Category: Refusals

Snagg et al. v. Makhoul, 2024 ONSC 3735

This is a personal injury action arising from a motor vehicle accident involving a young pedestrian. The defendant brought a motion seeking an Order compelling the plaintiffs to answer refusals arising from a cross-examination of their lawyer. At its crux, the motion concerned whether the plaintiffs had to disclose and produce any applicable adverse costs insurance that could satisfy any part of a costs judgment against the plaintiffs in the action. The plaintiffs’ law firm admitted that it had an adverse costs policy with the law firm as a named insured, and that the policy applied to the plaintiffs.

Justice Roger held that the policy must be disclosed. Justice Roger applied rules 30.02(2) and 31.06(4), noting that these rules apply to any insurance policy under which an insurer may be liable to satisfy all or part of a judgment in the action, or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment. These rules are not limited to policies of insurance in the name of a party or over which a party has possession, control, or power. If a claim of privilege were successfully established for any part of the policy, the rest of the policy would still need to be disclosed.

Endale v. Parker, 2022 ONSC 2008

The defendant in this motor vehicle action brought a motion to compel the plaintiff to answer undertakings resulting from his examination for discovery, to pay the costs associated with obtaining the documents required to satisfy the undertakings, and to produce a further and better affidavit of documents. Justice Valente granted the motion, holding that any documents within the plaintiff’s “power” were to be produced at the plaintiff’s expense (save for reasonable photocopying charges which the defendant agreed to pay). Justice Valente accepted the principle that each party must fund its own case, and directed that the obligation to produce documents under Rule 30.01(1) cannot be the responsibility of an adverse party who may have better financial means to source the documents. There was no evidence before Justice Valente to support a departure from this general rule.

Murphy v. Toronto and Region Conservation Authority, 2020 ONSC 1189

The plaintiff sustained injuries as a result of an incident on a Toronto bike path and commenced an action for damages against the City of Toronto and Toronto Region and Conservation Authority. The plaintiff brought a motion to compel answers to certain refusals given at the defendants’ examinations for discovery. Master Robinson held that post-incident remedial measures can be considered in determining whether an occupier met its standard of care, and ordered production of relevant documentation. Master Robinson further held that questions regarding a party’s legal position are proper on discovery, and ordered that the defendant answer the refused legal questions.