Ontario Superior Court of Justice

Court File No.: CV-19-23
Date: 2025/06/09

BETWEEN:
Nancy Ward, Plaintiff
– and –
His Majesty the King in Right of the Province of Ontario as represented by the Minister of Transportation and the Corporation of the Town of Magnetawan and the Corporation of the Village of Sunridge, Defendants

Appearances:
S. Pickering, for the Plaintiff
M. Aziz, for the Defendants

Heard: May 23, 2025

Reasons for Decision
M.G. Ellies

Background

[1] The defendant, His Majesty the King in Right of Ontario, moves for an order requiring the plaintiff’s accident benefits insurer (“AB insurer”) to produce a copy of the plaintiff’s AB file relating to a motor vehicle accident which happened in 2011, roughly six years prior to the 2017 motor vehicle accident giving rise to the present action.

[2] The moving party submits that the records it seeks are relevant and that it would be unfair to require it to go to trial in this case without them.

[3] For the following reasons, I am not persuaded that this is so.

Analysis

[4] Although it has not been referred to in the moving party’s notice of motion, the relief sought can only be granted under r. 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 30.10(1) provides:

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[5] Thus, under the rule, a moving party must satisfy a two-part test. The court must be satisfied both that the documents in question are relevant and that it would be unfair to require the moving party to proceed to trial without having discovery of them. The moving party has failed to satisfy either requirement.

[6] I will begin with relevance.

Relevance

[7] The moving party submits that the AB file is relevant because the injuries sustained by the plaintiff in the 2011 accident are similar to those allegedly suffered by her in the 2017 accident. It also submits that the file is relevant because the plaintiff was granted Canada Pension Plan (“CPP”) disability benefits in 2013 based on the 2011 accident.

[8] In her submissions on behalf of the moving party, counsel referred to statements allegedly made by the plaintiff to her family doctor, to rehabilitation specialists, to a counsellor, and to a “Dr. Angel” following the accident. In these statements, the plaintiff is alleged to have said that she continued to suffer symptoms from the 2011 accident at the time of the accident in 2017. However, I have not been taken to any evidence in either the brief record filed in support of the motion or in the very voluminous record filed by the plaintiff in response to it which would support the submissions of counsel.

[9] With respect to the submission that the CPP benefits were based on the 2011 accident, while there is evidence tying the receipt of CPP benefits to the 2011 accident, there is no evidence tying either the injuries sustained in the 2011 accident or the 2013 CPP award to the injuries sustained in the 2017 accident. The entirety of the moving party’s evidence in this respect is contained in paragraph 11 of the 12-paragraph affidavit filed in support of the motion, which reads:

The plaintiff applied for CPP disability benefits in 2013 on the basis of her injuries from the 2011 motor vehicle accident. Attached here to my Affidavit and marked as Exhibit G, is a copy of a questionnaire completed by the plaintiff from the plaintiff’s CPP disability file, which states that the plaintiff’s application for CPP disability benefits dated January 16, 2013, was made in relation to the injuries sustained in the January 2011 motor vehicle accident and lists the injuries resulting from same.

[10] Nor is there anything in the affidavit evidence that would allow the court to infer a connection between the injuries sustained in the 2011 and the 2017 accidents. While there is evidence about the nature of the injuries the plaintiff sustained in the 2011 accident, there is no evidence about the nature of the injuries sustained by the plaintiff in the 2017 accident. Indeed, the evidence filed in response to the motion indicates that the plaintiff returned to work after 2013 and was working at the time of the 2017 accident.

[11] Perhaps just as importantly, the strength of the submission that the documents in question are relevant is significantly undermined by the length of time it has taken the moving party to request production of them. This action was commenced in 2019. The examinations for discovery were completed in March 2021. The moving party did not ask for production of the AB file at any time during the plaintiff’s examination for discovery.

[12] The action was set down for trial in August 2021. Thereafter, the parties attended not one, but two judicial pre-trial conferences (“JPTs”). At the second JPT, held on December 19, 2023, the JPT judge made an order on consent that the plaintiff produce a number of documents. The AB file was not among them. Instead, the JPT judge directed the moving party to bring a motion if the plaintiff refused to produce the file.[^1]

[13] The moving party made no request for the AB file until March 20, 2025, 15 months later. If the AB file is as relevant as the moving party now suggests it is, it would be reasonable to expect the moving party to have requested the file long before March of this year.

Unfairness

[14] The second prerequisite to obtaining an order under r. 30.10 is related to the first. As the Court of Appeal observed in Re the Estate of Harold Edwin Ballard, para 9, the more relevant the documents are, the more unfair it would be to require the moving party to proceed to trial without them. As I have explained, the moving party has not demonstrated much, if any, relevance.

[15] As the Court also observed in Ballard, at para. 12:

Save in the circumstances specifically addressed by the Rules, non-parties are immune from the potentially intrusive, costly and time-consuming process of discovery and production. By its terms, Rule 30.10 assumes that requiring a party to go to trial without the forced production of relevant documents in the hands of non-parties is not per se unfair.

[16] In Ballard, at para. 15, the Court of Appeal set out a non-exhaustive list of factors to consider when determining the question of fairness, depending upon the specific facts of the case. In addition to the importance of the documents, I have considered that the AB insurer is ready and appears willing to produce its file. However, I have also considered information given during the motion that the file is voluminous and the fact that it was never sought by the moving party during the discovery process.

[17] In addition to the factors listed in Ballard, I have considered the delay that might result if the order is granted. In Morse Shoe (Canada) Limited v. Zellers Inc., the Court of Appeal held that, although not specifically mentioned in r. 30.10, delay resulting from an order for production from a non-party is also relevant.

[18] The trial in this matter is scheduled for the sittings beginning on September 8, 2025, which is just months away. Both sides have retained experts. It would only be prudent to have the moving party’s expert(s) consider the relevant contents of the AB file. If that occurs, the moving party would be required to deliver a supplementary report. This would generate the need for a responding report. The need for such reports could quite possibly result in an adjournment of the trial in a case that is already six years old and involves an accident that occurred more than eight years ago.

[19] Importantly, as I advised counsel during the hearing of the motion, our times out to trial for civil matters in North Bay are exceptionally long. If this matter is adjourned, it will very likely result in a delay of at least a year, and possibly longer. This would be unfair to the plaintiff.

Conclusion

[20] For the foregoing reasons, the moving party has failed to establish either that the documents sought are relevant or that it would be unfair to require it to proceed to trial without them. The motion is, therefore, dismissed.

Costs

[21] There is no reason in this case not to adhere to the normal rule that the costs follow the event. The plaintiff was the successful party. She seeks costs in the amount of $4,008.68, all-inclusive.

[22] In fixing the costs of the motion, I have borne in mind that, until the last minute, the moving party sought not only production of the 2011 AB file, but also production of certain clinical notes and records. The moving party abandoned the second request when it realized that the plaintiff had already made its best efforts to obtain the records in question. Based on the evidence filed in support of this motion, this should have been obvious long ago. When I pointed this out to counsel for the moving party and asked her, in light of this fact, what she would seek for costs on behalf of her client in the event that the moving party was successful, she suggested that the sum of $3,500 would be appropriate. In light of that suggestion, I believe that the costs sought by the plaintiff are reasonable.

[23] Therefore, the moving party shall pay the plaintiff’s costs in the amount of $4,008.68 forthwith.

M.G. Ellies

Released: June 9, 2025

[^1]: I have assumed that the parties interpret the direction of the JPT judge as tantamount to granting leave to bring the motion under r. 48.04 because neither party has addressed that issue.