Compelling Discovery and Striking Pleadings
A recent motion was brought at the Superior Court of Justice regarding the producibility of individuals under disability for discovery, and the refusal of a party to do so. The motion decision in Antczak v. Avakian, 2024 ONSC 1715 serves as a good reminder of the fundamental principles for refusing the production of a disabled witness for examinations for discovery.
Context
The decision arises out of an unfortunate collision between a motor vehicle and a cyclist. As a result of the collision, the plaintiff was rendered disabled, and the action was brought by a litigation guardian.
As the action proceed to examinations for discovery, counsel for the defendant sought to examine the disabled plaintiff. Counsel for the plaintiff refused to produce the disabled plaintiff, on the basis that they were incapable of undergoing the examination and had no memory of the collision.
At the same time, counsel for the defendant advised that they would not produce the defendant for discovery without an undertaking that the plaintiff would not seek to re-examine the defendant after the disclosure of the crown brief, which the defendant refused to produce prior to the discovery. The plaintiff’s refused this undertaking, leading to a situation where both parties were refusing to produce witnesses for examination.
Counsel for the plaintiff brought a motion seeking to strike the statement of defence due to the defendant’s failure to serve a sworn and complete affidavit of documents and to attend examination for discovery. The defendant then brought a cross motion for an order to compel the disabled plaintiff to attend examinations for discovery.
Compelling the disabled party to be examined
The disabled party was subject to a judicial order which declared that he is incapable of managing his personal care and property. Additionally, occupational therapy records were clear that the disabled person had no memory of the accident, issues with short term memory, and “profound cognitive and emotional deficits”. The disabled party was living in a locked unit in a long-term care facility and was showing great difficulties forming memories.
Subrule 31.02(5) of the Rules of Civil Procedure provides that, where an action is brought by or against a party under disability, (a) the litigation guardian may be examined in place of the person under disability, or (b) at the option of the examining party, the person under disability may be examined if he or she is competent to give evidence.
When a party submits that they are incompetent to give evidence at a discovery, it is the onus of that party to establish that the person is unable to give the evidence. In R. v Marquard[1], the Supreme Court of Canada stated that the goal of testimonial competence is not for the evidence to be credible, but that it is receivable and that the witness can recollect and communicate regarding the events in question.
Associate Justice Rappos determined that, based on the medical evidence available regarding the plaintiff’s lack of memory regarding the events in question, his cognitive issues and his frequent confusion, he would not be capable of giving evidence. As a result, the cross-motion was denied.
Motion to strike the Statement of Defence
Subrule 30.08(2)(b) provides the Court with the authority to strike out a statement of defence where the defendant fails to serve an affidavit of documents in compliance with the Rules of Civil Procedure. Subrule 34.15(1)(b) provides the Court with the authority to strike out a statement of defence where a person fails to attend an examination for discovery.
Ultimately, the decision to strike a pleading is discretionary. The striking of a pleading is considered a severe form of relief and as a result courts seek to balance the need to have claims adjudicated on their merits and the need for parties to follow court orders and statute. In Falcon Lumber Limited v. 2480375 Ontario Inc[2], the Ontario Court of Appeal noted that parties should be granted reasonable opportunity to cure noncompliance before a pleading is struck.
In this matter, the lack of a sworn affidavit of documents was cured subsequent to the submission of motion materials, but before the motion took place. However the refusal to produce the defendant remained due to the issues surrounding the disclosure of the crown brief.
Associate Justice Rappos determined that, since a party is not required to proceed to examine for discovery until the opposing party has produced all relevant documents, it is reasonable for the defendant to not want discovery to proceed until the completion of the criminal trial, when the crown brief can be produced. As a result, Associate Justice Rappos refused to strike the defence, despite the defendant’s deliberate refusal to attend examinations for discovery.
Associate Justice Rappos also refused to set a date for the discovery, as requested by the plaintiffs in the alternative, stating that he did not know when the criminal proceedings would be complete, and therefore could not compel a reasonable date.
Takeaways
This is an interesting case in which both the plaintiff and defendant brought motions which were denied, while highlighting some of the complexities which may arise in the early stages of a litigation.
Examinations for discoveries are an essential stage in a litigation and the timing of discoveries should occur after full disclosure is made by all parties. If the parties do not have all of the necessary documents, it may be appropriate for counsel to reschedule or delay discoveries until the necessary productions become available.
This case also illustrates how criminal or quasi-criminal proceedings related to civil litigation can create delay in the civil action, as essential evidence and documentation is often withheld from the civil side until the completion of the criminal or quasi-criminal litigation.
Determining whether to examine disabled parties is always a difficult balance, and consideration should be given by all parties to the capacity of the disabled party to give evidence. Where a party is capable and has memory of an incident, it is important to gather as much evidence from the party as possible, however in cases of severe cognitive injury it may not be possible for a disabled person to give evidence at all. If a disabled party is unable to attend discoveries due to their disability, it may be advisable for the opposing party to obtain an undertaking that the disabled party will not be called as a witness at trial. This helps protect from surprises and the introduction of unexpected evidence at the trial.
Finally, it is clear that courts remain hesitant to grant the extraordinary relief of striking pleadings, even in cases where non-compliance with the Rules may be deliberate. Counsel should consider the common sense factors prior to bringing a motion to strike a pleading, and they should expect that any order to strike a pleading will be accompanied by an opportunity to cure the default prior to the striking of the pleading taking effect.
[1] R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 SCR 223, https://canlii.ca/t/1frx2
[2] Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310 (CanLII), https://canlii.ca/t/j7w99