of Ms. Green, did the plaintiff request that a different Security National representative be produced. The request to examine a second and different witness was not raised by plaintiff’s counsel until the plaintiff’s notice of motion was delivered for this motion.

[64] Plaintiff’s counsel opted to proceed with and complete the examination for discovery of Ms. Green, taking up all the remaining examination for discovery time under the simplified procedure pursuant to the Rules. Defence counsel also permitted plaintiff’s counsel to exceed the three hour time limit, with an opportunity to be granted more indulgence for the time limit if needed.

[65] In my view, an examination of the relevant discovery transcript does not support the plaintiff’s contention that a meaningful examination of Ms. Green did not occur due to her counsel's persistent interruptions.

[66] Moreover, the following exchange confirms that counsel for the defendants offered to provide “leeway” in terms of the time required to complete the examination for discovery:

Question 95: MR. SERPA: How are we doing on time? We had a lot of discussion between you and I, Matthew. I suspect there will be another___
MR. DUGAS: We've got a lot of discussion. We're at 11 o'clock. We got a bit of a late start. I want to, you know, give you leeway. If you go until, like, I'd say -- like, can you finish up at 11:30?
MR. SERPA: Yes. Absolutely. Yes, no problem.

[67] It was stated on the record that Ms. Green, in addition to her personal experience, had conducted inquiries and investigation to educate herself with respect to the information that the plaintiff had requested that she be able to speak to.

[68] Ms. Green was able to answer many of the questions asked during her examination for discovery. To the extent that she did not have personal knowledge of certain information, counsel for the plaintiff was live to the issue that undertakings may be required to be given to address such questions.

[69] In this regard, the relevant transcript from Ms. Green’s examination for discovery confirms counsel’s discussions relating to the plaintiff’s request and the defendants’ agreement to make enquiries of others in order to answer certain questions. One such exchange is as follows:

MR. DUGAS: It sounds like the product department's probably the closest definitive answer to that or our best guess about what the department -- that is. This is -- I would like to point out that this is a bit of an unusual claim in Discovery, and we've produced Ms. Green, and part of the plan for producing Ms. Green is that we have asked her to go in and look into the substance of the claim as we understand it and what we believe is relevant, even if that's outside the scope of her personal experience. There's been some investigation looking into it. Especially about whether there's any communication, guidance, from the underwriting department or other departments to the claims department.

MR. SERPA: I guess then the remainder of my questions are all financial in nature in terms of trying to understand the profit and loss of this 43-S endorsement, specifically trying to understand why Security National no longer offers the five year replacement cost as of June of '21, so I think it's fair to say, Matthew, that I'll have to ask those questions to you, and Karen can listen in, and you guys can take those questions back, perhaps to the product department or the executive level, whoever deals with it, because we're not really able to pin that down right now. So, I'll ask them by way of undertaking. Is that fair?

MR. DUGAS: Yes, and I may be refusing some of them, but yes, I'm agreeable to proceeding and to explore this -- that topic in this way.

[70] When Ms. Green did not have an answer to a question, counsel to the plaintiff made an undertaking request, as evidenced by the four undertakings, 12 questions taken under-advisements and two refusals that arose from the 85 minute examination for discovery.

[71] Therefore, in the immediate case I find that the moving party has not established that the representative produced for discovery had not informed herself or was unable to inform herself on the issues in dispute between the parties. Moreover, the evidence in the record before me does not support the conclusion that Ms. Green did not or cannot satisfactorily inform herself about the material issues.

[72] In this regard, leading up to this motion, plaintiff’s counsel wrote to defence counsel on March 21, 2025, and requested responses to the various undertakings, questions taken under advisements and questions which were refused. Plaintiff’s counsel advised that unless answers were provided by March 27, 2025, the plaintiff would proceed to serve motion materials on March 28, 2025. The letter also stated "we will no longer be seeking relief for your client to produce a second representative as part of the motion. We are reserving our right to bring an additional motion on this issue depending on what the undertakings/refusals say".

[73] In response to this correspondence, defence counsel sent a letter to plaintiff’s counsel on March 26, 2025 providing answers to all of the undertakings, the questions taken under advisement and the two refusals. Answers to the four undertakings, the two refusals and the 12 questions taken under advisement were all answered with some answers having been provided pursuant to rule 34.12(2) of the Rules of Civil Procedure. Some of the answers were provided noting that best efforts had been undertaken to provide answers.

[74] In response to the defendants’ letter of March 26, 2025 providing answers to various questions, plaintiff’s counsel advised in an email dated March 27, 2025 that "we are reviewing and will provide you with respect to the upcoming motion shortly". Ultimately, no further update was provided and the plaintiff served motion materials for this motion on April 7, 2025 requesting an order that answer to refusals be provided and an order that a second representative of Security National be produced for a 60 minute examination for discovery.

[75] The evidence of the defendants is that counsel for the defendants has consulted extensively with the litigation handler at TD General Insurance Company ("TD Insurance"), the parent company of the defendant Security National, with respect to making best effort attempts to answer not only the undertakings, but also the questions which had initially been refused and taken under advisement.

[76] When these answers were provided and plaintiff’s counsel provided further information suggesting that perhaps further enquiries could be made, the defendants confirmed that they would undertake further and ongoing efforts to provide answers to all of the questions which had now been answered, either with answers or confirmation that best efforts had been undertaken to provide answers. In this regard, the evidence in the record before me indicates that defence counsel has confirmed that efforts to provide answers to questions asked at the examinations for discovery include the defendant Security National or TD Insurance taking the following steps:

(a) searching any readily accessible information available within TD Insurance that could be expected to have this information,
(b) multiple internal meetings, consultations and calls involving multiple different employees and departments to enlist others to assist in obtaining this information, and
(c) additional searches and investigation.

[77] In the immediate case, I am not satisfied that satisfactory answers respecting all of the issues raised cannot be obtained from the proffered witness Ms. Green without undue expense and inconvenience and I am not satisfied that a further examination will likely expedite the conduct of the action. I am also satisfied that the answers provided by Ms. Green to undertakings and questions which were initially refused and taken under advisement demonstrate a willingness and ability to provide the information which was sought at her examination for discovery.

[78] Moreover, in my view a further examination will result in unfairness to the defendants. In this regard, in the immediate case, it would be unfair to the defendants to permit the plaintiff to conduct a full examination of one Security National representative without expressing any concerns or reservations during the examination while exceeding the simplified procedure time limit, only to suggest after the fact that the discovery representative was inadequate and that a further additional examination is required. It should be noted that the three hour time limit was exceeded through the examinations of both defendants given that Rule 76.04(2) provides a three hour time limit regardless of the number of parties or other persons to be examined.

[79] In terms of the issues of the time and expense associated with a further examination, I am also mindful of the fact that this is a simplified procedure action. The Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, para 254 highlighted the policy objectives behind the simplified procedure as follows:

…the rule is designed to get the parties to trial with a minimum of delay and costs. Thus, one of the key objectives of the simplified procedure rule is to limit the extent of pre-trial proceedings and to bring the parties to an early trial conducted pursuant to tailored rules. That is why discovery is restricted, cross-examination on affidavits and examination of witnesses on motions are not allowed, and the procedure at a summary trial is modified to reduce the length of the trial.

[80] In addition to the plaintiff not meeting the criteria for rule 31.03(4), considering the goals of the simplified procedure, I do not find that the evidence in the record before me supports the conclusion that a further Security National representative should be examined in order for the interests of justice to be served. In Keedi v. The Wawanesa Mutual Insurance Company, 2021 ONSC 3650, para 11, the Court confirmed that the Court should not undermine the important objectives of the Rules of the simplified procedure by extending the time limit without legitimate reasons for doing so.

[81] Considering the criteria of Rule 31.03(4), and given the quantum in dispute and taking into account the principles of proportionality as well as the overarching goals of the simplified procedure regime which are to limit the extent of pre-trial proceeding, contain costs, and to bring the parties to an early trial pursuant to tailored rules, I find that there is no basis to order that a second representative from Security National attend at a further examination for discovery in light of the evidence in record before me.

[82] The plaintiff’s motion seeking an order compelling the defendant Security National to produce a second representative from Security National's "Product Department" to attend a 60-minute examination for discovery is hereby dismissed.

Costs

[83] I encourage the parties to settle costs of the motion. If the parties cannot agree on costs, written costs submissions shall be exchanged. The parties may submit written costs submissions as follows: The plaintiff’s costs submissions shall be delivered by June 5, 2025. The defendants shall deliver any responding costs submissions by June 12, 2025. Reply submissions, if any, shall be delivered by the plaintiff by June 16, 2025. Costs submissions shall not exceed three pages excluding costs outlines, any offers to settle and case law.

[84] Once served, all costs submissions shall be submitted by email directly to my Assistant Trial Coordinator, Gobiga Amalakumar with proof of service. Unless exchanged and submitted in accordance with the above, the parties shall be deemed to have agreed on costs.

[85] Once the issue of costs has been determined, the parties may submit a draft order to my Assistant Trial Co-Ordinator which is reflective of the wording in these reasons for decision.

Associate Justice Eckler
Date: May 29, 2025