Walker v. Doxtator et al, 2018 ONSC 2112 (CanLII)

Plaintiff’s 30.10 Wagg motion found to be premature where pleadings still open.    

Date Heard: March 16, 2018 | Full Decision [PDF]

The Plaintiff brought a motion under rule 30.10 of the Rules of Civil Procedure seeking to require, the non-party, the Attorney General of Ontario, to produce the Crown Brief that involved a motor vehicle accident occurring on August 9, 2015. The Plaintiff was involved in this accident as a passenger in a motor vehicle operated by the defendant, River Doxtator and owned by the defendant, William Doxtator.

The statement of claim was successfully served on the defendants, River Doxtator and Intact Insurance Company but they had not yet been required to serve their statement of defence. The Plaintiff was unable to locate the defendant, William Doxtator, and an extension to serve him had already been granted.

The Attorney General agreed to provide the last known address of William Doxtator and the VIN number of the vehicle involved in the accident but nothing more. The Plaintiff relying on rule 30.10 sought a more complete copy of the Crown Brief.  Rule 30.10 provides as follows:

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

The Plaintiff bears the onus of establishing that both prongs of rule 30.10 are met.  In deciding the motion, Justice McArthur noted that the test for relevance is higher than in the discovery context. There must be a reasonable possibility that the information sought is logically probative of a material issue in the action where a “material issue” is one “which, if determined in favour of a party, would influence the court toward finding in favour of such party in the action.”

In order to establish relevance, the Plaintiff submitted that it could be reasonably anticipated that one or more defendants may dispute liability and damages or that contributory negligence may be raised. Further, the court may be asked to determine if the uninsured motorist coverage provisions of an insurance policy were engaged.

The Attorney General responded by submitting the issues could not be determined based only on a statement of claim.  The issues would not be defined until statements of defences were delivered or the time for doing so had passed. Justice McArthur agreed with the Attorney General’s position that because pleadings had not yet closed, the Plaintiff was not yet in a position to meet the first part of the test in rule 30.10(1)(a).  The Plaintiff’s motion was dismissed without prejudice to the right to renew it once pleadings closed.

 

Read the full decision [PDF]
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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.