Can a plaintiff avoid attending discovery or an independent medical examination due to anxiety or an inability to respond to questions appropriately?
In Lalousis v. Roberts, 2013 ONSC 5897 (S.C.J), the plaintiff sought $4 million in two actions relating to two motor vehicle accidents. She alleged that she could not participate in oral discovery or an IME due to medical reasons, including that she was not able to respond to questions, had poor communication and attention, and discovery would increase her anxiety and depression. She sought to avoid the discovery process or have her husband act as a substitute.
Master Muir dismissed the motion. A party has a prima facie right to a full and complete discovery of an adverse party, which includes oral examination and may include a medical examination. The threshold to limit a party's right to discovery is a high one and should be ordered only in the rarest of cases. In the circumstances, an examination for discovery might be unproductive as she may not provide responsive answer, and it could cause anxiety for the plaintiff; however, there was no evidence that it would cause her permanent damage.
In order to permit the defence to fully respond to the claim against it, it makes sense that the threshold for taking away those rights is very high.
A weekly update of cases pertaining to the practice of insurance defence.
Showing posts with label examination for discovery. Show all posts
Showing posts with label examination for discovery. Show all posts
October 9, 2013
May 22, 2013
Litigation Privilege Protects Adjuster's File
When does litigation privilege arise in tort claims?
Panetta v. Retrocom, 2013 ONSC 2386 (S.C.J.)
In this slip and fall action, there was a question of whether litigation privilege applied to an investigation done by an adjuster prior to defence counsel being appointed. The plaintiff fell in a Wal-mart parking lot and an incident report was prepared. A few weeks later, an adjuster retained by Wal-mart's insurers wrote to the landlord of the premises advising it of the incident. The plaintiff sought production of the adjuster's notes, file and reports, on the basis that litigation privilege had not yet arisen at the time they were created/obtained.
Justice Quinn held that the notes were privileged:
[61] I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.
When the adjusters were retained to conduct their investigation on behalf of Wal-mart's insurer, the sole purpose of any documents they created was in anticipation of litigation. The decision provides a helpful summary of the case law regarding litigation privilege (and as an added bonus, a nice example of Justice Quinn's sense of humour).
Panetta v. Retrocom, 2013 ONSC 2386 (S.C.J.)
In this slip and fall action, there was a question of whether litigation privilege applied to an investigation done by an adjuster prior to defence counsel being appointed. The plaintiff fell in a Wal-mart parking lot and an incident report was prepared. A few weeks later, an adjuster retained by Wal-mart's insurers wrote to the landlord of the premises advising it of the incident. The plaintiff sought production of the adjuster's notes, file and reports, on the basis that litigation privilege had not yet arisen at the time they were created/obtained.
Justice Quinn held that the notes were privileged:
[61] I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.
When the adjusters were retained to conduct their investigation on behalf of Wal-mart's insurer, the sole purpose of any documents they created was in anticipation of litigation. The decision provides a helpful summary of the case law regarding litigation privilege (and as an added bonus, a nice example of Justice Quinn's sense of humour).
March 27, 2013
Videotaping Examinations for Discovery
In what circumstances will a court permit examinations for discovery to be videotaped?
J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)
This action arose out of allegations of historical sexual assault. The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues. The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial. The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse. A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Justice Hennessy allowed the motion. Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts. There was a higher than normal probability that the defendant would not be available at trial given his age and health status. The video was permitted under r. 34 rather than r. 36.
J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)
This action arose out of allegations of historical sexual assault. The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues. The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial. The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse. A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Justice Hennessy allowed the motion. Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts. There was a higher than normal probability that the defendant would not be available at trial given his age and health status. The video was permitted under r. 34 rather than r. 36.
February 6, 2013
Examination for Discovery: Attendance of Parties
When a party has selected an individual to be examined on behalf of a corporation, is another corporate representative entitled to attend to observe discoveries?
In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party. The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative. Master Glustein permitted the representative to attend. A corporation has the right to attend examinations for discovery as an independent legal entity. The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions. The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel. The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.
This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.
In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party. The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative. Master Glustein permitted the representative to attend. A corporation has the right to attend examinations for discovery as an independent legal entity. The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions. The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel. The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.
This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.
September 12, 2012
Production of Statements Made Following an Accident
A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.
In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot. The accident occurred at 8:55 p.m.. The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m. At this point, she was aware that two people had been injured. She typed up a statement detailing her recollection of what she had seen and learned of the accident while it was fresh in her mind. The statement was delivered to the adjuster later that day.
On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.
Justice Hockin held that litigation privilege attached to the document. The property manager knew there was an accident and that two people had been injured. She believed that litigation would follow. It did not matter that the defendant was not represented by counsel at the time. The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case.
Privilege was not waived. Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.
March 21, 2012
Police Personnel File Not Subject to Production
Andrushko v. Ontario, [2011] O.J. No. 3693 (Div. Ct.)
This decision will be of interest to those defending claims against police officers.
The plaintiff was suing for wrongful arrest and assault. He sought production of the officer’s personnel file on the basis that it might reveal a pattern of using unnecessary and excessive force. The Crown resisted on the basis that Part V of the Police Services Act contains a statutory prohibition against production. The motions court judge ordered production.
Part V of the Police Services Act contains the following provisions:
69.(8) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties, except at a hearing held under this Part. 1997, c. 8, s. 35.
(9) No document prepared as the result of a complaint is admissible in a civil pro-ceeding, except at a hearing held under this Part. 1997, c. 8, s. 35.
(10) No statement made during an attempt at informal resolution of a complaint is admissible in a civil proceeding, including a proceeding under subsection 64(15) or 65(17) or a hearing held under this Part, except with the consent of the person who made the statement.
...
1. Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,
(a) as may be required in connection with the administration of this Act and the regulations;
(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information re-lates.
The Divisional Court overturned the lower court decision. It held that any documents prepared as a result of a Part V complaint are not subject to production or admissible in a civil proceeding. If any documents in the personnel file were not prepared directly as a result of a Part V complaint, they would not be protected by its confidentiality provisions.
- Tara Pollitt
This decision will be of interest to those defending claims against police officers.
The plaintiff was suing for wrongful arrest and assault. He sought production of the officer’s personnel file on the basis that it might reveal a pattern of using unnecessary and excessive force. The Crown resisted on the basis that Part V of the Police Services Act contains a statutory prohibition against production. The motions court judge ordered production.
Part V of the Police Services Act contains the following provisions:
69.(8) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties, except at a hearing held under this Part. 1997, c. 8, s. 35.
(9) No document prepared as the result of a complaint is admissible in a civil pro-ceeding, except at a hearing held under this Part. 1997, c. 8, s. 35.
(10) No statement made during an attempt at informal resolution of a complaint is admissible in a civil proceeding, including a proceeding under subsection 64(15) or 65(17) or a hearing held under this Part, except with the consent of the person who made the statement.
...
1. Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,
(a) as may be required in connection with the administration of this Act and the regulations;
(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information re-lates.
The Divisional Court overturned the lower court decision. It held that any documents prepared as a result of a Part V complaint are not subject to production or admissible in a civil proceeding. If any documents in the personnel file were not prepared directly as a result of a Part V complaint, they would not be protected by its confidentiality provisions.
- Tara Pollitt
September 28, 2011
Information contained in written statement insured gave to insurer – is the insured required to provide this information at examination for discovery?
In Sangaralingam v. Sinnathurai, [2011] ONSC 1618, when examining the defendant for discovery, counsel for the plaintiff requested that the defendant provide information contained in the written statement he gave to his insurer following the motor vehicle accident. Defendant’s counsel refused to provide the statement or the contained information on the grounds that it was protected by litigation privilege.
A motion was made to a master who ruled that the defendant was not required to provide the information in the statement on the basis that the defendant had already been examined for discovery at length and the plaintiff also received a copy of the statement the defendant provided to the police following the accident. Therefore, such questioning would be solely with respect to the credibility of the defendant.
The master’s decision was appealed. The motions judge required the defendant to answer the question. The motions judge relied on the principle that questions on discovery seeking the facts of a party’s case do not offend privilege even though the source of the facts is a document over which privilege is being asserted.
There was a further appeal to the Divisional Court. Justice Herman referred to the test for when litigation privilege should be set aside as provided by Justice Ducharme in Kennedy v. McKenzie, [2005] O.J. No. 2060: where “the materials being sought are 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”.
Upon application of this test to the case at hand, Justice Herman concluded that in the course of the examination for discovery, counsel for the plaintiff had the opportunity to ask questions of the defendant that were relevant to the material issues. The defendant was co-operative and was not withholding information. Therefore, there was an alternative means available to obtain the relevant information and as a result litigation privilege should not be set aside.
Also, with respect to whether the request was directed solely to the credibility of the defendant, Justice Herman stated that it was his opinion that the sole purpose of the question being asked was to find out what the defendant told his insurer and therefore was asked for the sole purpose of credibility.
A motion was made to a master who ruled that the defendant was not required to provide the information in the statement on the basis that the defendant had already been examined for discovery at length and the plaintiff also received a copy of the statement the defendant provided to the police following the accident. Therefore, such questioning would be solely with respect to the credibility of the defendant.
The master’s decision was appealed. The motions judge required the defendant to answer the question. The motions judge relied on the principle that questions on discovery seeking the facts of a party’s case do not offend privilege even though the source of the facts is a document over which privilege is being asserted.
There was a further appeal to the Divisional Court. Justice Herman referred to the test for when litigation privilege should be set aside as provided by Justice Ducharme in Kennedy v. McKenzie, [2005] O.J. No. 2060: where “the materials being sought are 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”.
Upon application of this test to the case at hand, Justice Herman concluded that in the course of the examination for discovery, counsel for the plaintiff had the opportunity to ask questions of the defendant that were relevant to the material issues. The defendant was co-operative and was not withholding information. Therefore, there was an alternative means available to obtain the relevant information and as a result litigation privilege should not be set aside.
Also, with respect to whether the request was directed solely to the credibility of the defendant, Justice Herman stated that it was his opinion that the sole purpose of the question being asked was to find out what the defendant told his insurer and therefore was asked for the sole purpose of credibility.
March 9, 2011
Proportionality in Discovery
Master Short recently conducted an exhaustive review of the principles of proportionality in discovery. In Warman v. National Post (2011), 103 O.R. (3d) 174 (S.C.J.), the defendant brought a motion seeking production of a mirror copy of the plaintiff’s computer hard drive. The action was a libel action brought under the Simplified Procedure.
Master Short held that the new rules changing the test from “relating to” to “relevant to” a matter in issue signal a shift away from the broad and liberal discovery practice that has existed in Ontario. The default rule should start with proportionality and a recognition that not all conceivably relevant facts are discoverable in every case. Master Short adopts an eight factor proportionality test for e-discovery used in an American case (Rowe Entertainment v. William Morris):
1. The specificity of the discovery requests;
2. The likelihood of discovering critical information;
3. The availability of such information from other sources;
4. The purposes for which the responding party maintains the requested data;
5. The relative benefit to the parties of obtaining the information;
6. The total cost associated with production;
7. The relative ability of each party to control costs and its incentive to do so;
8. The resources available to each party.
Master Short held that although relevancy should remain a threshold requirement, proportionality should replace relevancy as the most important principle guiding discovery.
This decision will no doubt garner attention as a guideline for discovery. It will be interesting to see if the eight factors become the new standard for discovery in general or limited to e-discovery.
Master Short held that the new rules changing the test from “relating to” to “relevant to” a matter in issue signal a shift away from the broad and liberal discovery practice that has existed in Ontario. The default rule should start with proportionality and a recognition that not all conceivably relevant facts are discoverable in every case. Master Short adopts an eight factor proportionality test for e-discovery used in an American case (Rowe Entertainment v. William Morris):
1. The specificity of the discovery requests;
2. The likelihood of discovering critical information;
3. The availability of such information from other sources;
4. The purposes for which the responding party maintains the requested data;
5. The relative benefit to the parties of obtaining the information;
6. The total cost associated with production;
7. The relative ability of each party to control costs and its incentive to do so;
8. The resources available to each party.
Master Short held that although relevancy should remain a threshold requirement, proportionality should replace relevancy as the most important principle guiding discovery.
This decision will no doubt garner attention as a guideline for discovery. It will be interesting to see if the eight factors become the new standard for discovery in general or limited to e-discovery.
August 25, 2010
No obligation to seek clarification of a non-party witness
Arunasalam v. Guglietti Estate, [2010] O.J. No. 3303 (S.C.J.)
The question to be answered in this motion with respect to refusals on examination for discovery was this: when counsel provides a summary of the anticipated evidence of a witness, is counsel required to seek clarification or further information from that witness?
Master Short held that although counsel must provide a summary of the substance of the evidence of a non-party witness, that obligation does not extend to obtaining further particulars and clarification. If the non-party witness is unwilling to provide clarification or further information to counsel opposite, it may be appropriate to bring a motion under Rule 31.10 in order to compel discovery of the non-party.
The question to be answered in this motion with respect to refusals on examination for discovery was this: when counsel provides a summary of the anticipated evidence of a witness, is counsel required to seek clarification or further information from that witness?
Master Short held that although counsel must provide a summary of the substance of the evidence of a non-party witness, that obligation does not extend to obtaining further particulars and clarification. If the non-party witness is unwilling to provide clarification or further information to counsel opposite, it may be appropriate to bring a motion under Rule 31.10 in order to compel discovery of the non-party.
July 22, 2010
Are SABS assessors "experts"?
Those of you defending accident benefits actions may wish to review this case before your next discovery.
Babakar v. Brown (2010), 100 O.R. (3d) 191 (Div. Ct.)
The defendant insurer had the plaintiff assessed pursuant to s. 42 of the SABS to determine whether he continued to be entitled to benefits. Based on these reports, the insurer terminated benefits and the plaintiff brought an action against the insurer. During examination for discovery, the claims examiner refused to answer certain questions about the s. 42 reports on the basis that they constituted cross-examination of expert witnesses, beyond the permissible limits of r. 31.06(3).
The master ordered the questions answered and an appeal to the Superior Court was dismissed on the basis that the experts retained by the insurer were not "experts" within the meaning of r. 31.06(3).
The Divisional Court allowed the appeal. The experts were chosen by the insurer to help it make a determination under the SABS and as such, they were engaged by or on behalf of a party being examined in the action in relation to a matter in issue in the action. The discoverability of their evidence is therefore governed by r. 31.06(3).
Babakar v. Brown (2010), 100 O.R. (3d) 191 (Div. Ct.)
The defendant insurer had the plaintiff assessed pursuant to s. 42 of the SABS to determine whether he continued to be entitled to benefits. Based on these reports, the insurer terminated benefits and the plaintiff brought an action against the insurer. During examination for discovery, the claims examiner refused to answer certain questions about the s. 42 reports on the basis that they constituted cross-examination of expert witnesses, beyond the permissible limits of r. 31.06(3).
The master ordered the questions answered and an appeal to the Superior Court was dismissed on the basis that the experts retained by the insurer were not "experts" within the meaning of r. 31.06(3).
The Divisional Court allowed the appeal. The experts were chosen by the insurer to help it make a determination under the SABS and as such, they were engaged by or on behalf of a party being examined in the action in relation to a matter in issue in the action. The discoverability of their evidence is therefore governed by r. 31.06(3).
July 14, 2010
Discovery by Videoconference
Midland Resources Holdings Ltd. v. Sharif (2010), 99 O.R. (3d) 550 (S.C.J.).
In this case, the plaintiff was living in Moscow and had a medical condition and his physician recommended against lengthy airplane trips. He brought a motion seeking to be examined for discovery by videoconference.
Justice Newbould granted the motion and refused to follow a prior Master's decision that held that video conferencing should be used rarely. The Court held that given the high costs of modern litigation, videoconferencing should be encouraged. The Order was granted pursuant to r. 34.07(1)(f).
It seems that in modern litigation it is increasingly common for parties to be outside of Ontario. Videoconferencing can be useful in such cases to help decrease some of the costs in litigation, which accords with the new emphasis on proportionality and access to justice.
In this case, the plaintiff was living in Moscow and had a medical condition and his physician recommended against lengthy airplane trips. He brought a motion seeking to be examined for discovery by videoconference.
Justice Newbould granted the motion and refused to follow a prior Master's decision that held that video conferencing should be used rarely. The Court held that given the high costs of modern litigation, videoconferencing should be encouraged. The Order was granted pursuant to r. 34.07(1)(f).
It seems that in modern litigation it is increasingly common for parties to be outside of Ontario. Videoconferencing can be useful in such cases to help decrease some of the costs in litigation, which accords with the new emphasis on proportionality and access to justice.
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