Ontario Superior Court clarifies rule on discovery of non-parties in a motor vehicle accident case

Plaintiff was allegedly unclear about several critical details during discovery

Ontario Superior Court clarifies rule on discovery of non-parties in a motor vehicle accident case

In a recent motor vehicle accident case, the Ontario Superior Court of Justice clarified the rule on examination for discovering non-parties.

In Rupani v. Willett, 2023 ONSC 3743, Malaika Khoja Rupani sustained severe internal and external injuries from a motor vehicle accident 2018. She filed a claim for loss of income, earning capacity, and competitive advantage.

Rupani was an employee at The Master Group Inc. at the time of the accident. The defendants opposed Rupani's claim for loss of earning capacity, loss of competitive advantage in the employment field, loss of income, or loss of income earning potential due to injuries allegedly sustained in the accident.

Examinations for the discovery of Rupani took place, where the defendants asked Rupani over a thousand questions during the two days of examinations. Rupani also produced her employment file after her examination for discovery.

The defendants asserted that, during the examinations, Rupani was unclear about several critical details regarding her employment at Master Group, including how long she remained employed at Master Group following the accident and for what reason she was terminated.

The defendants point to instances during the examination where Rupani could not answer questions about her employment. For instance, when she was asked about her duties as a junior credit agent, Rupani stated, "I don't remember. My supervisor knows better than me." In response to a question about her ability to perform her job in the months following the accident, Rupani stated that she did not remember.

The defendants argued that they could not obtain the necessary information from Rupani regarding her job performance and workplace capabilities immediately before and after the accident. Consequently, the defendants brought a motion under rule 31.10 of the Rules of Civil Procedure, seeking the court's leave to examine two non-parties for discovery—Rupani's supervisor and a human resources representative.

Rupani contended that there is no basis for the court to grant the defendant's motion since, among other things, she has provided the defendants with sufficient information regarding her employment.

The Ontario Superior Court of Justice explained that the defendants must satisfy two factors in determining whether to grant leave for discovery of non-parties. First, there must be a reason to believe that the person to be examined has information about a material issue in the action. Second, the defendants have been unable to obtain the information sought from other persons whom they were entitled to examine for discovery. In this case, that person would be Rupani.

The court found that the defendants have satisfied the first part of the test as Rupani's supervisor and a human resources representative have information relevant to a material issue in the action. However, the court found that the defendants failed to meet the second part of the test. The court, citing case law, said, "there must be a refusal, actual or constructive, to obtain the information before the applicant will be able to meet the onus."

The defendants argued that Rupani constructively refused to obtain information during her examinations for discovery. However, after carefully reviewing the evidence, including excerpts from the examinations for discovery, the court does not believe that Rupani actually or constructively refused to obtain information from a third party during her examinations for discovery.

The court noted that Rupani answered the questions to the best of her ability. The court pointed out that the defendants did not ask Rupani to undertake to inquire of Master Group employees to see whether they had additional information that could be provided in response to the questions that Rupani was unable to answer.

Furthermore, the court said that Rupani has already satisfied an undertaking by producing her employment record from Master Group. The court found nothing in the materials and evidence suggesting Rupani was unwilling to attempt to secure information from Master Group.

Accordingly, the court dismissed the defendants' motion. However, the court said the defendants are entitled to re-examine Rupani concerning the produced employment record. If she could not provide answers to specific questions, she could undertake to obtain information from her former employer.

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