Category: Examination for discovery

Lambert v. Maracle, 2019 ONSC 7003

This claim arose from a single-vehicle accident. The plaintiff suffered catastrophic brain injuries. He sued the alleged driver of the vehicle (who denied being in the vehicle at the time), as well as Aviva, his underinsured/uninsured/OPCF44 protection provider. Aviva had sworn an affidavit of documents (AOD) in July 2017 and served it in June 2019, prior to the plaintiff serving a sworn AOD. The plaintiff did not attend the discovery and brought a motion striking the Notice of Examination and Certificate of Non-Attendance. Justice MacLeod-Beliveau held that Aviva’s AOD did not comply with the Rules for two reasons: (1) It did not contain all of the documents in Aviva’s possession, control, or power at the time it was served. Aviva’s strategy of swearing the affidavit two years prior to serving it was clearly meant as a strategy to avoid disclosing documents prior to the examination for discovery. Justice MacLeod-Beliveau held that the Rules required the affidavit to be current as of the time of serving it in order to exercise the right of first discovery. (2) It did not contain all of the policy documentation. Although auto insurance is highly regulated in Ontario, and all policy documents were available to the plaintiff online, the Rules required Aviva to include copies of the policy and the endorsements in place at the time of the accident. Justice MacLeod-Beliveau ordered that the defendants all be examined for discovery first, and that the plaintiff be examined last. She noted that under the Rules of Professional Conduct, counsel for the plaintiff was not permitted to tell the plaintiff the evidence of the defendants, so Aviva’s concerns about the tailoring of evidence was not overly relevant.

Issa v. Kesserwani, 2019 ONSC 981

The defendant in this action arising from a motor vehicle accident brought a motion to compel the plaintiff to attend for further examination for discovery. Justice Corthorn granted an additional two hours beyond the remaining time to complete the discovery. She reasoned that answers to undertakings given at the plaintiff’s initial examination for discovery contradicted the plaintiff’s evidence regarding his employment history. The plaintiff was in a position to correct his answers but waited eight months to do so (and appeared only to have made the corrections due to the approaching motion date). The plaintiff had delivered an expert report valuating the income loss claim at $11,000,000 and in the circumstances it was reasonable for the plaintiff’s examination for discovery to exceed seven hours. Justice Corthorn further held that the defendant was not required to provide the plaintiff with a list of questions in advance of the continued examination.

Cormack-Terrelonge v. Fahmy Estate, 2018 ONSC 3925

The Plaintiff was unable to advise whether her injuries from previous accidents had resolved by the time of the subject MVA. Justice Sosna held that prodution of the discovery transcripts from the Plaintiff’s earlier MVA actions was necessary to assess the extent to which the Plaintiff’s current complaints overlapped with her injury complaints prior to the subject accident.

Tomson et al v. Jackson et al, 2018 ONSC 2155

The Defendants in a motor vehicle accident action sought production of the examination for discovery transcript from the Plaintiff’s action against her LTD provider. The injuries relating to her LTD claim arose from the same motor vehicle accident. Master Fortier held that the transcript was relevant and ordered that it be produced at the Defendants’ cost. However, the use of the transcript was limited to impeachment of the Plaintiff’s testimony in the MVA action.

Hopkins v. Robert Green Equipment Sales Ltd., 2018 ONSC 998

When seeking leave under Rule 31.10 to examine a non-party, the moving party must establish that there is good reason to believe that the non-party has information relevant to a material issue, that the moving party has been unable to obtain the information from the other parties to the action as well as from the non-party that he wishes to examine, and that there has been a refusal, actual or constructive, to obtain the information from the other parties to the action and the non-party.

Ghanim v. Ali, 2018 ONSC 407

Following the Plaintiff’s examination for discovery, the Defendant sought an order requiring the Plaintiff’s wife to be examined for discovery. The basis for the request was that the Plaintiff had sustained a traumatic brain injury and serious memory loss as a result of the MVA and could not answer the questions posed to him on discovery. In considering Rule 31.10, the court permitted the examination of the Plaintiff’s wife in these circumstances. The court noted that the examination of a non-party should be rarely ordered, but was appropriate in this case given the Plaintiff’s inability to answer, in any detail, questions relating to his pre and post-accident life.