2017 ONSC 2318, 2017 ONSC 2318

CITATION : Ferguson v. Peel Mutual Insurance Company, 2017 ONSC 2318 COURT FILE NO.: 16-1290 DATE: 20170413 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Mark Travis Ferguson, Plaintiff AND: Peel Mutual Insurance Company, Defendant BEFORE: Justice J. Di Luca COUNSEL: Roger Chown, Counsel for the Plaintiff Marina Stoeva, Counsel for the Defendant HEARD: April 11, 2017 ENDORSEMENT [ 1 ] The Plaintiff, Mark Travis Ferguson, brings this motion to determine the order of examinations for discovery. He claims that he has the right to examine the Defendant first as he initiated the discovery process.

In the alternative, he asserts that the facts of this case support an exercise of the Court’s discretion to order the Defendant to submit to examination first, notwithstanding the order in which the notices of examination were served. [ 2 ] The Defendant, Peel Mutual Insurance Company asserts that it was the first to comply with Rule 31.04 of the Rules of Civil Procedure and that as such, it enjoys a prima facie right to examine the Plaintiff first.

The Defendant also submits that there is no reason in this case that would support the exercise of discretion to reverse the order of examinations. [ 3 ] This action relates to an insurance claim stemming from a loss following a fire that destroyed the Plaintiff’s home. A

summary of the relevant dates is as follows: September 7, 2016 – Statement of Claim issued. September 8, 2016 – Plaintiff’s counsel initiates communication regarding a timetable for pleadings, productions and discoveries. September 23, 2016 – Plaintiff’s counsel prepares draft discovery plan indicating his preferred order of discovery. October 4, 2016 – Defendant’s counsel suggests dates for discoveries in February 2017. No comment is made on proposed order of discovery. October 6, 2016 – Defendant’s counsel agrees to exchange affidavits of documents not later than 60 days before discoveries.

October 28, 2016 – Defendant serves statement of defence which asserts that the Plaintiff “has not sustained a loss that is covered by the Policy”. November 7, 2016 – Plaintiff serves a request for particulars. December 1, 2016 – Defendant serves a response to the request for particulars, an affidavit of documents and notice of examination. The affidavit of documents does not contain any documents in

Schedule “B”. December 6, 2016 – The Plaintiff’s affidavit of documents is sworn. Through administrative error, an unsworn copy is provided on December 7, 2016. The sworn version is eventually provided on January 10, 2017. December 9, 2016 – the Defendant provides a revised affidavit of documents including a particularized

Schedule “B”, as well as a response to the discovery plan noting disagreement with the proposed order of examinations. December 9, 2016 – Pleadings close. [ 4 ] Rule 31.04 of the Rules of Civil Procedure provides: WHEN EXAMINATION MAY BE INITIATED Examination of Plaintiff 31 .04

(1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after delivering a statement of defence and, unless the parties agree otherwise, serving an affidavit of documents. R.R.O. 1990, Reg. 194, r. 31.04 (1) . Examination of Defendant

(2) A party who seeks to examine a defendant for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after, (

a) the defendant has delivered a statement of defence and, unless the parties agree otherwise, the examining party has served an affidavit of documents; or (

b) the defendant has been noted in default. R.R.O. 1990, Reg. 194, r. 31.04 (2) . Completion of Examination

(3) The party who first serves on another party a notice of examination under rule 34.04 or written questions under rule 35.01 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 31.04 (3) . [ 5 ] In this case, there was no explicit agreement to waive the requirement relating to the service of an affidavit of documents in advance of a notice of examination. Rule 31.04 is clear. The order of precedence for examinations for discovery is determined by the order of service of the notice of examination.

In the absence of an agreement between counsel, a notice of examination can only be served after the affidavit of documents has been served. [ 6 ] The case law has adopted a somewhat flexible approach to the service of a notice of examination. In Risi Stone Ltd. v. Burloak Concrete Products Ltd ., [1987] O.J. No. 2462 (Ont. H.C.J.) , the Court noted that the desired practice is that the party who first initiates the discovery process should ordinarily have the option of examining first even if the party failed to serve a notice of examination first.

The Court ultimately held that in circumstances where the opposing party left the impression that the formality of the Rules was not being relied upon, the service of a notice of examination was not required in order to preserve the party’s right to examine first. However, the moving party in Risi Stone had served an affidavit of documents and could have issued a notice of examination. [ 7 ] A different scenario arose in Ambrose v.

Anderson , 2011 ONSC 4620 , where one party initiated the discovery process by proposing a discovery plan as required by Rule 29.1.03 of the Rules (a rule which was not in effect when Risi Stone was decided). The Court determined that notwithstanding the fact that a party had proposed a discovery plan before the other parties, the party had failed to serve an appropriate affidavit of documents, and as a result it had not preserved for itself priority in conducting the examinations for discovery. A similar result is found in Dominion of Canada v. Mason , 2009 CarswellOnt 172 (Ont. S.C.J.), at para. 62-63 .

These cases make clear that while the service of the notice of examination is not an absolute requirement in order to preserve priority, the service of an affidavit of documents is. [ 8 ] In this case, the Defendant served an affidavit of documents before the Plaintiff. The Plaintiff submits that the affidavit of documents was deficient and therefore a nullity. As such, the Plaintiff’s position is that he served the first complete and proper affidavit of documents. I reject this argument. While the affidavit of documents did not contain any documents listed in

Schedule “B”, I do not find that this deficiency rendered the affidavit a nullity, see Dominion Canada v. Mason , supra , at para. 65-66. In any event, the deficiency was quickly corrected and there is no suggestion that the deficiency was occasioned for a tactical purpose. The balance of the affidavit was detailed and in conformance with the Rules. [ 9 ] Within a day of commencing the action, the Plaintiff provided a proposed discovery plan that included a preference for the order of examinations.

The Defendant did not respond to the proposed discovery plan until after it served an affidavit of documents and notice of examination, though given the quick pace of events this was within the time limit contemplated by Rule 29.1.03(2).

The discussions that followed the delivery of the proposed discovery plan did not address the order of examination, though they did touch on the timing for the mutual delivery of affidavits of documents with the parties agreeing that the affidavits of documents would be exchanged no later than 60 days prior to the dates of the examinations for discovery. [ 10 ] The Plaintiff does not argue that this agreement amounted to an agreement to permit the service of a notice of examination in the absence of a served affidavit of documents.

That said, the conduct of the Defendant comes close to a tacit approval of the proposed order of examinations for discovery. The Defendant did not object to the proposed order and agreed on a time frame for the exchange of affidavits of documents. More importantly, the Defendant did not reply to the proposed discovery plan until after it served its own affidavit of documents and notice of examination.

In fairness, the Plaintiff did not follow up to confirm dates for the examination for discovery, nor did it seek clarification of the Defendant’s position on the issue of the order of the examinations for discovery. [ 11 ] It strikes me that the Plaintiff was engaged in the type of conduct that Southey J. and Master Sandler in Risi Stone noted ought to be encouraged. The Defendant for its part did not do anything wrong per se , but certainly did not go out of its way to address the proposed discovery plan in a timely fashion. This is unfortunate.

Nonetheless, the fact remains that the Plaintiff did not serve an affidavit of documents until after the Defendant served both an affidavit of documents and a notice of examination. [ 12 ] In the circumstances, Rule 31.04 is clear, the Defendant has the prima facie right to determine the order of examinations. That, however, does not end the matter. The Court retains discretion to order otherwise in accordance with Rule 31.04(3) .

That discretion has been exercised in cases where complex scheduling requirements required a departure from the rule for efficiency purposes and in cases where there exists a risk that a party will tailor its evidence, see Ezeh v. 2317706 Ontario Inc ., 2010 ONSC 4692 , at para. 8 . [ 13 ] The Plaintiff submits that the conduct of the Defendant in this case warrants the discretionary exercise of the Court’s power to change the order of examinations for discovery.

In brief, the Plaintiff submits that the statement of defence filed was not compliant with the Rules as it did not contain a concise statement of material facts. More particularly, the extremely sparse nature of the statement of defence made it impossible for the Plaintiff to file an affidavit of documents. The Plaintiff requested and received particulars which in part addressed his concern. However, the particulars were accompanied by the affidavit of documents and a notice of examination, which established priority on the order of examinations.

This, according to the Plaintiff, was a tactical manoeuvre that deprived the Plaintiff of the ability to move ahead in accordance with the proposed discovery plan and order of examination for discovery contained therein. [ 14 ] The Defendant counters this argument noting that the Plaintiff was free to file an affidavit of documents relating to the damages

allegedly suffered even if the precise the nature of the defence had not been particularized. Further, following the provision of particulars, the Plaintiff would have been free to amend the affidavit of documents with any new documents that became relevant in view of the particulars provided. [ 15 ] I agree with the Defendant. While the statement of defence is sparse in the extreme, in the circumstances of this case, I do not find that the Plaintiff was placed in the position of not knowing what documents could or should be included in the affidavit of documents.

At a minimum, the Plaintiff could have filed an affidavit of documents relating to the alleged damages suffered as a result of the fire and then revised it at a later date. [ 16 ] The Plaintiff also points to the deficient affidavit of documents filed by the Defendant as a further basis upon which the Court should exercise its discretion. Again, I disagree. I have already addressed the deficiency in the affidavit above and need not repeat myself. I do not find that the improperly completed

Schedule “B” caused any prejudice, nor do I find that it was done to gain a tactical advantage. [ 17 ] In sum, this is not a case which warrants the exercise of the Court’s discretion to direct a different order of examination for discovery. [ 18 ] The motion is therefore dismissed. [ 19 ] The parties have agreed that costs on this motion should be fixed at $3,000 all-inclusive to the successful party. I agree that this is a reasonable amount. I therefore order costs payable to Defendant in the amount of $3,000 all-inclusive in any event of the cause. Justice J. Di Luca Date: April 13, 2017