2013 ONSC 1928, 2013 ONSC 1928

CITATION : Portelance v. Williams, 2013 ONSC 1928 COURT FILE NO.: 25997/97 DATE: 2013/04/11 SUPERIOR COURT OF JUSTICE – ONTARIO RE: PATRICK PORTELANCE and ROBIN ANN PORTELANCE personally, and in her capacity as Litigation Guardian to JOSEPH DAVID PORTELANCE (Plaintiffs/ Responding Parties) - and - RON WILLIAMS, ERIC GOYED and CAPTIAL CITY HELICOPTER (Defendants/Moving Parties) BEFORE: JUSTICE L. C. LEITCH COUNSEL: Karim N. Hirani, for the Plaintiffs Sandra G.

Drozd, Agent for Counsel for the Defendants/Moving Parties HEARD: March 1, 2013 ENDORSEMENT [ 1 ] The defendants, Ron Williams and Capital City Helicopter, seek leave to appeal the order of Morissette J. dated September 7, 2012 to the Divisional Court pursuant to s. 19(1)(

b) of the Courts of Justice Act , R.S.O. 1990 c. 43 as amended. [ 2 ] The moving parties rely on both grounds set out under Rule 62.02 asserting that there are conflicting decisions on the matter involved with the proposed appeal and it is desirable for leave to be granted; and, there is good reason to doubt the correctness of the order in question and the appeal involves matters of such importance that leave to appeal should be granted. [ 3 ] The order in issue was made on a motion by the moving party for productions. [ 4 ] On the motion, the plaintiffs had been seeking a further and better affidavit of documents containing a particularized

Schedule B and an order that the defendants produce a

summary of the facts, opinions and conclusions contained in the adjusters’ reports. [ 5 ] A new affidavit of documents was served prior to the hearing of the motion, included for the first time a detailed list of documents in

Schedule B. Morissette J. noted that discoveries had been held in 2002 when no

Schedule B was disclosed. She ordered the moving parties to provide a

summary of the facts, including observations, with respect to injuries and liability contained in any of the investigation or other reports listed in

Schedule B of the defendants’ affidavit of documents and to provide will say statements of witnesses they intend to rely on which are contained in

Schedule B of the defendants’ affidavit of documents. [ 6 ] The moving parties also that one of the will say statements which the plaintiff seeks is from Ron Williams who was examined for discovery. The plaintiff conceded at the hearing of this leave to appeal motion that the will say statement of Mr. Williams did not have to be produced. [ 7 ] The position of the moving parties is that what has been ordered to be produced is beyond the scope of documentary discovery and confuses the issue of oral discovery. [ 8 ] The moving parties submit that if this decision is allowed to stand, it will have a profound and widespread impact on the ability of a party to obtain particulars of

Schedule B reports and will say statements through the documentary discovery process as opposed to the oral discovery process. [ 9 ] Paragraph 39 of the factum of the moving parties precisely sets out their position on the motion: The decision of Justice Morissette establishes a new proposition of law: that a party seeking information contained within litigation privileged documents listed in

Schedule B of a party’s affidavit of documents, can do so through documentary discovery as opposed to oral discovery. The impact of the decision may be widespread and profound because the Court would now be able to compel parties to disclose the contents of their litigation privileged reports and provide such information without requiring oral discovery. This conflicts with the established practice of the adversarial process determined by the Rules of Civil Procedure and case law. The decision therefore requires appellate scrutiny and review. [ 10 ] The moving parties submit that, in essence, the plaintiff is obtaining indirect discovery through this production process and

they submit that “due process” has to be followed. [ 11 ] However, in my view, the position of the plaintiff is more compelling on this motion. The circumstances here are unique and raise a procedural issue. The moving party cannot take issue with the fact that pursuant to Rule 31.06(2) and (3) on an examination for discovery, the plaintiffs would have been entitled to the information which Morissette J. has ordered to be delivered. [ 12 ] The position of the moving parties is that the information being sought before Morissette J. should have been sought on discovery.

They note that the plaintiffs set the matter down for trial and thus represented that it was ready for trial. They note further that the motion was brought after the matter was set down for trial. [ 13 ] Morissette J. noted the unusual circumstances of the motion, the fact the discoveries had occurred in 2002, and that at that time there were no items listed under

Schedule B. I do not see the order in question as establishing a new process for obtaining the information that can be obtained on oral discovery pursuant to Rule 31. Rather, it seems to me that Morissette J.’s decision was a fact specific, practical one limited to the facts before her and does not have the widespread and profound impact which the moving parties asserts.

Morissette J. chose not to force a further discovery. [ 14 ] There had been contentious issues respecting a delay in the action and, in my view, her order reflects an expeditious and just result in the circumstances. [ 15 ] At the end of the day, the plaintiffs are getting no more information than what they are entitled to. " Justice L.C. Leitch " Justice L. C. Leitch Date: April 11, 2013