On November 21, 2023, the plaintiffs brought a motion for an order striking 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. Alternatively, the plaintiffs sought an order compelling the delivery of the affidavit of documents and the defendant’s attendance for examination.
The defendant brought a cross-motion for an order compelling the plaintiff, Zbigniew Antczak, to attend for examination.
Facts
On July 16, 2021, the plaintiff, Zbigniew Antczak (“Zbigniew”), was riding his bicycle and was struck by a motor vehicle owned and operated by the defendant, Mihran Avakian (“Mihran”).
Zbigniew suffered a severe traumatic brain injury. Zbigniew subsequently experienced short-term memory loss and an inability to form new memories, as well as deficits in decision making, attention, communication, planning, organizing, insight, judgement and reasoning. As a result of his injuries and impairments, Zbigniew was appointed a litigation guardian.
An OT Assessment Report indicated that Zbigniew had no memory of the collision, nor was he able to provide details of his treatment while in the hospital. An OT Progress Report stated that Zbigniew continued to neither have a memory of the motor vehicle collision nor being told what happened to him or why he is currently residing in a long-term care facility.
Counsel for the plaintiffs, on multiple occasions, advised that Zbigniew was incapable and had no memory of the collision due to his brain injury, and as such, Zbigniew would not be produced for examination.
On January 30, 2023, the defendant served a draft affidavit of documents and a draft discovery plan, which provided that Zbigniew would be examined for discovery.
Examinations for discovery was initially scheduled for April 24, 2023. They were rescheduled to October 26, 2023, at the request of the counsel to the defendant.
On October 20, 2023, the defendant’s counsel advised that he was in possession of a Crown Brief for the defendant’s Highway Traffic Act charges and would not be producing it prior to the examination due to a deemed undertaking. Counsel further took the position that Mihran would not show up for the examination unless the plaintiffs provided an undertaking not to seek continued discovery subsequent to the Crown Brief and/or police file being produced.
The plaintiffs did not provide the undertaking sought by the defendant and the defendant did not appear for the scheduled examination.
Plaintiff’s Motion to Strike the Statement of Defence
Associate Justice Rappos relied on the decision in Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), which dealt with the appropriateness of striking a party’s pleading under subrule 30.08(2)(b) of the Civil Rules of Procedure. The Court of Appeal noted that the relief is not restricted to “last resort” situations, but that “courts usually want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out its pleading.”
Associate Justice Rappos confirmed that the striking of a pleading is extraordinary and a severe remedy, it should not be made without providing the defaulting party an opportunity to cure the default and the court should aim to find a fair balance between the need to move the action along and the maintenance of procedural fairness.
While the defendant’s refusal to be examined was deliberate, clear and unequivocal, he provided a credible commitment to cure the default after the completion of the criminal trial and once the Crown Brief and/or police report may be produced. Associate Justice Rappos confirmed that this was a reasonable explanation for the defendant’s default.
The plaintiff’s motion to strike the statement of defence was dismissed on the basis that the defendant’s failure to serve a sworn and complete affidavit of documents and to attend examination for discovery did not constitute conduct that warranted a dismissal of his statement of defence.
Associate Justice Rappos refused to compel the defendant to be examined on a specific date as it was unknown whether the Highway Traffic Act trial had been completed or if the Crown Brief and/or police report had been produced.
Defendant’s Motion to Compel Zbigniew to Attend for Examination
Associate Justice Rappos relied on R v. Marquard, where the Supreme Court of Canada stated that: “Testimonial competence comprehends: (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate …”. The Supreme Court of Canada continued by indicating that: “The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable.”
Associate Justice Rappos agreed that the medical reports clearly indicated that Zbigniew suffered a severe traumatic brain injury, he had no memory of the motor vehicle collision, he had difficulty communicating, he had been found to be incapable and the Court had appointed a guardian for personal care and property under the Substitute Decisions Act. Reports from medical practitioners note Zbigniew’s cognitive deficits and concerns about his judgement.
The defendant’s motion to compel Zbigniew to attend for examination was dismissed on the basis that he was not competent to give evidence.
This decision provides counsel to plaintiffs the opportunity to refuse to produce their clients if they are suffering from traumatic brain injuries that render them unable to recall relevant information or communicate that information effectively.
