Financial hardship and COVID-19 will not excuse plaintiff from producing business records: court

Business records still sought by court, despite plaintiff’s forgoing of claim for lost income

Financial hardship and COVID-19 will not excuse plaintiff from producing business records: court

In a motor vehicle accident case, the court rejected the plaintiff’s contention that financial hardship and the effects of the COVID-19 pandemic would excuse her from fulfilling an outstanding undertaking to produce business records.

In Robbins v. Yekani, 2020 ONSC 6148, the plaintiff alleged that she experienced serious and permanent impairment of an important physical, mental or psychological function and continuing pain and suffering which would impact her enjoyment of life and her ability to fully participate in her previous recreational, social and athletic activities.

The plaintiff, who owned and operated a mental health facility within her family home where patients would stay and where she would provide them with personal care, sought $1,000,000 in damages, which included health care expenses and non-pecuniary damages, and claimed a loss of income, earning capacity and competitive advantage.

Pursuant to an examination for discovery, the plaintiff made certain undertakings to furnish business records from 2014 to date and records from three years prior to the accident to date showing how many clients she served per month, with the clients’ identifying information redacted.

The plaintiff was unable to answer the outstanding undertakings to produce these records within the agreed deadline, which prompted the defendant to file a motion before the Ontario Superior Court of Justice, asking the court to compel the plaintiff to answer the outstanding undertakings or, in the alternative, to dismiss the plaintiff’s claim.

The plaintiff’s counsel then emailed the defendant’s counsel to say that the plaintiff could not furnish these records due to financial hardship, the impacts of the COVID-19 crisis and the time-consuming nature of redacting the tenants’ names from the records. The plaintiff’s counsel also said that the business records were now irrelevant to the claim because the plaintiff had opted to forego the claim of loss of income.

The Ontario Superior Court of Justice declined to dismiss the plaintiff’s claim but granted the defendant’s motion to compel the plaintiff to answer the outstanding undertakings to provide the business records sought by the defendant during the examination for discovery.

The court cited Rule 31.07(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which imposes an obligation on the person giving an undertaking to honour that undertaking. The court noted that the undertaking was pertinent to the claim for health care expenses and non-pecuniary damages.

“A plaintiff in a motor vehicle accident case can claim health care expenses and non-pecuniary damages only if she can establish on the evidence that, as a result of the collision, she has sustained a serious permanent impairment of an important physical, mental or psychological function,” wrote Justice Robert Charney.

The business records continued to be relevant to the plaintiff’s claim because they would show whether there was an increase or a decrease in business, which could either support or undermine her allegation of serious permanent impairment, the court said. The plaintiff should furnish these documents not only if they are helpful to her own case but also if they are helpful to the defence, the court added.

The court also found that the plaintiff had failed to show how assembling these records would result in financial hardship or would be disproportionate. The plaintiff could have asked her accountant to estimate the costs of the requests or the amount of time needed to produce the records, the court suggested.

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