Ruth Davis v. Toronto Transit Commission 2018 ONSC 7527

Full Decision (PDF)

This decision relates to a motion brought by the Plaintiff for an order requiring the Defendant to provide particulars of surveillance listed in Schedule B of its affidavits of documents before she is examined for discovery. In return, the Defendant brought motions for an order requiring the Plaintiff to attend to be examined for discovery and that it be entitled to commence and complete this examination before its representative is examined.  Both parties’ motions concerned the timing of surveillance disclosure.   

The Plaintiff was injured in two separate falls while exiting from a TTC subway on October 10, 2014 and on October 7, 2016.  The statements of claim were issued on October 7, 2016 and May 3, 2018, respectively.  The Defendant served sworn affidavit of documents in both actions on June 22, 2017 and August 31, 2018.  After coordinating dates for discoveries, the Defendant also served its notice of examination on September 6, 2018.  At the time of this motion, the Plaintiff had not served a sworn affidavit of documents in either action. 

The parties agreed that the Defendant was entitled to examine the Plaintiff before the examination of its representative because it was first to serve its sworn affidavits of documents and notice of examination.  However, the Plaintiff argued she was entitled to particulars of the surveillance before her examination for discovery.  The Defendant argued that it was not required to disclose those particulars until the examination of its own representative, to be held after it had completed its examination of the Plaintiff.

Master Graham agreed with the Defendant. He indicated that the Defendant was required to disclose particulars of surveillance when examined for discovery. The timing of that examination and ensuing disclosure, in accordance with rule 31.04(3), depends on which party first served a sworn affidavit of documents and notice of examination.    Master Graham went on to say:

[30]   A surveillance report is essentially a privileged statement of a witness containing non-privileged information on the issue of damages that is subject to disclosure at the defendant’s examination for discovery.  However, non-privileged evidence contained in a privileged document is not discoverable before the examination for discovery of the party in possession of that document.  That evidence may or may not be discoverable by the opposing party before that party’s own examination, depending on who first served their affidavit of documents and notice of examination.  It was held that there was no reason to require disclosure of the particulars of the surveillance other than in accordance with the order of examinations for discovery established under rule 31.04.  The Plaintiff’s motion was dismissed and the Defendant’s motions were granted.

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.