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Fridays With Rogers Partners

At this morning’s muffin meeting, we discussed a case involving a plaintiff’s request for CCTV footage and a case regarding a dispute on the terms of an agreement on the assignment of benefits in a tort action

Pre-Examination Production Motion

Matthew Umbrio addressed the case of Strength of Two Buffalo Dale v. Attorney General of Canada, 2020 ONSC 2926. The plaintiff brought a production motion prior to examinations for discovery.

The action arose from the termination of the plaintiff from his full-time position as Traditional Aboriginal Elder and Cultural Advisor with Correctional Service Canada (CSC). He was terminated following an incident during a sweat lodge ceremony and due to CCTV footage that allegedly captured him sleeping on the job.

Of greater concern to the defendant, and a central reason for his termination, was that the plaintiff placed his keys on the floor while he slept. The defendant alleged that leaving his keys on the floor was a public safety concern due to the presence of inmates in the room.

The plaintiff sought production of the CCTV footage and other documents. The defendant opposed the motion, stating that the motion was premature and that the CCTV footage should not be produced due to privacy and public safety concerns.

Master Robinson first reviewed the prematurity argument advanced by the defendant. Discoveries had not yet been set, and it was argued by the defendant that the plaintiff should defer questions about the disputed documents and requests for production until the examination of the defendant’s representative.

Master Robinson held that the plaintiff could defer his questioning, but he is entitled to seek pre-examination production of relevant documents on which he wishes to discovery, especially key documents as defined in rule 30.01(1)(a). It was held that the plaintiff had not acted prematurely as the CCTV footage was significant and admittedly relevant and was not privileged.

Regarding the privacy argument, the defendant indicated that the footage showed the faces of inmates. The defendant also advanced public safety arguments. The concern was that the video could fall into the wrong hands.

Master Robinson held that parties can redact irrelevant third party information, but the Rules of Civil Procedure permit a party to obtain disclosure during discoveries regarding potential witnesses.

Ultimately, Master Robinson was not persuaded by the defendant’s arguments and held that irrelevant personal information should be redacted, but personal information identifying witnesses is anything but irrelevant.

The public safety argument was rejected because public safety could only be compromised if the plaintiff or his counsel breached the deemed undertaking rule. Without further evidence, this argument was untenable.

As a result, the footage was ordered to be produced in its unredacted and unedited form.

Dispute over Assignment of Benefits

Ankita Abraham addressed the case, Kossay El-Khodr v. Northbridge Commercial Insurance Company, 2020 ONSC 2319.  The dispute involved the interpretation of an agreement on the assignment of statutory accident benefits to the tort defendant’s insurer.

The applicant was involved in a motor vehicle accident which was tried by a jury in 2015, where he was awarded slightly more than $2.85 million. The trial judge ordered there should be no assignment of future benefits relating either to medication and assistive devices or professional services.

The defendants appealed. The appeal was argued in April 2017, and the Court of Appeal reserved its decision.

In late June 2017, before the Court of Appeal released its decision, the applicant settled his claim for statutory accident benefits and signed minutes of settlement.

The minutes of settlement included a paragraph which reads as follows:

4. The sum of $385,000.00, payable under paragraph 3 hereof, shall be payable to HUGHES AMYS LLP IN TRUST for the benefit of both Applicants herein, pending release of the decision of the Court of Appeal for Ontario in El-Khodr v. Lackie, court file number C60918, which appeal was argued on April 4, 2017, decision reserved. The following applies upon receipt of the Court of Appeal’s decision:

a)  in the event that the appeal with respect to Justice Roccamo’s refusal to grant an assignment of medical and rehabilitation benefits to Northbridge is dismissed by the Court of Appeal, the sum of $385,000.00 held in trust by HUGHES AMYS LLPshall be released forthwith to Kossay El-Khodr, by cheque made payable to CONNOLLY OBAGI LLP IN TRUST;

b) in the event that the said appeal is allowed and an assignment of Kossay El-Khodr’s entitlement to medical and rehabilitation benefits is granted to Northbridge, the sum of $385,000.00 held in trust by HUGHES AMYS LLP shall be released forthwith to the Applicant, Northbridge.

On September 19, 2017, the Court of Appeal released its decision, which allowed the respondent’s appeal.

The Court of Appeal ordered an assignment of future benefits for medication and assistive devices and specified professional services, in the amount the jury had awarded.

Given the wording of the minutes of the settlement, the applicant argued that the outcome of the appeal did not trigger either event described in the minutes of settlement.

In particular, the applicant argued that paragraph 4(b) of the minutes of settlement did not apply as the wording suggests that all of the future medical and rehabilitation benefits have to be assigned in order to trigger the specific agreement. The Court of Appeal only awarded certain enumerated future medical and rehabilitation benefits that matched the jury’s damages award and not all future medical and rehabilitation benefits.

Finally, the applicant also argued that the specific paragraph is frustrated as neither party anticipated the outcome of the Court of Appeal. As such, it would be unjust to hold the parties to the terms outlined in paragraph 4 of the minutes of settlement.

In contrast, the respondent argued that they were entirely successful on appeal, as such, triggered paragraph 4(b) of the minutes of settlement.

Justice Williams, in her analysis, noted the importance of looking at the scope of the appeal in addition to the words of the written contract, as all relevant parties were aware of the appeal before signing the minutes of settlement.

Justice Williams found that the scope of appeal was limited to two aspects of the assignment – the medications and assistive devices and professional services – and not all of the future medical and rehabilitation benefits.

Furthermore, Justice Williams noted that all of the parties were aware of the nature and purpose of the specific paragraph in the minutes of settlements, as the paragraph was drafted in a manner in which, the winner of the appeal would receive the entire amount of the settlement.

Justice Williams, as such, held the events as described in paragraph 4(b) had occurred, as the respondent was successful on the appeal and was awarded the relief they sought. As a result, the court ordered the funds held in trust to be released to the tort defendant’s insurer.