Superior Court of Justice – Ontario
Court File No.: CV-24-00095364-0000
Date: 2025-06-13
Between:
Echo Laughren, A Minor, By Her Litigation Guardian, Debra O’Brien, Plaintiff
and
Jackie Grant, The Estate Trustee of the Estate of David Grant, Defendant
Before: Associate Justice Perron
Counsel:
Hamish Mills-McEwan, Nelligan O’Brien Payne LLP, lawyer for the plaintiff
Stephen Cavanagh, Cavanagh LLP, lawyer for the defendant
Heard: June 10, 2025 at 10:00 AM
Relief Requested
- An order requiring that the plaintiff Echo Laughren be produced to be examined for discovery;
- An order requiring that the plaintiff deliver a further and better affidavit of documents, including production of: a. All notes and records of Crossroads Children’s Mental Health Centre that relate to treatment or counselling or therapy provided to the plaintiff; and, b. Clinical notes and records of all persons who have provided psychotherapy treatment or counselling or therapy to the plaintiff;
- An order granting leave to the defendant to have documentary discovery from the plaintiff’s mother, Patricia Rennie, such discovery to include: a. Filings in a proceeding commenced at L’Orignal, in the Superior Court of Justice, Family Court, as court file no. 108-2016, Rennie v. Laughren, including financial statements and any evidence relating to allegations of sexual abuse of the plaintiff by the deceased, Jeffrey Laughren; and b. Any documents in the power, possession or control of Patricia Rennie, relating to the income of Jeffrey Laughren and allegations of sexual abuse of the plaintiff by Jeffrey Laughren;
- Costs of this motion on a substantial indemnity basis.
Endorsement
This is a motion by the Defendant that originally sought all of the relief set out above. However, in their motion confirmation form, the Defendant advised that the motion was only proceeding on relief #3 above which seeks production of documents from the minor Plaintiff’s mother, Patricia Rennie, who is not a party to this litigation.
The action is being advanced by the Plaintiff through her grandmother as the litigation guardian. The Plaintiff seeks over one million dollars in damages pursuant to the Family Law Act including loss of dependency resulting from the death of her father, Jeffrey Laughren, in a fire alleged to have been caused by the negligence of the Defendant.
The documents produced to date by the Plaintiff include some records from CHEO which refer to an allegation by Ms. Rennie that the Plaintiff was molested by her late father. The Plaintiff’s mother and late father were also involved in family law proceedings in L’Orignal. The Defendant therefore seeks production of any documents in Ms. Rennie’s power, possession or control relating to the income of Mr. Laughren and the allegations of sexual abuse of the Plaintiff by Mr. Laughren.
The Defendant also sought production of the filings in the L’Orignal family proceeding. However, the Defendant abandoned that request at the outset of the hearing after I questioned whether or not I had jurisdiction to consider this request in view of Rule 1.3 of the Family Law Rules which governs access to court files in family proceedings and suggests that any such motion must be brought in the family law proceeding.
The Plaintiff opposes the motion on the basis that the family court file is irrelevant and that the motion is premature as the Defendant has exercised no discovery rights to date and should not be granted the exceptional remedy of non-party production. The Plaintiff also submits that the Defendant has not made any efforts to obtain the requested information from other sources.
The non-party, Ms. Rennie, was served personally with the Defendant’s motion record and factum but did not file any responding materials on the motion and she did not appear at the motion.
The parties exchanged draft unsworn Affidavits of documents in August 2024 and examinations were scheduled to proceed on September 9, 2024. The examinations were cancelled by the Defendant in order for this motion to be brought.
The Defendant brings this motion seeking to have all relevant productions prior to the examinations (and the trial) to ensure that the examinations are productive. The Plaintiff did produce additional documents following service of this motion, including records regarding the allegations of abuse, but did not produce any additional documents regarding Mr. Laughren’s financial circumstances. The crux of this motion is therefore for production of financial documents such as income tax returns.
The Defendant’s position is that the Plaintiff has been selective in what documents have been produced to date, including documents which could only have been produced from the litigation guardian making inquiries from non-parties such as Ms. Rennie. For example, the Plaintiff has produced the support order from the family proceeding which states Mr. Laughren’s income as of November 2017 but no other documents have been submitted from the family law proceedings.
The Defendant submits that they will have very limited ability to obtain discovery from the minor Plaintiff regarding the abuse (alleged to have occurred when the child was three years old) and none with respect to the pecuniary issues (the child’s father died when she was 6 years old). The Defendant also submits that the litigation guardian is unlikely to have the information and that the most likely source to produce the documents is Ms. Rennie.
The Law
Rule 30.10 provides that the Court may order production of a non-privileged document that is in the possession, control or power of a non-party where the Court is satisfied that the document is relevant to a material issue in the action and, it would be unfair to require the moving party to proceed to trial without having discovery of the document.
The parties do not dispute the test for production of the documents. The threshold for ordering production from non-parties is high and an order should only be made in exceptional circumstances. The parties referred me to Ontario (Attorney General) v. Stavro, para 12 and Spina v. Shoppers Drug Mart Inc., 2020 ONSC 4000, paras 115-116 which discuss the test and the factors that the Court may consider in making its determination such as fairness and necessity, whether examination of the opposing party could be adequate to obtain the information sought and the availability of the document/information from another source that is accessible to the moving party. Ultimately, the Court must balance fairness concerns associated with the moving party proceeding to trial without the information against the interest of the non-party, including concerns about privacy, inconvenience and exposure to liability.
Analysis
The Defendant’s position is that the documents sought are key documents to the litigation and that for FLA claims following a fatal accident, the income and expenses of the deceased as well as the expenses of the FLA claimant are material issues to the damage claims, including the general damages as well as the special expenses for the costs of past and future medical care. Documents regarding the allegations of abuse are also material to the overall damages including the dependency loss.
The Plaintiff takes the position that the Defendant has not established that the documents sought are relevant and that the request is overly broad and disproportionate. The Plaintiff submits that it is “entirely possible” or “can be expected” that the Defendant gets answers to its question through examinations and undertakings in the ordinary course, such that this motion is premature. The Plaintiff also submits that the Defendant has made a strategic choice to examine the minor Plaintiff rather than the litigation guardian and suggests that the guardian would be well placed to answer questions regarding her late stepson’s income and the level of support he provided to the child.
The Plaintiff also submits that Ms. Rennie should have her privacy interest respected and that obtaining the requested documents will inevitably breach her privacy, and cause her inconvenience and expense.
Turning first to the issue of relevancy and the importance of the documents in the litigation, I agree entirely with the Defendant that the documents at issue are relevant and important to the issue of damages, which is obviously a material issue in the Plaintiff’s action.
The quantum of damages sought by the Plaintiff is significant and to assess the damages, and consider what Mr. Laughren’s ability would have been to contribute towards his daughter’s care costs and expenses, it will be necessary for the Court to have documents and information regarding Mr. Laughren’s finances such as his income, assets and expenses. Documents regarding the alleged abuse are also relevant as such allegations, and/or any finding of abuse, could be a factor that the trial judge considers in assessing any damages.
Given the importance and relevance of the documents as set out above, it is also necessary for the Defendant to have the documents prior to trial in order to avoid unfairness.
When pressed on the issue of relevancy, the Plaintiff indicated that some of the documents may be relevant but others may not be and reiterated that the request was overbroad and disproportionate. The documents regarding the alleged abuse relate to a narrow issue. I do not consider that request to be overly broad or disproportionate considering the quantum of damages sought. With respect to the financial documents, the Defendant conceded in his reply submissions to narrow the scope of production to the five year period preceding Mr. Laughren’s death. As such, I find that the scope of financial productions sought is appropriate.
The question of whether the motion is premature and whether the information could be obtained through other sources, namely the upcoming discovery process, involved some speculation on behalf of both parties. While I agree with the Plaintiff that in the regular course, it is generally more appropriate to proceed to discovery prior to bringing such motions to first ascertain if the party being examined can produce the information, including by way of undertakings, there are indications in this case that this will likely not be adequate to obtain the information.
The Plaintiff is clearly opposed to producing the documents because of its opposition to this motion and the fact that the documents were not included in the Affidavit of documents despite the obligation to make appropriate enquiries with others when gathering the documents. Given the strain on judicial resources, it does not seem to me to be cost effective or practical to order the parties to proceed with examinations only for the Court to later be faced with a refusals motion. The issue is before me now and I think it best to be addressed sooner rather than later.
I also agree with the Defendant that the most likely source to produce the documents is the child’s mother given that she appears to be the one who made the allegations of abuse (from the note in the CHEO documents) and she, as the former spouse of the deceased and the party involved first-hand in the family law action, would have the most likely access to the financial documents. Again, the most practical and cost-effective way to deal with this issue would be for Ms. Rennie to produce the documents directly rather than to circuitously obtain the information through inquiries from the minor child or the Litigation guardian.
With respect to the relationship of the non-party to the parties to the litigation, this appears to be a unique situation because the non-party is the child’s mother. Although she is not the child’s litigation guardian in this matter, the Plaintiff requested that Ms. Rennie be present with the child during the examinations. This was agreed to by the parties as part of other measures that will be taken to protect the minor during examinations. I do not know the balance of the conditions that was agreed to between the parties, but in my view, another reason to order the production before the examinations would be to avoid a situation where the parties’ counsel debate the production issues, including debates about their relevancy, with the child’s mother during the examinations in the presence of the child.
Ms. Rennie has an interest to be supportive of her daughter in this litigation and she is allied with the interests of her daughter in the litigation in the sense that any damages awarded for the care of the child will obviously alleviate the mother’s obligations to financially support the child. As observed in Stavro, “Non-parties who have an interest in the subject-matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true ‘stranger’ to the litigation.”
With respect to the position of the non-party, I am not prepared to infer any prejudice to Ms. Rennie as was submitted by the Plaintiff. Ms. Rennie was personally served with the motion record and factum and chose not to deliver any responding material and did not appear at the motion to speak to any privacy concerns or prejudice that could result from producing the information. The motion was unopposed by the non-party and there is no evidence before me to support that Ms. Rennie would be prejudiced by being ordered to produce the documents. If she had any concerns, it was incumbent on her to deliver a responding affidavit or attend to speak to any issues.
With respect to any costs associated with producing the documents, I note that subrule 30.10(5) provides that the moving party is responsible for the reasonable costs incurred or to be incurred by the non-party to produce the documents.
I therefore find that the moving party has satisfied its burden on this motion and that it is appropriate to make an order pursuant to Rule 30.10 for Ms. Rennie to produce the information requested.
The motion is granted and, within 60 days, Ms. Rennie is ordered to produce any documents in her power, possession or control relating to: a) the income of Jeffrey Laughren at the time of his death and in the five-year period preceding death; and, b) the allegations of sexual abuse of the Plaintiff by Jeffrey Laughren.
With respect to costs of the motion, the Plaintiff chose to oppose the motion despite the fact that the non-party chose not to appear. As the Defendant was successful on the motion, I therefore find that it is appropriate to order costs against the Plaintiff pursuant to the general principle that the successful party is entitled to costs.
That said, as part of the relief sought was abandoned at the outset of the motion (production of the family law file) and the scope of the financial productions was narrowed during the motion, it is appropriate to reduce the quantum of costs sought by the Defendant due to the costs spent in responding to those issues. Although most of the relief sought in the Notice of motion was resolved prior to the hearing, I have not further discounted the costs sought because it appears that the motion was necessary to resolve those issues and the parties did not need to address those issues in their facta or during the hearing.
The Defendant seeks partial indemnity costs of the motion in the amount of $2,961.50. Taking into account a small reduction for the narrowing of the issues during the motion, I find that costs in the amount of $2,500 are appropriate. The Plaintiff shall pay those costs to the Defendant within 30 days.
Date: June 13, 2025
Associate Justice Perron