) ) ) PIERA ROSE PANETTA v. ) Maurice Benzaquen,, 2013 ONSC 2386

CITATION : Panetta v. Retrocom et al., 2013 ONSC 2386 St. Catharines Court File No.: 51941/10 Date: April 25, 2013 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) ) PIERA ROSE PANETTA and ) Maurice Benzaquen, PAUL ANTHONY PANETTA ) for the plaintiffs (moving parties ) and responding parties) Plaintiffs ) ) — and — ) ) RETROCOM MID-MARKET ) Carolynne J.

Wahlman, for the REAL ESTATE INVESTMENT ) defendant, Retrocom Mid-Market TRUST, WAL-MART CANADA ) Real Estate Investment Trust CORPORATION, 1477886 ) (responding party and moving party) ONTARIO LTD. operating as ) FAIRVIEW LANDSCAPE, ) ARCTURUS REALTY ) CORPORATION and ARCTURUS ) The remaining defendants were not LIMITED PARTNERSHIP ) involved in the motions ) Defendants ) ) HEARD: November 29, 2012, ) at St. Catharines J.W.

Quinn J.: — I INTRODUCTION [ 1 ] If there is a more tedious experience than an undertakings motion, it likely would be two undertakings motions. [ 2 ] In this instance, mercifully, the experience was salvaged by a sticky litigation-privilege issue and made edgy by reckless allegations of misrepresentation against one counsel. [ 3 ] The plaintiffs (husband and wife) bring a motion [1] in respect of unfulfilled undertakings and refusals arising out of the examination for discovery of the defendant, Retrocom Mid-Market Real Estate Investment Trust (“Retrocom”).

At the same time, Retrocom moves for an order requiring the plaintiffs to satisfy undertakings given on their examination for discovery. [ 4 ] The part of the motion by the plaintiffs dealing with unfulfilled undertakings by Retrocom de-escalated into a dispute over costs. [ 5 ] The refusals-branch of the motion by the plaintiffs presents these issues:

▪ When did the opportunity arise for Retrocom to protect documents on the basis of litigation privilege?

Answering this question requires a consideration of: (1) certain correspondence and whether it triggered litigation privilege; (2) the relevance and privilege-status of the handwritten notes and file of an insurance adjuster; (3) whether a non-privileged, preliminary investigative phase exists when it comes to an adjuster investigating third-party tort claims. ▪ To what extent must Retrocom provide particulars pertaining to documents for which it properly asserts litigation privilege? [ 6 ] In the motion by Retrocom to compel fulfillment of undertakings given by or on behalf of the plaintiffs, it was contended by the latter that all undertakings had been satisfied by the time the motion was argued.

A central issue is whether Retrocom must await being served with an economic loss report to obtain some understanding of the claims being made by the plaintiffs for out-of-pocket expenses, lost income and loss of competitive advantage. [ 7 ] Because of a shortage of time on the return of the motions, both subsequently were laboriously argued by way of written submissions. [ 8 ] In the course of those submissions, one counsel made allegations of impropriety against the other counsel, thereby: [2] (1) rendering the issues between the parties subordinate to those between counsel, making settlement of the motions unlikely; (2) creating a perceptible pertinacity to the submissions; and, (3) bringing into play the ugly possibility of rule 57.07 , of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, being invoked by the court. [ 9 ] These motions concern the plaintiffs and Retrocom.

I will mention the other parties only to the extent necessary to provide contextual facts. II BACKGROUND 1. Cause of action and parties [ 10 ] The action arises in mundane circumstances.

The female plaintiff, Piera Rose Panetta, alleges that, on March 5, 2008, she was injured in a fall on a patch of ice in the parking lot of retail premises (“premises”) owned by Retrocom and occupied by the defendant, Wal-Mart Canada Corporation (“Wal-Mart”), as a commercial tenant. [ 11 ] The defendant, 1477886 Ontario Ltd., operating as Fairview Landscape (“Fairview”), had the contract to remove snow and ice from the premises. [ 12 ] The defendant, Arcturus Limited Partnership, is in the business of managing retail properties and the defendant, Arcturus Realty Corporation, is a partner in Arcturus Limited Partnership.

I will refer to these parties, collectively, as the “Arcturus companies.” One of them was the property manager of the premises. [ 13 ] I will begin my look at the background facts by reference to various events from March 5, 2008 to August 8, 2008. It is during this period that litigation privilege arose. 2. Events from March 5, 2008 to August 8, 2008 Date Event 2008 Mar.5 The female plaintiff slipped and fell in the parking lot of Wal-Mart. Two Wal-Mart employees responded and an incident report was prepared.

Mar.6 A Wal-Mart employee telephoned the residence of the plaintiffs to follow up on the condition of the female plaintiff and spoke with her husband. He advised that his wife “had a sore bottom and back.”

Mar.25 A claims representative, with independent insurance adjusters, Cunningham Lindsey Canada Limited (“Cunningham Lindsey”), retained by the insurers of Wal-Mart, spoke to the female plaintiff by telephone and obtained details of the fall, injuries and medical treatment, along with employment particulars. Following this telephone call, Cunningham Lindsey wrote to Retrocom: Re: Our Insured: Wal-Mart Canada Corp. Date of Loss: March 5, 2008 Claimant: Rose Panetta File #: L8734700 Store #: 3088 Address: 525 Welland Ave. St.

Catharines We are the independent insurance adjusters who have been contacted by Wal-Mart Canada to investigate the above loss. On the above date, Mrs. Panetta claims to have suffered a slip and fall in the parking lot at the above address. Please accept this document as notice [3] in connection with the above incident. Please forward this claim to your insurer at your earliest opportunity in order that this matter may be dealt with accordingly. Please have your insurance representative contact me upon receipt. We have enclosed the notice of loss [4] for your review.

This letter plays a crucial role in respect of the refusals-branch of the motion brought by the plaintiffs:

(1) On behalf of Retrocom, it is submitted that litigation privilege commenced with this correspondence, as it was “notice of an intended claim.”

(2) On the other hand, the plaintiffs argue that this “letter is no more than an insurer compliance letter [5] that is sent when an incident occurs on the [tenant]’s premises.” It is the submission for the plaintiffs that “notice of loss or notice of injury is different than notice of litigation, actual or contemplated.

The latter commences litigation privilege, the former does not . . . [M]ere notice of loss without notice of litigation, actual or contemplated, is insufficient to commence litigation privilege.” Apr.2 The female plaintiff forwarded, by facsimile transmission, a handwritten letter to Cunningham Lindsey, quoting the claim number of the latter and referring to the “accident March 5, 2008 @ 7:30 p.m.”: I have visited my doctor and she has recommended physio & massage therapy. I am waiting for my MRI [appointment] checking discs. Also on Celebrex, along with (indecipherable) for pain.

The female plaintiff had not spoken to or retained a lawyer at this point. Apr.15 The insurance broker for Retrocom (to whom Retrocom had forwarded the March 25 th letter) put Aviva Canada Inc. (“Aviva”), the insurer of Retrocom, on notice. Jun.3 Aviva sent a letter to Fairview stating that, because of the provisions of the snow removal contract by which Fairview was obligated to “indemnify and hold harmless [Retrocom] . . . we are holding you fully negligent and liable for any damages.”

Aug.8 The lawyer for the plaintiffs forwarded a registered letter to Retrocom: I act on behalf of Piera Rose Panetta (aka Rosie Panetta) with respect to injuries she sustained when she slipped and fell in the parking lot located at 525 Welland Avenue, in the City of St. Catharines. My investigation into the circumstances of this accident indicates that responsibility rests with [Retrocom] as the owner of the subject property. As a result of this accident, my client intends to proceed with an action against you for damages and interest.

Please provide this letter to your insurer within seven days so that they may deal with this matter on your behalf. This is an important letter for the plaintiffs.

It is argued by their counsel that litigation privilege did not arise until this letter, because it was the first notice given “of actual or contemplated litigation,” such that all documents in the possession of Retrocom in the period March 5, 2008-August 8, 2008 should be produced. [ 14 ] I will deal with the balance of the background facts by reference to events in five time-frames: (1) leading up to the examinations for discovery; (2) the examinations for discovery; (3) from the discoveries to the status hearing; (4) from the status hearing to the return date of the motions; and, (5) thereafter. [ 15 ] As it was obvious early that costs would be significant and disputed, I am belabouring my recitation of background facts with that issue in mind. 3.

Events leading up to examinations for discovery [ 16 ] From the evidence before me, the plaintiffs and their counsel largely were invisible in the period leading up to the examinations for discovery. Date Event 2010 Feb.10 Twenty-three months after the slip and fall, the statement of claim was issued. Aug.20 Carolynne J. Wahlman (“Wahlman”), counsel for Retrocom, wrote to Maurice Benzaquen (“Benzaquen”), counsel for the plaintiffs: I have no productions from the plaintiffs whatsoever although I think I have a small fax which might have been from Mrs. Panetta regarding the alleged injuries.

Wahlman went on to make 13 specific (and typical) requests for such things as medical and employment records, and stated: If you have difficulty obtaining documents from non-parties, please provide me with at least two request letters so that my client can consider whether a motion under rule 30.10 [6] is needed.

Wahlman enclosed with her letter “a proposed discovery plan,” adding: Our firm will send to you our draft affidavit of documents in the near future and I propose to provide you with a sworn affidavit of documents at the examination for discovery . . . once you receive the affidavit of documents, please advise me if there is any

Schedule “A” documentation you require. I have already forwarded to you the lease agreement. Nov.3 More than two months passed and Wahlman sent follow-up correspondence to Benzaquen: I wrote to you on August 20, 2012 . . . I asked for a number of specific documents . . . I have not received anything from your offices with which to be able to assess the claim . . . I would appreciate hearing from you with respect to how long you require in order to gather the necessary materials and produce them. 2011

Apr.13 Not having received a reply from Benzaquen to her letters of August 20, 2010 and November 3, 2010 (in total, a period of eight months had gone by),Wahlman wrote a third time: I would appreciate hearing from you as soon as possible . . . I have diarized this matter for one month failing which I will seek instructions for a motion against your client. [ 17 ] Finally, there was some activity in the file resulting in discoveries being scheduled. 4. Examinations for discovery (

a) of the plaintiffs [ 18 ] The examinations for discovery of the plaintiffs were held on October 11, 2011, during which a number of undertakings were obtained. (

b) of the defendants [ 19 ] Gurdip Sanghera, director of asset management for Retrocom, was examined for discovery on October 12, 2011. Undertakings were given. Some questions were taken under advisement and the answers to others were refused. [ 20 ] Wahlman takes the position (and it will become relevant later) that, “due to the volume of the requests and the speed at which they [were] demanded, [Benzaquen] agreed to provide me with correspondence outlining the undertakings.” She relies on this passage from the discovery transcript of Retrocom, at p. 51: MS.

WAHLMAN: You’re gonna send me a letter outlining all of this? MR. BENZAQUEN: I can. MS. WAHLMAN: Thank you, please? MR. BENZAQUEN: Yeah. MS. WAHLMAN: I have notes, but . . . MR. BENZAQUEN: Okay. MS. WAHLMAN: . . . I’m not – I’m not 100 percent sure I captured all of it. [7] MR. BENZAQUEN: Okay. (

c) Schedule “B” of the affidavit of documents of Retrocom [ 21 ] On the examination for discovery, Retrocom was questioned on Items 2, 4 and 7 in

Schedule “B” of its affidavit of documents. I will set out

Schedule “B”, in part (the underlining is added):

Schedule “B” Documents that are or were in the corporation’s possession, control or power that it objects to producing on the grounds of privilege: . . . . . . (

b) Litigation Privilege: Documents comprised of notes, memoranda, reports, confidential correspondence, and copies thereof, prepared for the purposes of obtaining or providing advice concerning this litigation, of obtaining or providing information and evidence to be used in this litigation and preparing for and prosecuting this litigation. . . . . . . Litigation Privilege: 1. Wal-Mart Lease Detail File (period: Aug 1/05-Jul 31/10) 2. Recorded Statement Form (Notes for the Statement of Rosie Panetta) undated 3. Endorsement No. 1 Named Insured (for Arcturus on Retrocom GL Policy) undated 4. Adjuster’s Handwritten Notes of Events undated 5. Photos of Scene (8 – taken by Adjuster) undated

6. Commercial General Liability Coverage Form undated 7. Contents of Adjuster’s File various 8. King Reed Surveillance Report Aug. 10, 2011 [ 22 ] Items 2, 4 and 7 are the subject-matter of the refusals-branch of the motion brought by the plaintiffs. 5.

Events from discoveries to status hearing [ 23 ] Following the examinations for discovery, there was scarcely a trace of pace to the case, until the Local Registrar served a Status Notice. [8] Date Event 2011 Oct. 13 Two days after the discovery of the plaintiffs, Wahlman sent a letter to Benzaquen detailing 15 undertakings that were said to have been provided on behalf of the plaintiffs, of which three were noted as “satisfied” (with an additional one being “partially satisfied”), therefore leaving 11 fully outstanding. [9] Dec.8 Wahlman, who had been waiting for Benzaquen to forward a list of the undertakings and refusals of Retrocom, as had promised, wrote to him: During the examinations for discovery of . . .

Retrocom, I asked you to write to me about the various undertakings and refusals given the amount of material that you are asking for. I have not heard from you . . . and, as a result, I have not yet followed up [with Retrocom]. I would appreciate hearing from you as soon as possible . . . In a second letter to Benzaquen, Wahlman requested fulfillment of the undertakings given by the plaintiffs and added: If you are having difficulty obtaining documents in the possession of non-parties, I would appreciate receipt of copies of your request letters now.

Dec.23 The statement of claim was amended to add the Arcturus companies as defendants. 2012 Mar. 8 In further correspondence to Benzaquen, Wahlman repeated the requests contained in her letters of December 8. May17 Finally, after a delay of five months, Benzaquen wrote to Wahlman: Thank you for your letter dated December 8, 2011. It is your responsibility to note your client’s undertakings. It is not my responsibility to be your transcriptionist. [10] If you are unclear of any undertakings you have noted, please advise and I would be happy to assist you.

May18 Wahlman sent an e-mail to Benzaquen: At the discovery, you asked my client for so many items that I asked you right during the discovery to ensure that you send me a list of the items afterwards before my client would comply – particularly given that I had to deal with multiple items sought that were refused. I believe you agreed to do so. I would very much like your assistance . . . Aug.20 A Status Notice was forwarded to the parties by the Local Registrar at St.

Catharines, stating that “more than 2 years have passed since a defence in this action was filed” and warning: AS A RESULT, THIS ACTION SHALL BE DISMISSED FOR DELAY, with costs, unless within 90 days of service of this Notice (

a) the action is set down for trial; (

b) the action is terminated by any means; (

c) documents have been filed in accordance with subrule 48.14(10); or (

d) a judge or case management master orders otherwise. Aug.29 A Notice of Status Hearing was sent to the parties by the Local Registrar, advising that a status hearing had been set for October 4, 2012 at 10:00 a.m. and requiring the plaintiffs to “. . . show cause why the action should not be dismissed for delay.” Sept.20 Benzaquen circulated a draft timetable to all counsel, contending that the only step “remaining . . . to be completed” was for the plaintiffs to set the action down for trial and proposing that this “be completed by August 31, 2013.” Counsel for Retrocom and counsel for Wal-Mart were opposed to a timetable permitting such a delay in setting the action down for trial. [11]

Sept.28 Benzaquen made first-time efforts to obtain the information necessary to fulfill 18 of 32 undertakings that he said were given by the plaintiffs. (I do not know why the number of undertakings did not coincide with the earlier compilation by Wahlman.) Oct.2 Benzaquen made a first-time effort to satisfy a further undertaking of the plaintiffs. Oct. 3 Benzaquen forwarded to Wahlman a list of Retrocom’s undertakings, refusals and matters taken under advisement. [12] Later that day, Benzaquen sent to Wahlman, in table format, a list of 27 undertakings given by the plaintiffs.

The initial list of the undertakings of the plaintiffs prepared by Wahlman showed only 15 undertakings (and the list drafted by Benzaquen on September 28 th contained 32 undertakings). [13] The table confirms that Benzaquen did not commence efforts to satisfy the undertakings until September 28, 2012 [14] and that, as of October 3, only two had been fully satisfied. Also on this date, Benzaquen served Wahlman with an “affidavit in support of status hearing as to why this matter should not be dismissed for delay . . .” Oct. 4 The status hearing was held. Kevin J.

McGilly (“McGilly”), an associate of Wahlman, who presumably attended the status hearing, thereafter reported to all counsel by letter, stating: Please be aware that at the status hearing today, plaintiffs’ counsel was advised they must bring their motion no later than November 30, 2012 and they must set the matter down for trial by January 31, 2013. (In his argument on the motions, Benzaquen submitted that the status hearing order required all parties to bring their undertakings motions by November 30, 2012, not just the plaintiffs.

This discrepancy continued well into the written submissions until I requested counsel to provide either a copy of the endorsement of the status hearing judge or a transcript of the proceedings. The former was sent to me on February 28, 2013 and it reads: “. . . any motion for undertakings to be answered to be served and filed by November 30, 2012 . . .” Benzaquen, therefore, was correct.) [15] 6. Events from status hearing to return date of motions [ 24 ] Correspondence abounded in the short period of time between the status hearing and the return date of the motions.

Date Event 2012 Oct.15 Benzaquen forwarded a letter to Wahlman answering another two of the undertakings of the plaintiffs.

Oct. 23 McGilly, on behalf of Wahlman, wrote to Benzaquen, addressing “the undertakings, refusals and responses of Retrocom.” Twenty-eight items were listed in the letter: there were 9 refusals; and, 19 undertakings were purportedly fulfilled or bore the notation “inquiries have been made and will advise.” In this letter, as a response to two undertakings given by Retrocom, Benzaquen was informed that: (1) the date litigation privilege commenced was March 25, 2008 (being the date of the letter from Cunningham Lindsey to Retrocom); (2) the handwritten notes referred to at Item 4 of

Schedule “B” are those of Todd Gagnon, an adjuster with Aviva, and Wanda D’Angelo, a claims examiner with the same company, and they are dated “April, 15, 2008 and forward.” (This date makes sense, because it was on April 15, 2008 that Aviva was notified by Retrocom’s insurance broker of the letter of March 25, 2008 from Cunningham Lindsey.) Nov.8 Benzaquen wrote to Wahlman answering four undertakings of the plaintiffs and providing extra material regarding another undertaking.

Nov.20 The motion of the plaintiffs was served on Wahlman, returnable November 29 th , requesting orders that Retrocom fulfill undertakings and answer questions that had been refused on discovery. [16] Benzaquen did not consult with the other counsel regarding the suitability of the motion date. [17] Nov.21 In a list compiled on this date, Wahlman noted that, of 15 undertakings given by the plaintiffs, 10 were outstanding.

Nov.22 At 10:41 a.m., Wahlman e-mailed Benzaquen: I have your motion record seeking answers to undertakings. The affidavit is deficient and does not reflect fully the events in this file. Therefore, [McGilly] is preparing responding materials to the motion. In addition, the plaintiffs failed to take any steps to answer undertakings for almost one year. As a result . . . I have instructions to bring a cross motion [18] against the plaintiffs. You will be served with that motion shortly.

The motions will need to be heard together as the affidavit will be joint. [19] Wahlman sent an e-mail to all counsel at 12:45 p.m.: Please be advised that in an effort to answer undertakings, our office started immediate follow-up when we received the outline of the undertakings from Mr. Benzaquen in October 2012 – an outline Mr. Benzaquen undertook on the record to provide as a condition to getting answers. Our office found out today that our client [Retrocom] sought much of the information directly through Arcturus who our client indicates will have much of the information . . .

Arcturus did not respond to our client. Could [counsel for Arcturus] please follow up with Arcturus on the communication from Retrocom and determine if Arcturus can be of assistance? Also on this date, Benzaquen made a first-time effort to satisfy one of the undertakings of the plaintiffs and followed-up on his efforts to fulfill six other undertakings. Benzaquen corresponded with Wahlman, addressing the state of the undertakings of the plaintiffs.

His letter chronicled 27 undertakings, with 16 said to be “satisfied” and 11 “unsatisfied.” As throughout, Benzaquen was not working from the same list being used by Wahlman. The motion by Retrocom was served , alleging that 12 of the undertakings of the plaintiffs were unfulfilled (two more than in the November 21 st list). Nov.26 There is fax correspondence from Wahlman to Benzaquen providing, according to the former, answers to all outstanding undertakings of Retrocom and identifying eight refusals by Retrocom.

Wahlman also sent an e-mail to Benzaquen: You might wish to review your motion record in comparison with our answers. Kindly review our prior letter on undertakings/refusals closely. You will see that some of what you seek in the motion is non-existent. Nov.27 Benzaquen responded to Wahlman: Please see our motion record. We are moving on the following undertakings for no or unresponsive answer and on refusals: Questions # 58, 97, 105, 122, 126, 128, 172, 217, 441. From what I am able to determine, two of these undertakings (#58 and #217) already had been satisfied.

In what seems to be a second letter, Benzaquen answered two more undertakings of the plaintiffs. Nov.29 Benzaquen sent a letter to Wahlman providing additional material in fulfillment of an undertaking of the plaintiffs. The motions were argued, in part. I ordered written submissions because of the lack of time available to hear the motions orally. 7. Events following the return date of motions [ 25 ] The events following the return date of the motions include a spurt of undertakings-fulfillment and waves of written submissions. [20]

Date Event 2012 Dec.11 Wahlman prepared a list of the undertakings of the plaintiffs, totalling 27: [21] nine were shown as “satisfied”; five as “partially satisfied”; nine as “outstanding”; three as “ongoing”; and one, Wahlman argues, represents an instance of spoliation of evidence and cannot be satisfied. [22] Dec.13 By e-mail, a law clerk to Benzaquen forwarded information to Wahlman in furtherance of an undertaking by the plaintiffs. In an e-mail to Benzaquen, Wahlman said: In regards to Retrocom’s refusals, I encourage you to read the transcript in full.

You will find answers to refusals within the transcript – then when the question was asked again, it was refused. [23] Wahlman delivered written submissions on the motion by Retrocom. Dec.14 Benzaquen delivered written submissions on the motion of the plaintiffs. [24] However, the submissions addressed refusals only. This was the first unequivocal sign from Benzaquen that the undertakings of Retrocom had been satisfied. The undertakings- branch of the motion was never withdrawn or abandoned, but it is alive only as to the issue of costs.

According to Benzaquen, the plaintiffs are “seeking costs for undertakings answered in light of and subsequent to the motion being served.” Dec.18 Wahlman delivered responding written submissions on the motion of the plaintiffs. Dec.24 Benzaquen delivered responding written submissions on the motion by Retrocom. [25] He also prepared “a chart of the current status of undertakings” by the plaintiffs. Of 31 undertakings listed, [26] 22 were said to be answered and nine were “in progress.” His chart was an updated version of the one he had prepared on October 3, 2012.

Still, there were no transcript references to allow for verification. In the course of his December 24 th written argument, Benzaquen accused Wahlman of “requesting relief with laches/unclean hands . . .” and submitted “that this Honourable Court not be duped by the smoke and mirrors submissions by [Wahlman] . . .” Benzaquen went on to “request an oral hearing to address the numerous misrepresentations made in [Wahlman]’s submissions [dated December 18 th ].” [27] I sent word to counsel that the alleged misrepresentations should be addressed by way of further written submissions.

Dec.31 After reading the submissions received to this point, I forwarded a letter to counsel requesting additional information. 2013 Jan.2 Wahlman delivered reply written submissions on the motion by Retrocom in which she collaterally noted that, as of then, six undertakings of the plaintiffs were unfulfilled (down from the 12 alleged to be outstanding when Retrocom’s motion was launched). Benzaquen delivered reply written submissions on the motion of the plaintiffs. Jan.21 Benzaquen delivered further written submissions. Jan.28 Wahlman delivered further written submissions.

Jan.30 I forwarded a letter to counsel requesting additional information. Jan.31 Wahlman delivered further written submissions. Feb.1 I forwarded a letter to counsel requesting additional information. Feb.5 Benzaquen delivered further written submissions. Feb.20 I forwarded a letter to counsel requesting additional information. [28] Feb.28 Benzaquen delivered further written submissions. Mar.5 Wahlman delivered further written submissions. Mar.20 Benzaquen delivered further written submissions. Mar.25 I forwarded a letter to counsel requesting additional information.

Mar.26 Wahlman delivered further written submissions. Mar.29 Benzaquen delivered further written submissions. Apr.15 I forwarded a letter to counsel requesting additional information. [ 26 ] My preference at this juncture would be to retire. Instead, I will review some of the legal principles associated with litigation privilege, particularly in the context of the notes, records and files of insurance adjusters, following which I will deal with the motion of the plaintiffs. III DISCUSSION

1. Litigation privilege and adjuster’s file (

a) dominant purpose test; created for purpose of litigation [27] A leading case on the law of litigation privilege is General Accident Assurance Co. v. Chrusz (1999), (ON CA),45 O.R. (3d) 321 (C.A.) where, after reviewing the jurisprudence, it was held, at para. 32, that “the dominant purpose test” applied inOntario (rather than the substantial purpose test) and, at para. 33, that “[a]n important element of the dominant purpose test is therequirement that the document in question be created for the purpose of litigation, actual or contemplated.” (Emphasis in the original) (

b) substantial likelihood of litigation v. mere possibility [28] Subsequent cases have added the clarification or qualification that “[a]t the time the document was created there must be asubstantial likelihood of litigation, and not a mere possibility”: see, for example, Contos v. Kingsway General Insurance Co., [2001] O.J.No. 1327 (Master), at para. 24 and Micciche v. Mittag, [2001] O.J. No. 3386 (Master), at para. 13. [29] As this clarification or qualification did not appear to have come from General Accident Assurance Co. v. Chrusz, supra, I askedcounsel for its origin.

Wahlman pointed out that there is a reference to “mere possibility” in the partial dissent of Doherty J.A., at para.99, in General Accident Assurance Co. v. Chrusz. As well, Wahlman referred me to an earlier case, Blackstone v. The Mutual LifeInsurance Company of New York, (ON CA), [1944] O.R. 328 (C.A.), where, at p. 335, the Court commented that “[t]hemere possibility there might be litigation was not sufficient to engage litigation privilege.” [30] Still, I do not know the provenance of “substantial likelihood.” (

c) reasonable prospect of litigation [31] Other cases speak of the “reasonable prospect” of litigation. [32] “[L]itigation is a reasonable prospect after almost any accident or collision that leaves someone seriously hurt”: see Brown v. Ross2011 CarswellNB 618 (Q.B.), at para. 7. [33] “In the context of casualty insurance, litigation has been held to be a reasonable prospect from the moment the accident occurs”:see Chmara v. Nguyen

(1991) CarswellMan 263 (Q.B.), at para. 16,[29] citing Rangwala v. Rizzo (1985), 4 C.P.C. (2d) 1 (Ont. Master),Anger v. Dykstra (1984), (ON SC), 45 O.R. (2d) 701 (H.C.) and Somerville Belkin Industries Ltd. v. BrocklesbyTransport (1985), (BC SC), 5 C.P.C. (2d) 239 (B.C.S.C.). [34] “In claims in tort against an alleged wrong-doer, it may well be that litigation can be anticipated from the outset . .”: see Blackstonev. The Mutual Life Insurance Company of New York, supra, at p. 336. This is an early statement of a general principle that has influencedmy decision at bar. (

d) counsel need not be retained [35] It is not essential that counsel be retained before litigation privilege attaches to a document: see, for example, R. v. Westmoreland(1984), (ON SC), 48 O.R. (2d) 377 (H.C.), at p. 379 and C. Itoh & Co. v. “New Jersey Maru” (The) (1988), 28 C.P.C.(2d) 7 (Ont. S.C. – Master), at para. 6. (

e) one potential defendant advises potential co-defendant that liability disputed [36] Litigation privilege commences on the date one potential defendant advises a potential co-defendant that the former is disputingliability in respect of damaged goods: see C. Itoh & Co. v. “New Jersey Maru” (The) (1988), 28 C.P.C. (2d) 7 (Ont. S.C. – Master). Thisis a legal principle upon which Wahlman relies in her argument that the letter of March 25, 2008, sent on behalf of Wal-Mart (a potentialdefendant) to Retrocom (a potential co-defendant), triggered the onset of litigation privilege. (

f) litigation privilege is fact specific [37] “Some modern cases attempt to find rules of privilege for specific fact situations. For example, they suggest that an accident reportnot submitted to a solicitor is never privileged; or, that an insurance adjuster always investigates with an open mind; or, that the mere factof an accident never means that litigation is contemplated. Such attempts appear to me futile; it depends on the facts of the particularcase”: see Opron Construction Co. Ltd. v. Alberta (1989), 1989 ABCA 279 , 71 Alta. L.R. (2d) 28 (C.A.), at para. 6. (

g) semblance of relevance [38] The inquiry into whether production of a document is protected by litigation privilege presupposes relevance. [39] “[S]emblance of relevance” is the “test . . . to [be applied] in determining whether documents need to be produced by a party”: see Lin v. Belair Insurance Co. (2009), 85 C.P.C. (6th) 197 (Ont. Master), at para. 13.[30] (

h) adjuster’s file – case law caveat [40] It was correctly pointed out by Wahlman in her submissions that, in examining the authorities dealing with the issue of thedisclosure of notes, records and files of insurance adjusters, we must be careful to distinguish first-party claims (with their attendantcontractual and statutory obligations) from tort claims. The case before this court is a tort claim. [41] Benzaquen cites Hall v. Co-operators General Insurance Co. (1992), 14 C.P.C. (3d) 355 at 359 (Ont. Gen.

Div.), where the courtstates “it is not open for an insurance company to claim that it is anticipating litigation simply because an insured wishes to be paid forwhat he or she believes to be an insured loss”; and, Blackstone v. The Mutual Life Insurance Company of New York, supra, which held, at

p. 334, that “it is commonly the practice of insurance companies to investigate the claims of their insured with a fair and open mind, andnot to anticipate litigation until they have ascertained whether or not there is any basis for it.” However, both of those cases involvedclaims by an insured against their own insurer,[31] thereby coming within the caveat raised by Wahlman.[32] [42] Even General Accident Assurance Co. v. Chrusz, supra, must be viewed carefully because it involved a first-party insurance claim,not a tort claim. (

i) adjuster’s file - investigation [43] A very sensible and helpful decision in this area of the law is that of Weekes J. in Allan v. CHC Casinos Canada Ltd. (2005), (ON SC), 77 O.R. (3d) 653 (S.C.J.). In that case, Allan had tripped and fallen while exiting a casino operated by CHCCasinos Canada Ltd. (“CHC”). The latter instructed a firm of insurance adjusters to investigate and, in the course of that investigation,the adjusters sent seven reports to CHC and CHC forwarded one letter to the adjusters.

The reports and the letter were created beforeCHC was notified by Allan of the intention to sue and before CHC knew that Allan had retained counsel. [44] After observing, at para. 9, that the evidence showed “patrons who sustain even minor injuries at the casino seek compensation andfrequently commence litigation,” Weekes J. stated, at para. 10: I am not persuaded that in circumstances such as these there is a difference between investigating a claim for the purpose of negotiating asettlement and investigating a claim for the defence of litigation.

They are simply way points on the same path. [45] Weekes J. then went on to distinguish the case before him with those involving documents “generated in the course of insurersengaging in their contractual obligations” [33] and held, at para. 12: In the present case there is no contractual relationship between the parties that would require CHC to investigate the loss which [Allan]claims she sustained. It is only for the purpose of attempting to cut off at the pass potential litigation by way of settlement that CHCretained [the adjusters].

I am therefore persuaded that the dominant, and indeed sole, purpose for the creation of the documents inquestion was in anticipation of litigation which CHC contemplated might follow from the incident. (

j) adjuster’s file – reserves [46] “Information relating to the setting of reserves[34] per se does not have a semblance of relevance”: see Lin v. Belair Insurance Co. (2009), 85 C.P.C. (6th) 197 (Ont. Master), at para. 14.[35] [47] Documents and correspondence regarding reserves are “clearly something within the concept of litigation privilege”: see Brown v.Ross 2011 CarswellNB 618 (Q.B.), at para. 16. (

k) adjuster’s file – memoranda and worksheets [48] “The internal memoranda and work sheets of the adjuster [are] privileged . . . and need not be produced”: see McMillan v. Weaver1994 CarswellBC 392 (B.C. Master), at para. 16. (

l) adjuster’s file – statements by plaintiff [49] In McMillan v. Weaver, supra, the plaintiff claimed to have been injured in a motor vehicle accident in 1992. The defendantpleaded that any injuries suffered arose from a 1991 accident, in which the plaintiff, as driver, was sued by her passenger. In the 1992accident, the plaintiff applied for production of documents in the possession of the Insurance Corporation of British Columbia(“I.C.B.C.”) relating to the 1991 accident, including the notes of the adjuster.

The court concluded, at para. 16, “that any statementsmade [in respect of the 1991 accident] by the plaintiff to the adjuster, received by the adjuster in documentary form or recorded by theadjuster in documentary form, were not privileged [in 1991] and are not now and should be produced.” [50] “[L]itigation privilege cannot restrict disclosure of the opposing party’s statements . . . [E]vidence, information or statementsobtained from an opposing party cannot be confidential from that party”: see Hart v.

Canada (Attorney General) (2012), 2012 ONSC6067 , 112 O.R. (3d) 544 (S.C.J.), at para. 36, affirming the finding of Master MacLeod at 2012 ONSC 3534 , [2012]O.J. No. 2851. [51] Statements or information from the opposing party must be produced, but not “notes containing commentary, remarks,observations, etc. . . . [recorded] during an interview or questioning of an opposing party”: see Hart v.

Canada (Attorney General),supra, at paras. 45 and 46. [52] Although a statement (in writing or recorded), taken from a party by an adjuster, must be produced, if there are comments orimpressions noted by the adjuster as to the credibility of the party, they are not producible: see Mancao v. Casino (1977), (ON SC), 17 O.R. (2d) 458 (H.C.J.), at para. 5. (

m) adjuster’s file – statements of witnesses [53] In respect of a statement taken from a witness after litigation has commenced, there is “a duty to disclose the contact information of

that witness but not to disclose [the] statement . . .”: see Brown v. Ross 2011 CarswellNB 618 (Q.B.), at para. 17. [54] “[T]he written witness statements, they, having been prepared for the purpose of litigation, are privileged and need not bedisclosed. However, the facts relevant to the case [and the names of all potential witnesses], whether reflected in the privilegeddocuments or not, are not privileged, and must be disclosed if sought by one party . . . through an examination for discovery”: see Hill v.Arcola, (SK CA), [1999] 11 W.W.R. 360 (Sask.

C.A.), at paras. 8 and 10. [55] “The criterion for discoverability is whether the information sought may be characterized as being ‘facts that are or may berelevant to the determination of the facts in issue.’ The names of all potential witnesses clearly fall into that category . . .

However, thename of the insurance adjuster who investigated the accident and the names of potential witnesses from whom he took statements,written or otherwise, . . . during the course of his investigation just as clearly do not.[36] These names do not reveal anything of the factsin issue that the respondent does not already have, but do reveal details of the appellant’s investigation of the facts in issue.

Therespondent cannot be said to be seeking facts when he asks for this information; he is seeking details of the appellant’s investigation.That is exactly the sort of information that litigation privilege is designed to protect”: see Hill v. Arcola, supra, at para. 10. (

n) adjuster’s file – contents of documents v. documents themselves [56] If documents are privileged, so are the contents. “If the privilege is to mean anything, it must apply to the content as well as thephysical document. The appellant cannot be compelled to, in effect, copy all parts of privileged documents dealing with facts and to handthe copies over. To rule otherwise would be to penalize the party who first investigated the matter by compelling him to hand over thecomplete fruits of his investigation of the facts to the other”: see Hill v. Arcola, supra, at para. 12. (

o) adjuster’s file - surveillance [57] “Surveillance of a claimant is not normal procedure. Certainly, by the time the insurer began retaining the services of persons toconduct that surveillance it can be reasonably concluded that litigation was contemplated and a file was being constructed for thedominant purpose of opposing the claim”: see Chmara v. Nguyen

(1991) CarswellMan 263 (Q.B.), at para. 15. [58] Although videotapes in the file of an adjuster may be relevant to the issue of the credibility of the plaintiff, they are privileged.“The tapes record the surreptitious surveillance of the plaintiff. Litigation was the dominant purpose for their preparation,notwithstanding the fact that the surveillance had commenced some months before the filing of the statement of claim . . . [T]hevideotapes are part of the adjusters’ notes, memoranda and reports, and are privileged under the lawyer’s brief rule or litigationprivilege”: see Chmara v. Nguyen, (MB CA), [1993] 6 W.W.R. 286 (Man. C.A.), at paras. 22 and 24. (

p) adjuster’s file – redaction [59] It is always open for a court to order the production of the file of an adjuster with redactions for mention of reserves and privilegedor irrelevant information; and counsel may be invited by the court to suggest redactions. (

q) conclusion regarding commencement date of litigation privilege at bar [60] As soon as the female plaintiff fell and was injured on March 5, 2008, she was in an adversarial position with all of those whoultimately were to become defendants and with their insurers. [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 preliminaryinvestigative phase where privilege does not attach to notes, reports and files of adjusters.

In third-party insurance claims, the sole reasonfor 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 thatthe investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigationinherently includes the prospect of settlement. [62] I agree with the submissions of Wahlman that there is no purpose for the creation of documents by an insurer in a tort context otherthan: (1) for anticipated litigation; (2) for setting reserves; or (3) for seeking legal advice.

For completeness, I would add, as a corollaryto (1): for the purpose of settlement, which I see as inextricably entwined with “anticipated litigation.” [63] When Cunningham Lindsey were retained to conduct their investigation on behalf of the insurers for Wal-Mart, the sole purpose ofany documents they created was in anticipation of litigation. Thus, litigation privilege arose to protect their notes, records and filesgenerated from that point onward.

And, on March 25, 2008, with the letter from the adjusters for Wal-Mart (one potential defendant) toRetrocom (a potential co-defendant), litigation privilege arose again, this time to protect Retrocom. [64] Benzaquen argues that “just reporting an injury to the store she fell in front of” or “the store reporting [the fall and injury] to theirinsurer or another third party is insufficient to commence litigation privilege.” Neither of those arguments is the one being made byWahlman. [65] It is worth observing that there was no contractual relationship between the plaintiffs and Wal-Mart or the plaintiffs and Retrocomthat obligated the insurer of either company to investigate the slip and fall. [66] Finally, notice of litigation, actual or contemplated (a requirement repeatedly emphasized by Benzaquen), is not a precondition tolitigation privilege.

Notice is not necessary; it is the fact of the actual or contemplated litigation that is important. 2. Motion of plaintiffs [67] The motion of the plaintiffs lists 20 undertakings of Retrocom that were alleged to be unfulfilled or for which answers had beenrefused. When I received the initial written submissions of Benzaquen, only the refusals (seven in total) were in issue. Five of the sevenrefusals relate to the handwritten notes and file of an insurance adjuster, as identified at Items 2, 4 and 7 of

Schedule “B” in the affidavit

of documents of Retrocom. [ 68 ] I will set out the seven refusals, together with the positions of counsel, my findings and then my conclusion on the refusals-branch of the motion by the plaintiffs (the undertakings-branch is in dispute now only as to costs). (

a) provide particulars of handwritten notes of adjuster [ 69 ] Retrocom was questioned on discovery about Item 4 (being, “Adjuster’s Handwritten Notes of Events”) of

Schedule “B” in its affidavit of documents: Q.97 Okay. Can I get particulars of those? MS. WAHLMAN: No. MR. BENZAQUEN: Okay. Why not? MS. WAHLMAN: ‘Cause there’s nothing in there in terms of relevance to the liability issues. It’s just what they were trying do on the claim. Position of the Plaintiffs Position of Retrocom Retrocom “is required to provide particulars of all documents for which litigation privilege is claimed that were created subsequent to the date [Retrocom] received notice of actual or contemplated litigation against [Retrocom].” [37] Q.97 was asked and answered previously, when Retrocom was questioned regarding Item 2 in

Schedule “B”. Item 2 is described as a “Recorded Statement Form (Notes for the Statement of Rosie Panetta).” It is not actually a recording but handwritten notes taken by an insurance adjuster of his interview with the female plaintiff “about what happened.” On the discovery of Retrocom, full particulars of the notes were read into the record when Item 2 was canvassed. Item 4 in

Schedule “B” is a duplication of Item 2. [ 70 ] I begin by saying that the duplication of, and general confusion surrounding, Items 2, 4 and 7 in

Schedule “B” would have been avoided if the documents for which litigation privilege is claimed had been properly described and with more detail. Documents for which litigation privilege is asserted require a level of particularity sufficient to identify the documents. Also, the grounds for the privilege must be set out in

Schedule “B” (it is not enough to merely claim litigation privilege). Here, both the grounds for the claim of privilege and particularity are lacking in

Schedule “B”. Such information must be provided in

Schedule “B” to permit one to form an opinion about the validity of the claim for privilege. [ 71 ] The position of Retrocom in argument (“particulars . . . were read into the record when Item 2 was canvassed”) differs from that given by Wahlman on the discovery (“nothing in there in terms of relevance”). Yet, the important point to recognize regarding Q. 97 is that Item 4 is included in Item 2. Consequently, the particulars sought were provided on discovery when Retrocom and Wahlman were answering questions concerning Item 2. Question 97 has been answered. [ 72 ] The refusal is proper. (

b) provide copy of handwritten notes of adjuster [ 73 ] Retrocom was questioned further as to the handwritten notes of the adjuster and was requested to provide copies up to the date when litigation privilege is claimed: Q.105 [Could I have an] undertaking [to provide] a copy of the [adjuster’s] notes, ah, from the date of the [slip and fall] until the date you’re claiming litigation privilege commences? MS. WAHLMAN: No. [38] [ 74 ] I understand these notes to be the handwritten notes for which particulars were sought in Q. 97. Position of the Plaintiffs Position of Retrocom

The “opportunity to protect documents from production on the basis of litigation privilege arose on August 8, 2008,” the date of the letter from the plaintiffs’ lawyer to Retrocom, which letter constituted “notice of actual or contemplated litigation against [Retrocom].” Consequently, “all documents in the possession of [Retrocom] relevant to this proceeding for which litigation privilege has been claimed from the date of loss until August 8, 2008 [should] be ordered produced in their entirety.” The handwritten notes of the adjuster were taken on and after April 15, 2008, which means they were created subsequent to the date that litigation privilege arose (March 25, 2008). [ 75 ] The requested notes are dated after March 25, 2008, the date litigation privilege commenced.

Consequently, there are no notes caught by Q. 105. [ 76 ] The refusal is proper. (

c) provide copy of notes in file of adjuster [ 77 ] Earlier in the discovery of Retrocom, Wahlman had informed Benzaquen that Item 7 was a duplication of Item 4. Later, Retrocom was questioned about Item 7 of

Schedule “B” (being, “Contents of Adjuster’s File”). Q.122 . . . with respect to item number 7, which you say is the same as number 4, ahm, on your affidavit of documents, can I get an undertaking, ahm, for the adjuster’s notes from the date of loss until the date you’re claiming litigation privilege. MS. WAHLMAN: No . . . It’s the same refusal you got earlier.

Position of the Plaintiffs Position of Retrocom The “opportunity to protect documents from production on the basis of litigation privilege arose on August 8, 2008,” the date of the letter from the plaintiffs’ lawyer to Retrocom, which letter constituted “notice of actual or contemplated litigation against [Retrocom].” Consequently, “all documents in the possession of [Retrocom] relevant to this proceeding for which litigation privilege has been claimed from the date of loss until August 8, 2008 [should] be ordered produced in their entirety.” The adjuster’s notes (which are dated on and after April 15, 2008), were created after the point in time litigation privilege arose (March 25, 2008). [ 78 ] With Item 7 being a duplication of Item 4 and the latter, in turn, a duplication of Item 2, Q. 122 is the same as Q. 105.

There are no notes for the period of time requested. [ 79 ] The refusal is proper. (

d) provide particulars of contents of file of adjuster [ 80 ] Continuing with Item 7 of

Schedule “B”, Retrocom was asked to provide particulars in connection with liability and damages: Q.126 Okay. And, ah, with respect to item number 7, ah, can I get an undertaking with respect to providing particulars with respect to liability and damages, edited out for, ahm, any assessment, any reserve information, any solicitor-client privilege, ahm, from the date you’re claiming litigation privilege, to date? MS.WAHLMAN: No . . . I’ve given you what you’re entitled to from the notes.

Position of the Plaintiffs Position of Retrocom Retrocom “is required to provide particulars of all documents for which litigation privilege is claimed that were created subsequent to the date [Retrocom] received notice of actual or contemplated litigation against [Retrocom].” This is another question previously asked and answered.

On the discovery of Retrocom, the particulars of what the female plaintiff said to the adjuster were read into the record and Benzaquen was advised that the notes of the adjuster did not contain any other details of liability or damages. [ 81 ] Again, since Item 7 is a duplication of Item 4 and the latter is a duplication of Item 2, Q. 126 is the same as Q. 97 and, effectively, has been answered. [ 82 ] The refusal is proper.

(

e) provide particulars of notes of adjuster by date and author [ 83 ] The final refusal relating to the file of the adjuster sought particulars, by date and author, of handwritten notes: Q.128 Okay. And, ah, can I get an undertaking for you to particularize item number 7, ah, by date and author, the notes by date and author? MS. WAHLMAN: No. Position of the Plaintiffs Position of Retrocom The plaintiffs rely on clause 30.03(2) (

b) of the Rules of Civil Procedure which provides that an affidavit of documents “shall list and describe . . . all documents . . . for which the party claims privilege, and the grounds for the claim . . .” The contents of the adjuster’s file should be particularized by date and author. The letter of October 23, 2012 provided the date the notes commenced and the names of the two authors. Retrocom submits that “listing every single note by date and author” is not required under the Rules of Civil Procedure . [39] [ 84 ] In the letter of October 23, 2012, which I referred to much earlier in these Reasons, Benzaquen was told that the handwritten notes at Item 4 of

Schedule “B” are those of Todd Gagnon, an adjuster with Aviva (Retrocom’s insurer) and Wanda D’Angelo, a claims examiner with the same company and that they are dated “April 15, 2008 and forward.” [ 85 ] Subrule 31.06(2) of the Rules of Civil Procedure provides that “[a] party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.” [ 86 ] To properly answer Q. 128 requires balancing the obligation on Retrocom to provide the particulars required by clause 30.03(2) (

b) with the entitlement of the plaintiffs to know the identity of the persons described in subrule 31.06(2) . That balance is achieved by respecting the distinction between, on the one hand, facts that are, or may become, relevant in the case and, on the other hand, details regarding the investigation of the facts by the adjuster. The latter are shielded by litigation privilege. [ 87 ] The notes of the adjuster and claims examiner are dated April 15, 2008 and later. As well, the two authors of the notes have been identified and the particulars of the notes were given in answer to Q. 97.

Consequently, I do not consider it necessary for Retrocom to supply anything further. [ 88 ] The refusal is proper. (

f) steps Retrocom took to protect customers from winter hazards [ 89 ] The sixth refusal stems from a question asked to ascertain what Retrocom did to protect customers from winter hazards, apart from delegate that task to Arcturus: Q. 172 . . . can I get . . . an undertaking to determine, other than delegating to Arcturus . . . what other reasonable steps, if any, ah, Retrocom took with respect to protecting [customers] coming into and out of the premises from winter hazards, including ice? MS. WAHLMAN: No.

Position of the Plaintiffs Position of Retrocom Retrocom was the owner of the premises where the slip and fall occurred. Retrocom delegated its responsibility to the Arcturus companies to maintain those premises. The question asked is “relevant and proper.” This question was asked and answered previously, at Q. 161, Q. 162 and Q. 169. [ 90 ] Wahlman is correct that Q. 172 was asked thrice previously, at Q. 161. Q. 162 and Q. 169. The three answers given were, respectively: A. I wouldn’t have knowledge of that. That’s something that’s covered by the Property Management Agreement.

So, day-to-day, that’s – that to me sounds like a question of day-to-day maintenance. MS. WAHLMAN: They contracted it out. You’ve got the answer . . . A. Ahm, just through monitoring our – our – the monthly reports. Arcturus, under the Property Management Agreement, provides

monthly reports . . . we rely on the – their expertise. [ 91 ] A full reading of pages 41-46 of the transcript provides the answer to Q. 172: when it came to protecting customers from winter hazards, Retrocom relied only on Fairview and Arcturus. [ 92 ] The refusal is proper. (

g) provide monthly reports [ 93 ] In the discovery of Retrocom, Wahlman advised Benzaquen that “Arcturus, under the property management agreement, provides monthly reports” to Retrocom. At Q. 441, an undertaking was requested to produce the monthly reports “from October of 2007 through to March of 2008.” Position of the Plaintiffs Position of Retrocom Retrocom “acknowledged that there were monthly reports . . . that dealt with discussions and the plans that were in place as to the monitoring of the parking lot, the

schedule of the monitoring of the parking lot and what the plan was.” The reports are relevant and should be produced. Although taken under advisement at the discovery, the answer to this question subsequently was refused on the ground that the reports sought are not relevant. There was no evidence given on the discovery of Retrocom that the monthly reports contain information relevant to this slip and fall. Also, the evidence on the discovery of Retrocom as to the monthly reports, did not deal with “discussions and the plans that were in place as to the monitoring of the parking lot, the

schedule of the monitoring of the parking lot and what the plan was.” [ 94 ] I agree with Wahlman that the position of the plaintiffs is erroneously stated. At Q. 435, counsel asked: Q. And really what I’m looking for in particular is, I’m looking for the discussions and the plan that was in place as to the monitoring of the parking lot, the

schedule of the monitoring of the parking lot, and that sort of thing and what, what the plan was. [ 95 ] In other words, there was no acknowledgement by Retrocom of a “plan . . . in place.” Instead, Retrocom was being asked about the existence of such a plan. (Also, the question came from Mr. John Graham, counsel for Fairview, [40] not Benzaquen.) [ 96 ] Should the monthly reports be produced? [ 97 ] Starting at Q. 174, the representative of Retrocom was asked about the contents of the monthly reports: MR. GRAHAM: All right. Has he reviewed the monthly reports? A. Yes, I reviewed the monthly reports. MR.

GRAHAM: You’ve reviewed the monthly reports for the three years, ah, leading up to this – the two and a half years leading up to the incident? A. Majority of them. Yeah. MR. GRAHAM: Okay. From reviewing those reports, do you have any information that Mr. Benzaquen is asking for [about winter maintenance of the premises]? A. No. [ 98 ] Benzaquen then asked the witness, at Q. 176, “what’s normally contained in those reports, the ones you reviewed?” A. In general, there’s income information. There’s tenant sales information.

There’s leasing information . . . income statements . . . balance sheets, operating reports. [ 99 ] And, at Q. 180: Q.180 How about with respect to outdoor maintenance, what’s usually in there? A. Ah, just what would be in a – if there’s any specific issues that the property manager wants to bring to our attention in terms of maintenance. It is this last answer that Benzaquen argues makes the monthly reports relevant for the period requested. [ 100 ] The witness, at Q. 184, was asked whether he reviewed the monthly reports for March and April of 2008 and he answered. “Not recently.” This prompted the question:

Q.185 Okay. Can I have you – get an undertaking for you to review the reports for March and April 2008, and advise if there is anything, ah, in there relevant to the ice or snow conditions in the parking lot? MS. WAHLMAN: Ah, we’ll take that under advisement. I just wanna make sure that there’s not – it has nothing to do with communications, with privileged communications. [ 101 ] Benzaquen then went on to ask for copies of the reports: Q. 189 Okay. Can I just get an undertaking also to produce the documents? MS. WAHLMAN: Also under advisement . . .

If there’s anything relevant in it that’s not privileged, you can have it. [The “under advisement” later became a refusal.] [ 102 ] By Q. 441, the request by counsel was “amended” and it became the source of the refusal: Q. 441 Could we just amend that to . . . October 2007 through to March of 2008? [ 103 ] Although the evidence from the representative of Retrocom on discovery was that he did not have “any information that Mr.

Benzaquen is asking for,” he did testify that the monthly reports raise “specific issues that the property manager wants to bring to our attention in terms of maintenance” and, further, that he had not reviewed the reports in question “recently.” Consequently, there is a cloud of uncertainty hanging over the recollection of Retrocom as to the contents of the reports, such that I think they should be produced, with all matters not relating to maintenance of the parking lot being redacted. [ 104 ] The refusal is improper. (

h) conclusion on refusals-branch of motion by plaintiffs [ 105 ] Subrule 34.15 of the Rules of Civil Procedure contains four sanctions that may be imposed by a court where a party refuses to answer a proper question or to produce a proper document. I will set out, for present purposes, the operative words of the subrule: 34.15

(1) Where a person . . . refuses . . . to answer any proper question, to produce a document . . . that he or she is required to produce . . . the court may, (

a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at his or her own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer; (

b) where the person is a party . . . strike out the party’s defence; (

c) strike out all or part of the person’s evidence, including any affidavit made by the person; and (

d) make such other order as is just. [ 106 ] The single sanction sought by the plaintiffs in their motion is the re-attendance of the representative from Retrocom to answer the questions for which answers were refused. [ 107 ] The only refusal by Retrocom that was not proper concerns Q. 441 and the production of the monthly reports.

Retrocom shall, within 30 days of the release of these Reasons, provide to the plaintiffs copies of the monthly reports for the period October 2007-March 2008, with the contents redacted except for information in respect of the maintenance, snow removal and salting of the Wal-Mart parking lot (which I have been referring to as “the premises”). [ 108 ] Retrocom shall re-attend, at its own expense, to answer any proper questions arising from the monthly reports. [ 109 ] Subrule 30.07 (

b) of the Rules of Civil Procedure obligates a party who, after serving an affidavit of documents, “discovers that the affidavit is inaccurate or incomplete . . . [to] forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents.” [ 110 ]

Schedule “B” in the affidavit of documents of Retrocom has created much confusion and, with some justification, resulted in multiple and redundant questions on discovery. Accordingly, although the plaintiffs have not requested this relief, I am ordering Retrocom to comply with subrule 30.07 (

b) and serve a supplementary affidavit of documents within 30 days of the release of these Reasons, with the affidavit to include an accurate list of

Schedule “B” documents and sufficient particulars to meet the requirements of clause 30.03(2) (

b) of the Rules of Civil Procedure . [ 111 ] The balance of the relief sought by the plaintiffs in the refusals-branch of their motion is dismissed, costs aside. 3. Motion of Retrocom [ 112 ] The second motion before the court is that of Retrocom in which it is said that the plaintiffs have not fulfilled the undertakings from their discovery. [ 113 ] At the time the motion was served, Retrocom alleged that there were 12 unsatisfied undertakings of the female plaintiff.

Mid-way through the written submissions, that number had been reduced to six; and, by March 4, 2013, near the end of submissions, only four were said to be outstanding (with Benzaquen insisting throughout that all had been satisfied).

(

a) to provide particulars of all out-of-pocket expenses [ 114 ] Paragraph 14 of the amended statement of claim seeks damages for “medical, x-ray, drug, physiotherapy, extra household and extra transportation expenses” incurred by the female plaintiff due to the injuries that she sustained.

Position of the Plaintiffs Position of Retrocom Benzaquen advised, by letter dated March 20, 2013, that “we are in the process of obtaining an economic loss report and [this undertaking] will be answered upon service of same.” Wahlman states: “Two invoices for a natural health drug dated in 2009 . . . and invoices for physiotherapy [have been] produced. It is uncertain if this forms all or part of the out-of- pocket expenses.

The plaintiff gave evidence at discovery of other possible expenses, but no other supporting documentation or itemization has been produced.” [ 115 ] An economic loss report is not needed to supply the requested information. Out-of-pocket expenses are established through the production of invoices, cancelled cheques and receipts. The position of the plaintiffs is not responsive to the request being made. [ 116 ] This undertaking has not been satisfied. (

b) to provide particulars of the female plaintiff’s loss of income claim [ 117 ] At paragraph 12 of the amended statement of claim, it is alleged that, as a result of the negligence of the defendants, the female plaintiff “has lost wages and income and may continue to lose wages and income into the foreseeable future.

The full particulars of the said losses are not now available.” Position of the Plaintiffs Position of Retrocom Benzaquen advised, by letter dated March 20, 2013, that “we are in the process of obtaining an economic loss report and [this undertaking] will be answered upon service of same.” “[T]his fall happened in 2008 and experienced counsel and the [female] plaintiff should have some ability to provide particulars of income loss at this point, if any, given production of tax returns and answers from discovery by [the female plaintiff] that she had little time off work up until a separate injury incident occurring in 2010.

An economic loss report may later be used to correct an answer to the undertaking if needed.” [ 118 ] Clause 25.06(9) (

b) of the Rules of Civil Procedure stipulates that “the amounts and particulars of special damages [41] need only be pleaded to the extent that they are known at the date of the pleading, but notice of . . . particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before trial.” [42] If such latitude exists in respect of before-trial losses, then certainly it also should apply to post-trial pecuniary losses. [ 119 ] It is proper for Benzaquen to take the position that the particulars of the claim for loss of income must await service of the report of the economic loss expert. [43] There is no obligation on the plaintiffs to give guesses or estimates of that loss in advance of the report.

Obviously, Retrocom is entitled to all of the relevant information available to the plaintiffs for calculating lost income, such as income tax returns and employment records (and, presumably, such information was sought and supplied on discovery). [ 120 ] The only obligation on the plaintiffs is to provide the facts of which they are aware at the time or which are obtainable upon reasonable inquiry. If the facts are insufficient, Retrocom has options. [ 121 ] This undertaking has been satisfied. (

c) to provide particulars of the female plaintiff’s loss of competitive advantage claim Position of the Plaintiffs Position of Retrocom Benzaquen advised, by letter dated March 20, 2013, that “we are in the process of obtaining an economic loss report and [this undertaking] will be answered upon service of same.” “[T]his fall happened in 2008 and experienced counsel and the plaintiff should have some ability to provide particulars of any alleged form of pecuniary damages at this point or medical support for such.

An economic loss report or medical evidence may later be used to correct an answer to the undertaking if needed.” [ 122 ] It will be seen that the positions of the parties here are the same as in (

b) above.

[ 123 ] In one of my letters to counsel, I pointed out that “loss of competitive advantage” was not pleaded in the amended statement of claim. Benzaquen did not respond, presumably because Wahlman does not seem to be concerned. She considers paragraph 1 of the amended statement of claim (which seeks “damages in the amount of $250,000”) and paragraph 12 (which I set out when addressing (

b) above) to be “broad enough to include such a claim.” I do not agree. I think that loss of competitive advantage must be expressly pleaded. [ 124 ] Wahlman further points out, on the discovery of the female plaintiff, Benzaquen advised that a loss-of-competitive-advantage claim was being advanced. Had I been Wahlman, I would have responded, “And when you amend your pleading and make that claim I will examine your client upon it.” [44] [ 125 ] Nevertheless, I have no desire to create a problem that counsel do not think exists and so I will take the undertaking as being properly sought. [ 126 ] As with (

b) above, it is acceptable for Benzaquen to await the economic loss report, but with Retrocom being entitled to all of the relevant information available to the plaintiffs, such as income tax returns and employment records. [ 127 ] This undertaking was been satisfied. (

d) to provide a copy of the collateral benefit file relating to the plaintiff from 2005 to the present Position of the Plaintiffs Position of Retrocom Request letters were sent to Ministry of Health on October 2, 2012 and November 22, 2012, with no response.

To date, Retrocom has not been provided with a copy of the collateral benefit file or with a copy of any request letter to the insurer. [ 128 ] In one of my letters to counsel, I inquired as to the meaning of “collateral benefit file,” as it seemed to me that Benzaquen should have been writing to an insurer, rather than the Ministry of Health. [ 129 ] Wahlman advises that “collateral benefit file” refers to the health benefits of the male plaintiff to which his wife, the female plaintiff, had access.

This being the case, the letters by Benzaquen are not responsive to the requested undertaking. [ 130 ] This undertaking is unfulfilled. (

e) conclusion on motion of Retrocom [ 131 ] Within 30 days of the release of these Reasons, the plaintiffs shall provide: (1) particulars of all out-of-pocket expenses; and, (2) a copy of the collateral benefit file relating to the female plaintiff from 2005 to the present. [ 132 ] The remainder of the motion, apart from costs, is dismissed. 4.

The allegations of misrepresentation against counsel [ 133 ] As I mentioned a lifetime ago, in the midst of his responding December 24, 2012 written argument on the motion by Retrocom, Benzaquen accused Wahlman of making “numerous misrepresentations” in her submissions of December 18, 2012.

Benzaquen requested an oral hearing to address the misrepresentations, but I ruled that the matter should proceed by way of written argument. [ 134 ] These accusations, effectively, became a third motion. [ 135 ] After receiving the written submissions of Benzaquen, I observed that they contained four allegations of misrepresentation (not the “numerous misrepresentations” that I was expecting as necessitating the requested oral hearing). [45] I now will deal with the four allegations. (

a) did Retrocom answer all undertakings? [ 136 ] The first alleged misrepresentation relates to this passage, from paragraph 3, in the December 18, 2012 submissions of Wahlman: As the plaintiffs’ written submissions address refusals only, it is clear that Retrocom answered all undertakings and these submissions address refusals only. [ 137 ] Benzaquen recited the undertakings history of Retrocom, showing what undertakings were outstanding at various dates and he suggested that the above passage “was an attempt to mislead the court.” Amazingly, Benzaquen has completely missed the point.

The statement “that Retrocom answered all undertakings” is clearly speaking as of December 14 th , the date of the initial written submissions of Benzaquen to which Wahlman was responding on December 18 th . In other words, the plaintiffs brought a motion against Retrocom for unfulfilled undertakings and refusals. When the written submissions of Benzaquen did not mention any unfulfilled undertakings by Retrocom, but dealt only with refusals, one may assume that, as of December 14 th , all undertakings had been answered by Retrocom. [ 138 ] The first allegation of misrepresentation is completely misconceived. (

b) did Retrocom answer most undertakings? [ 139 ] The second alleged misrepresentation is found in paragraph 18 of the December 18, 2012 submissions of Wahlman: Before the plaintiffs served this motion and twenty days after Mr. Benzaquen wrote seeking answers to Retrocom’s undertakings, on

October 23, 2012 Retrocom answered most undertakings, advised of the status of the outstanding undertakings and addressed the position on the questions refused. [ 140 ] In support of this allegation, Benzaquen states that the letter of October 23, 2012 addressed 28 undertakings and refusals, 12 of which provided answers as follows: “Inquiries have been made and will advise.” Apart, perhaps, from rewording “on October 23, 2012 Retrocom answered most undertakings” to “on October 23, 2012 Retrocom answered many undertakings,” the statements in paragraph 18 are correct.

In any event, the letter of October 23, 2012 is included in the motion materials and the court is quite capable of doing the calculations and determining an accurate arithmetic adjective. This was harmless hyperbole. [ 141 ] I find the second allegation to be frivolous and without merit. (

c) undertakings-branch of plaintiffs’ motion unnecessary? [ 142 ] The third allegation of misrepresentation concerns these words in paragraph 23 of the submissions of Wahlman on December 18, 2012: The plaintiffs did not need to bring this motion against Retrocom [in respect of unfulfilled undertakings]. The undertakings were substantially answered within 20 days of receipt of the request from plaintiffs’ counsel, and the remainder in the process of being answered prior to service of the motion. Retrocom complied with all of its undertakings not as a result of nor prompted by the motion.

All of Retrocom’s undertakings were answered less than 60 days from receipt of the requested list from plaintiffs’ counsel. [ 143 ] Benzaquen complains that Wahlman “is suggesting to the court that the plaintiffs brought an unnecessary motion when in fact the record is clear . . . that the sole cause of the plaintiffs bringing the motion was through order of the [status hearing judge] . . .” [ 144 ] Wahlman points out that some undertakings of Retrocom were fulfilled on October 23, 2012, the motion of the plaintiffs was served November 20 th and the remaining undertakings were satisfied on November 26 th , creating an inference that the “process” of complying with the undertakings had commenced before the motion of the plaintiffs was served.

I agree. [ 145 ] It was open for Wahlman to argue that the undertakings-branch of the motion by the plaintiffs was unnecessary. Her argument should never have been met with the allegation that she was attempting to mislead the court. (

d) plaintiffs moved although their undertakings were unfulfilled [ 146 ] The final allegation of misrepresentation relates to paragraph 24 of the December 18, 2012 written submissions of Wahlman: The plaintiffs brought [their undertakings] motion when substantially all of the plaintiffs’ [own] undertakings remained outstanding. [ 147 ] I find it puzzling that Benzaquen would attack this submission: firstly, it is factually accurate; secondly, it is irrelevant to any task that I face, as there is no rule that says a party must have satisfied all of his or her own undertakings before being permitted to move for fulfillment of the opposition’s undertakings. [46] (

e) conclusion on misrepresentation allegations [ 148 ] Benzaquen sent us on an unnecessary litigious detour. More seriously, he made serious and unfounded allegations against Wahlman. How should the court deal with such reckless and intemperate accusations? The options are limited. As

an act of judicial finger-wagging would be inadequate, given the seriousness of the conduct, it seems that the sanction of costs might be appropriate particularly if one views what occurred here as tantamount to a failed third motion. At the forefront of any costs considerations is whether rule 57.07 of the Rules of Civil Procedure should be applied. IV

SUMMARY OF RESULT [ 149 ] Although I have dealt with the motion of the plaintiffs in two branches, it was one motion. The motion of the plaintiffs is allowed, in part: 1. Within 30 days of the release of these Reasons: (

a) Retrocom shall provide copies of the monthly reports for the period October 2007-March 2008, with all matters not relating to maintenance, snow removal and salting of the Wal-Mart parking lot to be redacted, and, thereafter, Retrocom shall re-attend at its own expense to answer any proper questions arising from the redacted monthly reports; and, (

b) Retrocom shall serve a supplementary affidavit of documents, in accordance with subrule 30.07 (

b) of the Rules of Civil Procedure , with the affidavit to include an accurate list of

Schedule “B” documents and sufficient particulars of those documents to meet the requirements of clause 30.03(2) (b) . 2. Apart from the matter of costs, the balance of the relief sought by the plaintiffs is dismissed. [ 150 ] The motion of Retrocom is allowed, in part: 1. Within 30 days of the release of these Reasons, the plaintiffs shall provide: (

a) particulars of all out-of-pocket expenses; and, (

b) a copy of the collateral benefit file of the female plaintiff from 2005 to the present. 2. Apart from the matter of costs, the balance of the relief sought by Retrocom is dismissed.

V COSTS [ 151 ] Repeatedly, in their written argument, both counsel included submissions on costs. I found this to be curious and presumptuous. [ 152 ] It also was unhelpful, because those submissions neither reflect the degree of success or failure achieved on the motions nor specific findings that I have made.

As well, they do not address the prospect of rule 57.07 and Benzaquen being personally responsible for costs. [ 153 ] It could be said that both motions ended up being much ado about little. [ 154 ] In respect of the motion by the plaintiffs: ▪ All of the undertakings of Retrocom were satisfied by November 26, 2012 (the motion was served November 20 th ); ▪ I find that the undertakings would have been satisfied sooner if Benzaquen had not taken one year to fulfill his agreed-upon role as the transcriptionist. ▪ Only refusals were left to argue and there was success, barely, on one refusal.

I would place the success of the plaintiffs somewhere between slight and slender. ▪ The relief of a supplementary affidavit of documents was granted, but not sought by the p

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