r v. Brown, 2010 ONSC 2534

CITATION : Sadhu v. Aviva Canada Inc., 2010 ONSC 2534 COURT FILE NO.: 05-16268 DATE: 2010-05-03 SUPERIOR COURT OF JUSTICE - ONTARIO Seeronjni Sadhu v. Aviva Canada Inc. RE: PricewaterhouseCoopers LLP BEFORE: HARRIS J.

COUNSEL: Lou Ferro, for the Plaintiff Idiko Moktassi and Christine Fotopoulos, for PricewaterhouseCoopers Pamela Quesnel, for the Defendant E N D O R S E M E N T [ 1 ] On hearing submissions from both counsel and having received their cost positions in writing, I agree with the positions on behalf of PricewaterhouseCoopers (PWC), namely that PWC was an “expert” and therefore the discoverability of its evidence was governed by Rule 31.06(3), and not Rule 30.10 as the plaintiff’s counsel contends. See Babakar v. Brown , [2010] ONSC 255(Ont.

Div.Ct.) [ 2 ] Prior to the motion and pursuant to Rule 31.06(3), PWC advised the plaintiff by letter dated March 29, 1010, that PWC was prepared to produce all documents containing factual foundational information upon which PWC based its expert findings, opinions and conclusions. PWC’s approach made the plaintiff’s motion unnecessary.

The factual foundational documents upon which PWC relied were listed in the Affidavit of Michael Iantomasi filed. [ 3 ] At the conclusion of the motion I agreed that only the documents listed in the Iantomasi affidavit, which PWC had agreed to produce in advance of the motion, should be produced by PWC, at the plaintiff’s expense. PWC now seek costs on a substantial indemnity basis in support of its submissions. [ 4 ] The plaintiff’s motion under Rule 30.10 for the production of PWC’s entire file was improperly brought against PWC.

Rather, this motion should have been properly brought against the defendant pursuant to Rule 31.06(3). It is the obligation of the defendant to disclose this material not that of the expert. However PWC was served with the plaintiff’s Notice of Motion and as a consequence PWC was forced to retain its own counsel to respond. [ 5 ] Ms.

Fotopoulos, counsel for PWC, requested plaintiff’s counsel to provide PWC with a list of documents which had already been produced by the parties in respect of PWC’s retainer so as to avoid the unnecessary costs and duplication of effort to review PWC’s entire file and produce potentially the same materials.

Counsel for PWC contend that the plaintiff withheld this information from PWC thereby forcing PWC to incur significant costs to have its own counsel spend several hours reviewing the entire contents of its file (two feet deep) only to later learn that most of the documents were already produced in the litigation and that most, if not all, were either

provided by the plaintiff or her counsel to PWC and, consequently, were already in the possession of the plaintiff. [ 6 ] In any event PWC contacted plaintiff’s counsel prior to the motion and made voluntary disclosure of the documents identified in the Iantomasi Affidavit, pursuant to Rule 31.06(3), in order to avoid further costs associated with an attendance at the motion and made an offer to settle the motion as set out in the correspondence of March 29, 2010.

PWC’s offer to voluntarily disclose all the documents containing factual, foundational information prior to the motion, the plaintiff insisted on proceeding with the motion and demanded an adjournment. Conclusion: [ 7 ] Plaintiff’s counsel chose an inappropriate Rule in which to obtain his motion. And as well, he argued his own affidavit in support of his client’s motion. The PWC was prepared to provide all documents containing factual foundational information upon which PCW based its expert findings.

This was refused by the plaintiff’s counsel. [ 8 ] This motion was completely unnecessary in the circumstances. [ 9 ] The PWC seeks to have their costs on a substantial indemnity basis totaling $12,206.00. [ 10 ] I allow costs to PWC fixed in the amount of $8,500.00 payable within 30 days. ___________________________ HARRIS J. DATE: May 3, 2010 CITATION : Sadhu v. Aviva, 2010 ONSC 2534 COURT FILE NO.: 05-16268 DATE: 2010-05-03

SUPERIOR COURT OF JUSTICE - ONTARIO Seeronjni Sadhu v. Aviva Canada Inc. RE: PricewaterhouseCoopers LLP BEFORE: HARRIS J. COUNSEL: Lou Ferro, for the Plaintiff Idiko Moktassi and Christine Fotopoulos, for PricewaterhouseCoopers Pamela Quesnel, for the Defendant ENDORSEMENT HARRIS J. DATE: May 3, 2010