Felix v. Omar, 2018 ONSC 3286 (CanLII)

On the defendant’s motion to compel answers to questions refused at discovery, questions regarding the possible criminal involvement, education and employment of plaintiff’s younger sibling were held to be not relevant, probative, necessary or proportionate to the issues in the action.  

Date Heard: May 18, 2018 | Full Decision [PDF]

The plaintiff, Kishon Felix, was 20 years old and incarcerated at Maplehurst Correctional Complex when he was physically assaulted by other inmates. Mr. Felix and his mother commenced an action against the inmates and Her Majesty the Queen in Right of Ontario, alleging in part that the Province failed to take adequate steps to prevent or stop the assault.

At discovery, the plaintiffs refused to answer a number of questions about Mr. Felix’s younger brother, including questions about his brother’s possible gang activity, criminal involvement, educational background and employment history. The Province brought a motion to compel answers to these questions, citing case law in which siblings were used in assessing the plaintiff’s possible earning capacity or life trajectory. The Province argued that because Mr. Felix and his brother were raised in the “same circumstances” and were similar ages, information about his brother was relevant to the issue of whether “but for” the assault, Mr. Felix would have had a productive career with no further criminal activity.

Master MacGraw dismissed the Province’s motion and held that the questions regarding Mr. Felix’s brother were not relevant, probative, necessary or proportionate to the issues in the action. In particular, Master MacGraw noted that the case law cited by the Province involved minor plaintiffs with no employment history of their own. Mr. Felix was 20 years old and had an educational background and employment history from which his earning potential could be estimated. Master MacGraw held at paragraph 24:

In my view, the cases relied on by the Defendant are distinguishable in numerous material respects. The main distinguishing factor is that, in the present case, Kishon was 20 years old at the time of the incident giving rise to his claim. Conversely, in all of the cases referred to me by the Defendant, the plaintiffs were minors at the time of the incidents giving rise to their claims. This is an important distinction in that Kishon has pre-incident educational and employment histories relevant to his damage claim for lost earning capacity. The plaintiffs in the cases, due to their younger ages at the time of their respective incidents, had limited or less extensive educational histories and no employment histories making sibling comparables necessary and relevant. Accordingly, I am not satisfied that this information regarding Alex is relevant, probative of matters at issue in this action, necessary or proportionate in the circumstances. Specifically, I cannot conclude that any gang involvement, criminal history or educational or employment history of Alex would contribute to the determination of the truth or falsity of Kishon’s damage claims.

 

Read the full decision [PDF]
Gillian Mays
Written by

Gillian attained an Honours Bachelor of Arts degree in English Literature from Queen’s University in 2011, receiving the Roscoe R. Miller Award and the Arts 1915 Price for academic excellence. She received her Juris Doctor from Western University in 2014 and was placed on the Dean’s Honour List.

Prior to joining Bogoroch & Associates LLP, Gillian articled at a full-service firm in London, and was called to the Bar in 2015. She has been published in The Advocates’ Journal and participated in the Gale Cup Moot, and is a member of the Canadian Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.