ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Estate of Biagio Crimeli by his
No one appearing for the Plaintiffs
Litigation Administrator Josie Crimeli,
Josie Crimeli, Joseph Daniel Crimeli,
Paolo Crimeli, Gabriel Crimeli by his
Litigation Guardian Joseph Daniel Crimeli,
Giada Crimeli by her Litigation Guardian Joseph Daniel Crimeli and Giulia Crimeli by her Litigation Guardian Joseph Daniel
Crimeli
Plaintiffs
- and -
Martin Matthews, Maureen Matthews,
Gavin Fior, for the Defendant, Maureen
Pembridge Insurance Company, and
Matthews
Allstate Insurance Company of Canada
Duha Sikander for the Defendant,
Pembridge Insurance Company
Michael Bailey for Allstate Insurance Company of Canada
No one appearing for the Defendant, Martin Matthews
Defendants
HEARD: December 4, 2025
REASONS FOR DECISION
Associate Justice J. Kriwetz
Nature of the Motion
1The Defendant, Pembridge Insurance Company (“Pembridge”), the insurer of the late Biagio Crimeli, moves for an order compelling the production of transcribed statements given by the Defendant, Maureen Matthews (“Maureen Matthews”), and a non-party, Crystal Matthews (“Crystal Matthews”), to Aviva Insurance Company of Canada (“Aviva”) on August 23, 2021 (collectively, the “Statements”). The Statements relate to a motor vehicle collision which occurred on August 13, 2021.
2The Defendant, Allstate Insurance Company (“Allstate”) supports the motion.
3The Defendant, Maureen Matthews opposes the motion.
4No one appeared for the Plaintiffs at the hearing of this motion.
5The Defendant, Martin Matthews, has been noted in default and was not served with the motion and therefore did not appear.
Background
6The said motor vehicle collision involved a van and a motorcycle. Sadly, it resulted in the death of Biagio Crimeli, who was operating the motorcycle at the time. The late Mr. Crimeli’s estate and family members commenced a claim for damages on July 26, 2023.
7Maureen Matthews was the owner of the other vehicle involved in the collision and was insured by Aviva. She delivered a Statement of Defence and Crossclaim, and a Jury Notice on September 18, 2023. The Defendant, Martin Matthews, is alleged to have been the unlicensed operator of the said vehicle at the time of the collision.
8Pembridge and Allstate insured the late Mr. Crimeli. Pembridge delivered its Statement of Defence and Crossclaim and Jury Notice on September 18, 2023. Allstate delivered its Statement of Defence and Crossclaim on October 20, 2023.
9Maureen Matthews delivered an Affidavit of Documents which, in Schedule B, disclosed the existence of the Statements, each dated August 23, 2021.
10Maureen Matthews was examined for discovery on August 16, 2024. She was asked to produce the Statements but refused to do so on the grounds that they were made in contemplation of litigation and are, therefore, protected by litigation privilege.
11Though Pembridge also sought, as alternative relief, production of summaries of the Statements, the summaries have been provided. Therefore, this part of its motion will not be addressed in much further detail, except as discussed below.
The Positions of the Parties to the Motion
12Counsel for Pembridge and Maureen Matthews made submissions at the hearing, and both parties filed factums. I will briefly summarise their respective positions.
13Although it does not allege that the summaries of the Statements contain any bad faith omissions, Pembridge’s submits that the summaries themselves are not sufficient.
It states that one of the key issues in this case is whether Maureen Matthews gave Martin Matthews permission to operate her vehicle. It states that, when Maureen Matthews was questioned at examinations for discovery about the consent issue, she was unable to recall any details. Therefore, Pembridge submits that the statement given by Maureen Matthews should be produced because it contains relevant information which is not available from any other source.
14Both Pembridge and Maureen Matthews cited Kennedy v. McKenzie, 2005 18295 (ONSC), White v. 123627 Canada Inc., 2014 ONSC 2682, Campbell v.
Patel, 2024 ONSC 2996, Sangaralingam v. Sinnathurai, 2011 ONSC 1618 and Tiller v. St. Andrew’s College, 2009 32272 (ONSC) for the applicable law.
15Pembridge acknowledges that Maureen Matthews’ statement is subject to litigation privilege. It submits, however, that, based on Kennedy, litigation privilege can be overcome if the material sought is “relevant to the proof of an issue important to the outcome of the case and that there is no reasonable alternative form of evidence that can serve the same purpose” (at para. 47).
16Pembridge acknowledges that in each of White, Campbell and Sangaraligam, the court considered whether a statement provided by a witness to an insurer was producible, and, in each case, the court concluded that the statements did not have to be produced. The courts in those cases noted there was a lack of evidence supporting the assertion that the witness on discoveries was suffering from memory loss, and that counsel could have asked clarifying questions at the discoveries. Pembridge, however, submits that those cases are distinguishable from this case, because Maureen Matthews’ discovery transcript shows her difficulty in remembering details about the consent issue, and counsel’s clarifying questions did not elicit any better responses. Therefore, it argues that the litigation privilege is overcome by her poor memory (White, at para. 29).
17On the issue of proportionality, Pembridge submits that there would be limited, or no, time and expense incurred with the production of Maureen Matthews’ statement, that its production would progress the action, that the information is not available from any other source, and that the probative value of the information in her statement outweighs any prejudice arising from its production.
18With respect to Crystal Matthews’ statement, citing the White case, Pembridge submits that the “contents” of a statement made by a non-party, which are otherwise protected by litigation privilege are, nevertheless, producible where there is “no reasonable alternative form of evidence.” Once again, it submits that Maureen Matthews’ poor memory at discovery necessitates the production of her statement. Pembridge also relies on the same proportionality submissions in respect of the production of Crystal Matthews’ statement as for Maureen Matthews’ statement, as noted above.
19Maureen Matthews states that, prior to this motion, she offered to provide Pembridge with summaries of the Statements and a summary of the discrepancies between Maureen Matthews’ statement and her discovery evidence, but Pembridge advised that it intended to proceed with the motion. Since being served with the motion, Maureen Matthews has, as noted above, provided summaries of the Statements to Pembridge and maintains that the Statements themselves are subject to litigation privilege.
20Maureen Matthews submits that since Pembridge does not dispute that the Statements are litigation privileged, it has the onus to establish that the privilege should be overcome. She does not dispute the principle set out in Kennedy, as noted above, but submits that litigation privilege does not prevent questions being asked about the factual circumstances referred to in the statement. Therefore, she argues, that the “reasonable alternative” is for Pembridge to have obtained the information from her at discoveries.
21Maureen Matthews further submits that a witness’ fading memory is not sufficient to overcome litigation privilege unless the recollection is so poor that the previous statement becomes the witness’ past recollection recorded (White, at para. 29). She further submits that in the rare instances where the litigation privilege has been lifted, the Court has ordered a summary of the relevant facts contained in the statement be produced, but not its verbatim content (Tiller v. St. Andrews College, 2009 32274 at para. 15, and Budd’s BMW v. Joffe, 2023 ONSC 3896).
22In response to Pembridge’s submissions concerning her inability to recall the details regarding the consent issue, Maureen Matthews argues that the questions were either answered at the examinations or were not relevant to the consent issue and/or were directed to impugn her credibility. Furthermore, she submits that the summaries of the Statements have been produced and, therefore, the relevant facts contained therein have been provided. In addition, she states that the summaries either answer the particular questions or confirm that any lack of recollection is not because of the passage of time. She also submits, citing Campbell v. Patel, 2024 ONSC 2996, at para. 21 and Sangaralingam, at para. 32, that Pembridge could have asked further questions at her examination for discovery to attempt to clarify her answers, but did not do so, asking only one question.
23Maureen Matthews also submits that Pembridge’s intention in seeking Maureen’s statement is solely for the purpose of attempting to impugn her credibility, which is not permitted. (Sangaralingam, at para. 6, and White, at para. 28).
24With respect to Crystal Matthews’ statement, Maureen Matthews notes, once again, that she is not a party to the litigation and that Pembridge has not sought leave to examine her for discovery as a non-party, nor is there any indication in its materials that it made any attempt to obtain a statement from her. Therefore, Pembridge has not shown that there is no reasonable alternative to obtaining Crystal Matthews’ evidence.
Disposition
25In my view, Pembridge’s motion cannot succeed for the following reasons.
26With respect to Maureen Matthews’ statement, I have reviewed the questions in the transcript to which Pembridge referred and, although she was unable to recall some details, I cannot reasonably conclude that it establishes that Maureen Matthews suffered from such a poor memory that her statement has become her past recollection recorded requiring production of her statement.
27Furthermore, Pembridge had the opportunity to question Maureen Matthews at her examination for discovery, but it chose not to do so. In her reply submissions, counsel for Pembridge stated that it does not matter who asked the questions at discovery, and there was no realistic way for her answers to be clarified. I cannot accept that submission because it would require me to speculate what the evidence might have been. The fact is that the onus is on Pembridge to establish that the litigation privilege should be lifted. (Kennedy, at para. 42) In my view, Pembridge has not established that “there is no reasonable alternative form of evidence that can serve the same purpose” (Kennedy, at para. 47).
28In any event, a summary of Maureen Matthews’ statement has been produced and, therefore, Pembridge has the relevant facts contained in the statement. In my view, the production of her statement would serve no purpose other than to impugn Maureen Matthews’ credibility, which, as noted above, is not permitted.
29I now turn to Crystal Matthews’ statement. As a non-party, Crystal Matthews was not subject to examination for discovery. Nevertheless, there is no property in a witness, and Pembridge could have attempted to contact her to try to obtain information from her. There is, however, no evidence that any such attempt was made. Even if she was contacted by Pembridge, I recognise that she has no obligation to cooperate. Then in such case, it was open to Pembridge to seek an order granting it leave to examine Crystal Matthews for discovery as a non-party. Again, there is no evidence that Pembridge attempted to do so. Therefore, here also, Pembridge has not established that there was no “reasonable alternative”.
30In any event, a summary of Crystal Matthews’ statement has been produced and, therefore, Pembridge has the relevant facts contained therein.
Costs
31Both parties made submissions on costs, and both uploaded their respective cost outlines to Case Centre.
32The production of the summaries of the Statements was sought as alternative relief by Pembridge, and it submits that the motion was necessary because the Statements were provided after the motion was served. Maureen Matthews states that she offered to provide the summaries before the motion was served.
33Having considered the submissions of both parties and having reviewed their costs outlines, I am of the view that Maureen Matthews is entitled to her costs of the motion, as set out in her costs outline, in the amount of $3,653.00, inclusive of disbursements and taxes.
Associate Justice J. Kriwetz
Released: January 26, 2026
CITATION: Crimeli (Estate) et al., v. Matthews et al., 2026 ONSC 502
COURT FILE NO.: CV-23-82338
DATE: 2026-01-26
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Estate of Biagio Crimeli by his Litigation Administrator Josie Crimeli, Josie Crimeli, Joseph Daniel Crimeli, Paolo Crimeli, Gabriel Crimeli by his Litigation Guardian Joseph Daniel Crimeli, Giada Crimeli by her Litigation Guardian Joseph Daniel Crimeli and Giulia Crimeli by her Litigation Guardian Joseph Daniel Crimeli
Plaintiffs
- and –
Martin Matthews, Maureen Matthews, Pembridge Insurance Company, and Allstate Insurance Company of Canada
Defendants
REASONS FOR DECISION
Associate Justice Kriwetz
Released: January 26, 2026