SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-22-689092

DATE: 2026 04 01

RE: DOMINIC AIDOO, Plaintiff

- and -

VEDPRAKASH DURBEJAI c.o.b. IA&R TRANSPORT SERVICES, Defendant

BEFORE: Associate Justice Todd Robinson

COUNSEL: M. Renwick, for the defendant

V. Opara, for the plaintiff

HEARD: December 9, 2025 (by videoconference)

REASONS FOR DECISION (Motion to Compel Affidavit of Documents)

[1] This action arises from a motor vehicle accident occurring in October 2020. The defendant is alleged to have been driving a commercial truck on a highway in the same direction as the plaintiff and is further alleged to have crossed into the plaintiff’s lane causing a collision. The plaintiff seeks an aggregate of $2 million in damages.

[2] On this motion, the defendant seeks an order compelling a sworn affidavit of documents from the plaintiff containing ostensibly standard personal injury productions. The defendant asserts that, despite promises by the plaintiff to provide documents, the plaintiff has repeatedly failed to do so and instead has made only limited production.

[3] Based on the materials filed, I see no basis on which the order should not issue. I am satisfied that the limited production by the plaintiff is inadequate. It is undisputed that the plaintiff had failed to serve an affidavit of documents. Conversely, the defendant’s affidavit of documents had been served. The defendants are entitled to a proper affidavit of documents and fulsome production from the plaintiff. Partial and piecemeal production years after an action has been commenced is insufficient in civil litigation.

Analysis

[4] Pursuant to subrule 30.02(1) of the Rules of Civil Procedure, RRO 1990, Reg 194, a party must disclose every document relevant to any matter in issue that is in their power, possession or control as provided in rules 30.03 to 30.10. Pursuant to subrule 30.03(1), each party must serve an affidavit of documents “disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.”

[5] It is now trite law that relevance is determined by reference to the pleadings, which set out the issues in dispute. Documents relevant to those issues must be produced. The documents that the parties are entitled to have produced is a matter of law. It is not a matter for the exercise of discretion: Denault v Alplay, 2016 ONSC 1618 at paras. 11-13.

[6] The defendant seeks an affidavit of documents from the plaintiff, specifically including the following documents:

(a) physiotherapy records three years pre-accident to present;

(b) pre-accident WSIB file;

(c) shoulder surgery records from 2017;

(d) clinical notes and records of Dr. Ismael from three years pre-accident to present;

(e) employment file from Lassonde Beverages of Canada;

(f) income tax returns from three years pre-accident to present;

(g) psychiatry records from three years pre-accident to present;

(h) ambulance call report from December 4, 2020;

(i) clinical notes and records of William Osler Hospital from three years pre-accident to present;

(j) accident benefits file, including summary of benefits paid to date;

(k) prescription summary from 3 years pre-accident to present; and

(l) property damage file.

[7] For the most part, relevance of the foregoing documents is not genuinely disputed. The plaintiff asserted that he did not have shoulder surgery records and that Dr. Ismael was unknown. Otherwise, the plaintiff’s position was that the majority of these documents had been produced already. A decoded OHIP summary was produced. There is also evidence of partial production capturing some of the above-noted documents being made on November 21, 2025. The parties nevertheless disagree on whether and what documents remain outstanding and the need for judicial intervention.

[8] I am satisfied that, if they exist, the documents are relevant based on the pleadings, notably paras. 6-7 of the statement of claim in which the plaintiff specifically alleges physical and psychological damages.

[9] The plaintiff did not file any responding materials. There is accordingly no evidence supporting the submissions that shoulder surgery records are not within the plaintiff’s possession, control, or power or that Dr. Ismael is not known to the plaintiff. There is similarly no evidence supporting the submission that some documents are captured in other files sought by the defendant. Importantly, the defendant’s lawyer took me to the records supporting that the documents sought were referenced in or implicated by the partially redacted OHIP summary and clinical notes produced by the plaintiff. I was taken to documents referring to a rotator cuff repair and shoulder surgery. I was shown an entry reasonably supporting that the plaintiff would likely have been referred to psychological treatment. Dr. Ali Ismael is specifically listed as a doctor seen by the plaintiff prior to and shortly after the accident.

[10] The plaintiff has unquestionably breached his obligation to make production of relevant documents. The statement of claim was issued in October 2022, arising from a motor vehicle accident occurring in October 2020. When this motion was heard, the action was over three years old and the plaintiff had not taken any steps to advance discoveries. There is no evidence before me of any efforts by the plaintiff to propose a discovery plan or move the action forward. Between November 2022 and February 2024, there is a litany of correspondence from the defendant seeking production of documents. Despite promises that documents would be served dating back to May 2023, it does not appear that any documents were served until January 2024, when the partially redacted OHIP summary and certain clinical notes were provided. No further documents were provided until after this motion was brought.

[11] The plaintiff purported to serve a sworn affidavit of documents during the morning of the hearing, but it contained only a listing of the documents already produced. No new documents were included. The plaintiff’s position is that various documents have been requested but not yet obtained. However, there is no Schedule C. The plaintiff suggests that the defendant should be identifying the doctors from whom documents are sought. It is entirely unclear to me why the plaintiff does not know which doctors he saw and whether their assessments and clinical notes and records are relevant. Even if I accept that the plaintiff does not know the names of the doctors he saw, I have difficulty accepting that he cannot figure it out by making appropriate inquiries at the clinics and hospitals he attended.

[12] It is undisputed that three of the categories of documents specifically identified above have already been produced, at least in part, namely:

(a) pre-accident WSIB file;

(b) clinical notes and records of William Osler Hospital from three years pre-accident to present; and

(c) property damage file.

[13] Despite already being produced, though, they should remain in the order. The produced documents will still need to be included in the plaintiff’s affidavit of documents. I am modifying the language in the proposed draft order to add “to the extent that the documents are in the possession, control, or power of the plaintiff”, which will address for the plaintiff’s concerns that some listed documents may not exist. However, there is evidence before me supporting that they likely exist in the possession, control or power of the plaintiff, no evidence that they do not exist and, if they do exist, then they are relevant and producible. I am also adding language to account for the submission (without evidence) that psychiatric records may be contained in the hospital records to be separately produced.

[14] The defendant sought an order that the affidavit of documents be served within 30 days. The plaintiff requested 60-90 days. Since this motion has been under reserve for several months, and the plaintiff ought to have been working on obtaining relevant productions that were assuredly to be required, I am ordering an affidavit of documents, including completed Schedule C, within 20 days.

[15] The parties should be agreeing on a timetable for next steps in the action. It would be quite unfortunate if further judicial intervention is needed to complete discoveries.

Costs

[16] The defendant seeks partial indemnity costs of $4,607.69, including HST and disbursements. The plaintiff opposed those costs, arguing that no more than $1,000 should be awarded considering that the defendant was not economical in bringing the motion, particularly in circumstances where the plaintiff was clear that the motion was unopposed and was working in good faith to secure the productions.

[17] I disagree with the plaintiff’s position. This motion should not have been necessary at all, yet clearly was needed. The plaintiff breached his production obligations. But for this motion I am not convinced that the plaintiff would have complied. This is a $2 million claim. Several years into the litigation only limited production had been made by the plaintiff. The costs incurred by the defendant to bring this motion are proportionate, the hours spent and rates charged are reasonable, and the issues were important to the defendant, who is entitled to know the case to be met. The plaintiff disputed relevance of documents that were readily shown to be relevant based on the pleadings and likely in existence based on the record before me. Despite the plaintiff’s argument that a factum was not required, I found it helpful and would thereby not deny the defendant his costs of preparing it.

[18] For these reasons, I find no basis to discount the defendant’s partial indemnity costs claim and am awarding those costs.

Disposition

[19] Order to go in an amended form of the draft order submitted, as amended electronically prior to signing.

ASSOCIATE JUSTICE TODD ROBINSON

DATE: April 1, 2026