Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Superior Court, Memelli v. Bhandal, 2021 ONSC 802. In this decision, the court considered a refusals motion brought by the defendant.

Facts

This case arose from a motor vehicle accident that occurred in 2017. There was evidence to suggest that the plaintiff was also involved in an accident in 2003. The defendant sought information pertaining to that 2003 accident. In both accidents, the plaintiff injured his back.

After the 2017 accident, the plaintiff was unable to return to work. He alleged, among other things, that he sustained a traumatic brain injury, ongoing back, neck and shoulder pain and soft tissue damage, headaches, cognitive deficits, and psychological impairments from the accident.

While little information was available about the 2003 accident, a medical report from 2015 indicated that the plaintiff’s medical history included the 2003 collision and that he suffered chronic back pain as a result. The plaintiff’s tax records suggested he was unable to work for six to seven years afterwards.

At his examination for discovery, the plaintiff testified that he had occasional back and leg pain in the five years prior to the 2017 accident. His wife testified that he had been diagnosed with a herniated disc in 2003.

Refusals

Examples of the questions refused at the plaintiff’s examination for discovery include:

• How long the plaintiff was off work after the 2003 accident;
• Whether he had psychological treatment as a result of that accident;
• Whether he had a disc herniation as a result of the accident; and,
• Whether he was diagnosed with chronic pain as a result of the 2003 accident.

Position of the Parties

The plaintiff argued that the 2003 accident was irrelevant because he had recovered from it and was able to return to work in 2011. While plaintiff’s counsel conceded that there was some evidence of ongoing complaints as a result of the 2003 accident, they contended that there was no evidence of ongoing impairment, as the plaintiff was working full-time as a plumber at the time of the 2017 accident and had not received any treatment for five years prior.

The defendant maintained that the 2003 accident was relevant, especially with respect to determining whether the plaintiff was more vulnerable to injury and whether, because of the prior injuries, the plaintiff was at an increased risk of disability regardless of the subject accident.

Decision

In allowing the defendant’s motion, Justice Chown concluded that the 2003 accident and its consequences were relevant for the purposes of discovery, and ordered that many of the refusals pertaining that accident be answered.

Analysis

In assessing the relevance of evidence surrounding the 2003 accident, Justice Chown referred to the following statement of the Court of Appeal R v. Pilon:

Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties.[1]

Justice Chown held that the evidence about the 2003 accident may make the existence of a fact in issue, being the plaintiff’s current disability, more or less likely.

In support of this finding, the court noted that there was overlapping injury from both accidents, that the plaintiff’s first accident may have been quite serious (as he did not return to work for 6 to 7 years afterwards) and, therefore, it was reasonable to think that there was a connection between the plaintiff’s prior injury and current disability.

The court also held that without the records, experts on both sides could be unable to conduct a complete, accurate analysis, particularly as to whether the plaintiff had any special sensitivity (i.e. a thin skull) or some other explanation for the plaintiff’s complaints (i.e. a crumbling skull).

While plaintiff’s counsel argued all that was relevant was whether any injuries from the prior accident were ongoing, the court disagreed, and again repeated that evidence about the prior accident could be vital to the thin skull vs. crumbling skull analysis.

Finally, Justice Chown determined that because plaintiff’s counsel had conceded it would take little effort to obtain the requested records and information, the claim was serious, and the litigation was at an early stage, while it was possible that further oral discovery may be required, further discovery was not disproportionate or overly onerous.  

Takeaways

This decision suggests that where a party is seeking information about an accident which occurred many years prior, if there is evidence

• of overlapping injuries;
• that the prior accident was serious and not inconsequential;
• that, without the evidence, the opinions of experts retained by both sides may be diminished;
• that the evidence may assist in determining whether the plaintiff is a thin skull or crumbling skull plaintiff; and
• that obtaining the evidence would not be unduly or disproportionately onerous on the other party,

the party seeking the information may establish it is relevant for the purposes of discovery. 

[1] R v. Pilon, 2009 ONCA 248 at para. 33.