NANCY JOHNSON PLAINTIFF - v. -, 2023 SKKB 61

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 61 Date: 2023 03 22 Docket: QBG-SA-00328-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: NANCY JOHNSON PLAINTIFF - and - SERINA WITCHEKAN, PETER JANZEN AND TAMAS SZABO (CARRYING ON BUSINESS AS “SUPERIOR DIESEL SERVICES”) DEFENDANTS Counsel: Michael W. Owens for the plaintiff Steven A. Haichert for Serina Witchekan and Peter Janzen/SGI Teague H. Pushor for SGI Heather J.

Laing, K.C. for Tamas Szabo/Superior Diesel Services ___________________________________________________________________________ FIAT MORRALL J.

March 22, 2023 ___________________________________________________________________________ Introduction [ 1 ] This matter requesting the production of documents under Rule 5-15 of The Queen’s Bench Rules arises out of an automobile accident claim by a pedestrian Nancy Johnson, against the driver of the truck that hit her, Serina Witchekan, the registered owner of the vehicle that hit her, Peter Janzen, and Tamas Szabo, the owner of Superior Diesel Services, the business that allegedly illegally modified the truck which modifications are said to have partly contributed to the collision.

[ 2 ] Ms. Johnson wants SGI to produce the registration ownership history of the vehicle and other documents which she believes may indicate who may have modified the truck should Superior Diesel Services not have performed the illegal modifications. SGI declines to do so on privacy and relevance grounds. They describe this request as a fishing expedition. To stretch the line of this fishing analogy to the breaking point, Ms.

Johnson believes there is a 6-pound rainbow trout just on the edge of her hook while SGI submits that all there is to reel in would be an old radial tire, a 40-year old stubby beer bottle and perhaps a sad looking minnow. Background Facts [ 3 ] A statement of claim issued on March 19, 2021 by Ms. Johnson alleges that on September 10, 2020, she was struck while crossing the street by a 2013 Dodge Ram 2500 [Truck] operated by Ms. Witchekan and owned by Mr. Janzen. It further alleges that the Truck was modified by Mr.

Szabo’s business, Superior Diesel Services, such that it no longer complied with The Vehicle Equipment Regulations, 1987 , RRS c V-2.1 Reg 10 , and these modifications caused and/or contributed to Ms. Johnson’s injuries. [ 4 ] A statement of defence was filed on behalf of Ms. Witchekan and Mr. Janzen on June 1, 2021 (although incorrectly dated May 31, 2020) stating that neither defendant was aware that the modifications were illegal as they were made before Mr. Janzen purchased the Truck.

They further alleged they had met the necessary standard of care and denied the losses suffered. [ 5 ] A statement of defence was filed by Mr. Szabo on June 7, 2021 in which he admits his company installed various parts and accessories on the Truck in March of 2016 at the request of a different owner and stated said owner was responsible for ensuring that any modifications were in compliance with the applicable laws and regulations. Further, he indicated that the tint that was applied to the Truck’s windows occurred at a tint shop but not at Mr.

Szabo’s business. [ 6 ] A consent order was issued on October 29, 2021 whereby the Saskatoon Police Service, subject to certain limitations, agreed to provide Ms.

Johnson the documents and records contained in the September 10, 2020 accident investigation file as a number of infractions were issued by the police as against the owner and driver of the Truck. [ 7 ] On February 11, 2022, a certificate of compliance was granted by the dispute resolution office to all parties with respect to mediation. [ 8 ] On August 26, 2022, the plaintiff filed a notice of application requesting permission to amend the statement of claim pursuant to Rule 3-72 with the primary change being the addition of SGI as a defendant.

SGI was eventually made aware of this application. [ 9 ] While that application will not be decided in this ruling, in opposition to the amendment application the affidavit of Michael Kline sworn September 29, 2022 was filed which averred as follows: 1) On March 14, 2016, the Truck underwent a stage 2 inspection as a first-time registered vehicle in Saskatchewan and the Truck passed the inspection.

This inspection was conducted by a certified inspection station, not SGI; and 2) SGI does not have any records that indicate the Truck underwent any subsequent inspections prior to the accident on September 10, 2020. [ 10 ] On December 5, 2022, a notice of application was filed on behalf of the plaintiff pursuant to Rule 5-15 seeking production of all the registrations past and present for the Truck as well as any inspections records, repair estimates, damage claims, repair reports, safety inspections and safety certificates that pertain to the Truck. [ 11 ] In response to this application, SGI filed the affidavit of Jennifer Bell sworn February 16, 2023 which describes in detail the nature of the documents that would be generated and received as part of the automobile collision claims process. [ 12 ] The supplemental affidavit of Carly Graham sworn February 17, 2023 was filed on behalf of Ms.

Johnson, although I found it contains irrelevant material for the purposes of this application related to e-mails between counsel. [ 13 ] While both notices of application were set to be heard on the chambers date, I ordered that only the request for documents proceed for efficiency reasons. Should the plaintiff wish to proceed on the other application, she shall be allowed to do so upon giving three clear days’ notice to the other parties involved, including SGI.

Issue [ 14 ] The sole issue to determine in this matter is whether SGI should be compelled to produce the documents requested in the plaintiff’s application of December 5, 2022. The Law [ 15 ] Rule 5-15(1) states as follows: Obtaining documents from others 5-15

(1) On application, and after notice of the application is personally served on the person affected by it, the Court may order the production of a document from a person who is not a party at a date, time and specified place if:

(

a) the document is in the possession, custody or control of that person; (

b) there is reason to believe that the document is relevant to any matter in issue; and (

c) the person who has possession, custody or control of the document might be required to produce it at trial. [16] The Rule is a common-sense proposition. The Court reiterates the Rule as follows in Barth v Barth, 2021 SKCA147: 37 For present purposes, it is sufficient to note that there are a number of Queen's Bench decisions indicating, as per the text of Rule5-15 itself, that a party seeking disclosure of documents from a third party must satisfy three criteria: (

a) the document is in thepossession, custody or control of the third party; (

b) there is reason to believe that the document is relevant to any matter in issue; and (c)the person who has possession, custody or control of the document might be required to produce it at trial. See, for example: SupynukEstate v Hagen, 2015 SKQB 145 at para 16, 455 Sask R 106; S.T. v J.T., 2015 SKQB 249 at para 8, 66 RFL (7th) 90. A furtherconsideration noted in the case law is whether the documents being sought can be obtained by other means or whether they are alreadyin the possession of one or more parties to the litigation.

See: Supynuk Estate at para 17; Ceapro Inc. v Saskatchewan, 2004 SKQB 406at para 16, 268 Sask R 117; Krislock v Krislock (1998), (SK KB), 173 Sask R 255 (QB) at para 13. [17] In this matter, SGI admits that the documents sought by Ms. Johnson are in their possession and that they couldproduce them at a trial. With no application to amend yet made with respect to adding SGI as a party, none of the parties to the litigationpossess these documents. Further, there is no issue of public interest immunity or the like that would operate to prevent the admissibilityof these documents.

The issue is a determination of relevance.

As well, I will deal with the determination of whether the documentscould be obtained by other means later in my analysis. [18] In terms of the recommended procedure in these types of applications, with former Rule 236 being thepredecessor of Rule 5-15, the Court in Courchaine v Saskatchewan Government Insurance, 2007 SKCA 106, 286 DLR (4th) 755[Courchaine], states as follows: 27 As part of an application for an order under Rule 236, the party seeking such an order should, in its notice of motion andsupporting affidavit, provide a breakdown of the information it seeks into at least the following three categories: (

i) those which have adefining characteristic such as a date, the name of the maker, the holder of the document, or nature of the document (i.e., a photograph ofareas in Ms.

Courchaine's house where stolen property was found by the police officers); (ii) documents identifiable by the class to whichthey belong, such as medical reports and statements by witnesses related to an issue in the civil action; and (iii) information of a generalnature that may relate to matters in issue in the civil action. 28 The first category, for the most part, will involve information that will not require a great deal of effort on the part of the strangerto identify or to determine whether it relates to matters in issue raised by the applicant.

Thus, the applicant need not address at lengthhow the specific document relates to the civil action. 29 The second category, by its very nature, requires the applicant to be more specific on how the particular class of document relatesto a matter in issue. For example, not all statements obtained by police officers during the course of investigating a crime will relate tothe matters in issue in the civil action.

Thus, the applicant is required to outline the kind of event or item it thinks will relate to its civilaction. 30 With respect to the third "catch all" category, the applicant should clearly outline how the document or information sought relatesto a specific matter or matters in the civil action and thereby avoid attracting the "fishing expedition" metaphor referred to in Baltzan v.Baltzan (1980), (SK KB), 3 Sask. R. 145 (Sask. Q.B.), or turning the process into a public inquiry of the kind noted inOntario (Attorney General) v. Ballard Estate (1995), (ON CA), 129 D.L.R. (4th) 52, 26 O.R. (3d) 39 (Ont.

C.A.). [19] SGI has indicated that they have not provided the sought documents to the Court under seal as they believe themto be irrelevant ab initio. [20] In determining what is legally relevant according to Rule 5-15, the following excerpt from the decision ofTomcala v Input Capital Corp., 2022 SKQB 89, provides some concise information regarding this topic: 8 I start with the general concept of relevance.

In Canadian Pacific Railway Company v Saskatchewan, 2022 SKQB 28 [CPR],Kilback J. explained the criterion of relevance as follows, at paras. 141-142: [141] In order for evidence to satisfy the criterion of relevance, it must have "some tendency as a matter of logic and human experienceto make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence": White, [R vWhite, 2011 SCC 13 at para 37, [2011] 1 SCR 433] para 36. [142] In R v Watson (1996), (ON CA), 108 CCC (3d) 310 (WL) (Ont CA) at para 33 the Ontario Court of Appealdescribed the concept of relevance in more detail: 33 ...

"Relevance ... requires a determination of whether as a mater [sic] of human experience and logic the existence of 'Fact A' [theevidence] makes the existence or non-existence of 'Fact B' [the material fact in issue] more probable than it would be without theexistence of 'Fact A.' If it does then 'Fact A' is relevant to 'Fact B'.

As long as 'Fact B' is itself a material fact in issue or is relevant to amaterial fact in issue in the litigation then 'Fact A' is relevant and prima facie admissible." 9 A modern approach to a question of relevance is articulated by Wilkinson J. in S.B.R. v L.L.R., 2018 SKQB 177 [S.B.R.]. There,she explained there are several important considerations when determining if the contents of a document are relevant, including a needfor what she called "some degree of genuine relevance". She said, at para. 31:

[31] Under the new Queen's Bench Rules , broad relevance is no longer the governing test when the parameters of disclosure are in dispute. Proportionality, common sense, fairness and some degree of genuine relevance are the considerations under the modern approach . Where relevance is uncertain or marginal, proportionality considerations such as litigation efficiency and cost control may be the deciding factor: see Canadian National Railway Co. v Clarke Transport , 2013 SKQB 394 , 432 Sask R 63. [Emphasis added] 10 See also: May v Saskatchewan Power Corporation , 2021 SKQB 299 at para 19 .

Position of the parties [ 21 ] The plaintiff argues that this application is brought as there is no other reasonable method to determine who may have installed the various modifications on the Truck that is a central aspect to her litigation. She believes it is unjust for the real perpetrator to hide behind alleged privacy interests so as to evade civil liability. SGI, as the public insurer, should ensure justice for innocent parties who were injured as a result of individuals who disobeyed the vehicle regulations that SGI has a vested interest in properly enforcing.

She states that she is not conducting a fishing expedition as the material requested, while of unknown benefit, are specific documents that could be essential in revealing the identity of the individual who illegally modified the Truck. To deny her access to these documents would put her in an impossible position as she would be foreclosed from seeking the only documents that would provide her with the information necessary to crystalize her lawsuit. [ 22 ] On the other hand, SGI submits that this application is entirely a fishing expedition as Ms.

Johnson has not explained or provided any affidavit evidence demonstrating how the records will establish the nature of the modifications or that the modifications caused or contributed to her losses other than simply as a result of the negligence of the operator. Further, they state that Ms.

Johnson has not established how the previous owners could be held liable in this action and therefore these records would not be relevant to an issue in this action as prior owners cannot be held responsible for the plaintiff’s non-economic losses pursuant to s. 41.16(6) of The Automobile Accident Insurance Act , RSS 1978, c A-35 [ AAIA ]. Therefore, any information provided would violate the privacy of the non-parties who will have no say in their information potentially being disclosed. Analysis [ 23 ] In reviewing the documents requested in the context of the affidavit material provided by the defendants Ms.

Witchekan and Mr.

Janzen along with SGI, I find there is a basis to believe that SGI would be in possession of the registration history of the Truck as they have admitted they possess this documentation. [ 24 ] However, given the affidavit evidence of Michael Kline, there is no basis to believe any vehicle inspections occurred after the initial vehicle inspection of March 14, 2016 and there is no evidence to counter this uncontroverted assertion. [ 25 ] Further, based on the affidavit of Jennifer Bell which was prepared for this application, I find there is no reason to believe that claims information, if it exists, has a rational connection to establishing the identity of a party that may have modified anything on the Truck.

There is no basis to believe that the Truck was in an accident aside from the September 10, 2020, incident and I find it is clear that damage estimates and the like have a very tenuous connection to the plaintiff’s objective of determining who modified the vehicle. There are too many factual building blocks that need to be established before the plaintiff can start asking for material, which on its own, will not logically contain the information the plaintiff hopes to obtain. Therefore, at present, I find claims information is not relevant and therefore clearly “fishing expedition” type of information.

Again, this is especially so given that the plaintiff has not proffered any evidence to establish a basis for her claim beyond the statement of claim or to counter the clear affidavit evidence of Jennifer Bell that there is some logical basis to believe the claims information will lead to the discovery of material related to the provider of modifications to the Truck. [ 26 ] Therefore, I find that I only need to analyze the request for the registration history to determine whether it is relevant. [ 27 ] I find the registration history clearly belongs in the second type of documents outlined in Courchaine where the plaintiff can outline the class of document but will be unable to detail the specifics contained therein as that knowledge would be solely within the purview of SGI. [ 28 ] It is obvious that the plaintiff wishes these records so she can ask the prior owners where they may have taken the Truck to obtain the modifications, specifically the tint in the windows.

Should the plaintiff find the business or individual that tinted the windows, they would almost certainly be added to this lawsuit. However, there is no requirement that these owners provide any details at all to the plaintiff so this exercise may be all for naught. It is possible that the plaintiff may discover the analogous 6-pound rainbow trout but also possible that they simply reel in the sad looking minnow.

Each are possible and I am unable to determine whether one possibility is more likely than another. [ 29 ] Before ultimately determining the question of relevance, I must first examine whether the documents can be obtained by other means. [ 30 ] I find that there is no other realistic way to obtain these records without interfering with the timeliness of the litigation or obtaining the most accurate record of ownership for two reasons. [ 31 ] Firstly, while the plaintiff may question the defendant Mr. Szabo about which tint shop the last owner obtained the impugned tint for the Truck and Mr.

Szabo may provide the answer, this step may bifurcate questioning and unduly lengthen the process depending on the answer given, potential undertakings and a subsequent need for the plaintiff to conduct more investigation or add a party. This is inefficient, costly and contrary to the Foundational Rules. It would be much fairer to all parties for the plaintiff to obtain this information prior to further potentially lengthy procedural steps so as to efficiently guide their further undertakings in the litigation process.

[32] Secondly, even if the plaintiff was able to obtain some information from Mr. Szabo, it may not be a completeanswer as there may be tinting or other modifications performed by other registered owners that the defendant Mr. Szabo knows nothingabout. It again seems to be more efficient and fairer to all parties that the plaintiff receives the means to attempt to obtain an answer withthe most complete information available. This also could have a benefit for the defendant Mr. Szabo should the plaintiff receive morecogent evidence on the originator of the alleged illegal modifications.

This would be in the interests of justice for all parties. [33] That said, I take into account the defendants’ argument that there cannot be claims against prior owners andthere is no direct guarantee of obtaining documents that will turn out to be relevant if the registrations are produced.

However, themodern approach to determining relevance is more nuanced than simply looking for a direct correlation between one fact and another. [34] With respect to the issue of claims, I agree with SGI’s contention that given the plaintiff has not provided anyevidence that her economic losses are in excess of the benefits she has received as defined by s. 41.15(2) of the AAIA, no request toobtain documents under that rubric would be relevant. They also note that prior owners cannot be sued for non-economic loss as they donot fit the definition of a “third party” under s. 40(

b) of the AAIA. While that is correct, under s. 40(b)(ii) of the AAIA a third partyincludes “a maker or supplier of motor vehicle parts” and under s. 40(b)(iv) a person or commercial entity that “is engaged in thebusiness of, or whose business includes, a motor vehicle garage, repair shop or service station”. SGI argues that the plaintiff has notprovided any evidence that SGI possesses documents that will definitely show who completed those modifications.

However, I findwhile it is correct that there is no such definitive evidence, there is certainly the potential for the plaintiff to obtain such evidence byobtaining that necessary evidence through the building block of the registration certificates. [35] The issue becomes whether potentially relevant documents fit within the definition of “relevant” under Rule 5-15.

As stated in the case law, proportionality, common sense, fairness and some degree of genuine relevance are the properconsiderations using the modern approach. [36] The decision in Supynuk Estate v Regina (City), 2015 SKQB 145, 475 Sask R 106, provides some guidance inevaluating relevance in a similar situation where the plaintiffs could not be precise in their request as they had no means to ascertain thecontents of the document. The court stated as follows: 33 The second step concerns the relevancy of the documents.

While Chief Hagen concedes that some of the documents may berelevant to the civil action, he contends the scope of the request, as framed, is overly broad and consists of a bare assertion of relevancyunsupported by affidavit evidence. The broad nature of this request, the RPS submits, has the patina of a fishing expedition. 34 I disagree with the fishing expedition analogy proffered by the RPS for several reasons. First, the plaintiffs have a very clear andobvious disadvantage inasmuch as they have not had the opportunity to review the RPS file.

While they have surmised what the filecontains, they cannot truly know its contents. Some latitude for lack of precision should be accorded. 35 Second, the claim was not brought in a vacuum; the Coroner's Report offers many insights. It tells us, for instance, that the RPSdid its own investigation focussing on weather, road conditions, mechanical and human factors.

The Coroner also tells us that a thoroughexamination of the "road evidence" was conducted by the RPS collision analyst and that photographs were taken. 36 With regard to the bus itself, the Coroner concluded the bus failed to slow down, skidded to the right, the brakes locked, and therear left brake was not operational. The Coroner received evidence about prior knowledge of problems with bus #548 from other busdrivers and the City's response to their complaints.

The Coroner says these statements reveal that multiple complaints had been lodgedabout the brakes on bus #548 with multiple "vehicle defect reports" filed. 37 The Coroner's Report must be assessed against the allegations contained in the statement of claim. For instance, the plaintiffs allegethe City failed to properly maintain the braking system on bus #548 when it knew or should have known the components were notfunctional and excessively worn.

In the alternative, the plaintiffs allege the bus was operated at a speed unsafe for the road conditionsand that the operator improperly applied the anti-lock brake system. 38 Finally, the road evidence gathered by the RPS on the day of the incident is self-evidently directly related to the claim. I am alsosatisfied that evidence gathered with respect to the City's prior knowledge of mechanical problems with bus #548 conveyed to it by othertransit bus drivers and the City's response to it is directly relevant to the claim.

Statements and evidence gathered with regard to how bus#548 was operated on the day in question also appear to be directly relevant to the civil action. 39 Although I found the relevancy criteria met in a general sense, some of the itemized categories are clearly not relevant.

This isdiscussed below in relation to each category. [37] While the issue in the case at bar is different, I find that this decision suggests that the fact that the individualwho requests a document cannot precisely define its characteristics does not necessarily lead to an inexorable conclusion of irrelevance.In other words, the inability to draw an automatic direct link does not preclude relevance. The fact that there are some indicia that adocument could potentially be relevant can satisfy the relevance requirement.

I am careful to say that this is not an automatic conclusionas it involves determining all the factors associated with the modern approach. [38] I note the following conclusion of the Court in Chrustie v Touche Ross Ltd. (1984), (SK KB),36 Sask R 255 (QB), in a matter involving potentially relevant documents, where the Court stated as follows: 6 The documents in the hands of Touche Ross & Company are described as accounting records of Citi-Management Inc. byMr. Surgeson. (See Exhibit "A" to his affidavit of August 29, 1984).

That may or may not make them relevant to the plaintiff's case butsince Touche Ross & Company are not a party to the action, no other means of discovery is available to the plaintiff. It therefore seemsto me that the plaintiffs should have the opportunity to inspect these records and I intend to so order as follows… [39] Given the fact that potential relevance is not a bar to being “relevant” under Rule 5-15, I will assess what issought taking into account proportionality, fairness and common sense, along with the nature of the record.

[ 40 ] While registration records are not publicly accessible, a document which outlines which vehicle an individual owns is inherently a much less sensitive and private document than health records which may outline prescriptions taken or a police record which describes criminal involvement. Driving a car is almost always a public activity. Anyone can see an individual driving on a public roadway whether that person is going to the doctor, a hair replacement clinic or their favorite vegan fusion restaurant.

Further, there is tracking data available in most new cars and many people buy cameras to monitor their driving activity and others on the road. When individuals install modifications to their vehicle, it is usually done for the purposes of being seen. In any event, driving with modifications is a publicly visible activity. There is nothing inherently private about owning a vehicle. [ 41 ] That said, I do not discount the legitimate privacy interests of vehicle owners.

In a world full of Kijiji and text scams resulting in citizens having to blot out their licence plates as they attempt to sell their vehicles, it is clear that there are concerns that must be balanced. I am also aware that a driver of a vehicle is not necessarily an owner. I also realize that the owners will not have a say in these court proceedings in terms of the disclosure of their personal information. [ 42 ] However, I also note that there are many things that an owner is liable for in terms of rules and regulations pertaining to driving, whether or not they are the driver, including

summary offence tickets and parking matters. Driving is a privilege not a right. [ 43 ] In the factual matrix of the case at bar, I find that if any disclosure is ordered, the registration records should only disclose the name and address of the prior owner of the Truck. This individual could lawfully simply refuse to talk to the plaintiff, her counsel or anyone acting on her behalf. The individual may not legitimately know the answer to any query.

Therefore, when examining the proportionality requirement, I find that the privacy interest breached is not especially intrusive. [ 44 ] I will next examine the matter from a common sense, fairness and genuine relevance perspective.

Given that disclosing this information in this fact scenario has a real possibility of assisting the plaintiff in meeting her case and assisting with justice being done as a result of crystalizing the parties responsible, I find that the relevance criteria are met and all the registration records for the Truck must be disclosed by SGI. [ 45 ] That said, the documents shall be first provided to the Court in a sealed state so that I may review them to ensure that only the necessary personal information is disclosed, and the matter is vetted properly before disclosure may occur.

Once I review and vet the documents, I will provide them to all the parties in their vetted state. [ 46 ] As the ultimate utility of the requested documents has yet to be determined, I will order that costs of this application be in the cause. J. J.P. MORRALL