) ) CHANTAL VACHON Plaintiff – v. –, 2013 ONSC 5227

CITATION : Vachon. v. Titley, 2013 ONSC 5227 COURT FILE NO.: 12-53361 DATE: 20130820 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) CHANTAL VACHON Plaintiff – and – GERARD TITLEY Defendant ) ) ) ) ) ) ) ) )) Jaye E.

Hooper, for the Plaintiff Mary Delli Quadri, for the Defendant ) ) HEARD: August 8, 2013 decision on motion Justice Patrick Smith [ 1 ] This is a motion brought by the Plaintiff, Chantal Vachon, for an order requiring the Ministry of the Attorney General to produce the Crown’s brief and investigation file with respect to charges against the Defendant relating to a motor vehicle accident that occurred on July 10, 2010 resulting in the death of the Plaintiff’s father, for which the Defendant was charged and convicted. [ 2 ] The Attorney General consents to the motion, however, the Defendant does not. [ 3 ] The Defendant has admitted liability for the accident but denies causing damage to the Plaintiff.

The sole issue in dispute is the assessment of the Plaintiff’s damages. [ 4 ] The Plaintiff submits that the documents and information sought are necessary for a just determination of the quantum of damages. In particular, the Plaintiff is alleging that the accident and death of her father may have occurred while the Defendant was texting while driving.

The Plaintiff alleges that this factor is relevant because it is an aggravating factor to the nervous shock, psychological trauma and suffering for which the Plaintiff seeks compensation. [ 5 ] The Defendant opposes the motion stating that the documents requested are of no relevance to the issue of quantification of damages and that the Plaintiff has not satisfied the onus of showing that it would be unfair to proceed to trial without having been provided the Crown brief and investigation file. [ 6 ] The Defendant also submits that because he has already admitted liability, the information sought is not probative of an issue at trial and is therefore not material or relevant. [ 7 ] Regarding the issue of fairness, the Defendant maintains that the Plaintiff was provided extensive information regarding his driving including this texting during examinations for discovery and has full information on this issue.

Accordingly, The Defendant argues that there is no unfairness in having the Plaintiff proceed to trial without the documents in question. [ 8 ] Rule 30.10 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 reads: 30.10

(1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that; (

a) the document is relevant to a material issue in the action; and (

b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[9] When documents are in the hands of a third party, the test for relevance is higher than in the disclosure context. The courtmust be satisfied that there is a reasonable possibility that the information sought is logically probative of an issue at trial: R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411; Finalyson v. Taylor Leiblow Inc., (2008) 171 A.C.W.S. (3d) 300 (Ont. Sup. Ct). [10] In Ontario (Attorney General) v. Stavro, (1995) (ON CA), 26 O.R. (3d) 39 (Ont. C.A.), the Ontario Courtof Appeal set out what factors were relevant when considering a Rule 30.10 motion: 1.

The importance of the documents to the litigation, 2. Whether productions at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairnessto the plaintiffs, 3. Whether discovery of the defendants with respect to the issue to which the documents are relevant is adequate and if not,whether responsibility for that inadequacy rests with the defendants, 4. The position of the non-parties with respect to production, 5. The availability of the documents or their informational equivalent from some other source which is accessible to themoving parties, and 6.

The relationship of the non-parties from whom the production is sought, to the litigation and the parties to the litigation.Non-parties who have an interest in the subject-matter of the litigation and whose interests are allied with the party opposing productionshould be more susceptible to a production order than a true “stranger” to the litigation.

Analysis [11] I am satisfied that the documents requested are relevant to the issue of damages and that it would be unfair to require thePlaintiff to proceed to trial without them. [12] Neither party knows what the Crown investigation file contains but it is reasonable to assume that it will contain statementsfrom several witnesses to the accident along with police investigation notes. [13] There is little or no prejudice to the Defendant by allowing the Plaintiff to receive and review the Crown file. [14] Any objection regarding relevance or admissibility may be brought before the trial judge. [15] I do not agree with the submissions of the Defendant that the Plaintiff has been given ample opportunity to question on theissue of texting and that the public interest in non-disclosure should prevail.

The Crown file may reveal additional relevant informationand may assist the Plaintiff in fully advancing her claim for damages as well as potentially useful in challenging the evidence of theDefendant. [16] While there are public interest considerations to take into account, in view of the fact that the Crown is consenting, and thepotential relevance of information and/or documentation sought, on balance it is fair and reasonable to order production of the Crownfile: D.P. v. Wagg, (2002) (ON CA), 71 O.R. (3d) 229 (Ont.

C.A.). [17] Order to issue as requested. [18] Costs are fixed in the amount of $2,500.00 payable by the Defendant forthwith. Justice Patrick Smith Released: August 20, 2013 CITATION: Vachon. v. Titley, 2013 ONSC 5227 COURT FILE NO.: 12-53361 DATE: 20130820

ONTARIO SUPERIOR COURT OF JUSTICE CHANTAL VACHON Plaintiff – and – GERARD TITLEY Defendant Judgment on motion Justice Patrick Smith Released: August 20, 2013