Ali v. Gibbons 2017 ONSC 5013

Disembodied hand completes Insurance Application

Where the party to be examined resides outside of Ontario, the test for determining the location of the examination for discovery is what is just and convenient for all parties based on the circumstances of the case.

Date Motion Heard: July 7, 2017 | Full Decision [PDF]

This was a motion by the Defendant, Gibbons, pursuant to rule 34.07(1) of the Rules of Civil Procedure to compel the Plaintiff to attend examinations for discovery in person, in the jurisdiction of her choice and at her own expense.

The Plaintiff resided in Kitchener at the time of the accident giving rise to this action. She resided in Edmonton at the time the action was commenced and at the time of the motion lived in Saskatoon. Both Defendants live in Kitchener.

Gibbons proposed that the discoveries of the Plaintiff be conducted in person in Saskatoon with defence counsels attending in person. Plaintiff’s counsel could have the option of attending in person at their own expense or participating by video conference and sharing the cost of video conference. The Defendants would bear the costs of a court reporter and reporting facility in Saskatoon.

The Plaintiff proposed that if her discovery was to proceed in person then it should take place in Toronto where her counsel was located and that her travel and accommodations should be paid for by the Defendants. The Defendants were agreeable to examinations in person in Toronto on the condition that the Plaintiff pay for her own travel and accommodations. Alternatively, the Plaintiff submits that if the examination is to take place in Saskatoon via video conference, then defence counsels should not be permitted to attend in person unless they also pay for the costs of Plaintiff’s counsel to attend in person.

Master McGraw agreed with Plaintiff’s counsel that it would be unfair and uneven for the Defendants’ counsel to conduct discoveries in person in Saskatoon without Plaintiff’s counsel present in the room. The Master went on to say “it is reasonable to conclude that the costs for both defence counsel and the Plaintiff’s counsel to travel to Saskatoon to attend in person would not be the most expeditious and least expensive option…Therefore, if the examination is to proceed by video conference, then the Plaintiff shall be in Saskatoon and all counsel shall be at a video conference facility in Toronto.”

With respect to who should pay costs, the Master disagreed with Plaintiff’s counsel that the Plaintiff should not be required to pay for any costs of video conferencing or her travel to Toronto. “The Plaintiff is a party to this action. She is not a non-party or a party being examined on behalf of or in place of a party and therefore, she has no automatic entitlement under the Rules to attendance costs.”

The Master gave the parties two options:

Option 1: the Plaintiff’s examination shall proceed by video conference with the Plaintiff in Saskatoon and counsel for Plaintiff and Defendants at a video conference facility in Toronto. The costs of the video conferencing to be shared by the Plaintiff (50%) and the Defendants (50%) with the Defendants to pay the costs for the court reporter and facilities in Saskatoon; or

Option 2: The Plaintiff shall attend examination in person in Toronto with the costs of the Plaintiff’s travel, meals and accommodations to be shared by the Plaintiff (50%) and Defendants (50%) with the Defendants to pay costs of the court reporter and facilities in Toronto.

Read the full decision [PDF]
Susan Dhaliwal
Written by

As a personal injury lawyer, Susan is passionate about and dedicated to obtaining fair compensation for injured victims. She knows firsthand the legal process can be complicated to navigate and uses a positive and compassionate approach when assisting her clients.

Following her call to the Bar in 2012, Susan has limited her practice exclusively to the area of personal injury. She frequently appears before the Superior Court of Justice and has successfully represented clients at arbitration before the Financial Services Commission of Ontario.

Susan is active in her community and can provide legal services in Punjabi.