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Fridays With Rogers Partners

This morning, at our first weekly meeting of the year, Athina Ionita discussed the case of Trumble v. Soomal, 2020 ONSC 8097. The court considered whether the plaintiff or the defendant is obligated to pay for medical records in a personal injury action.

The plaintiff took the position that she was only required to provide records that she will be relying on at trial. The court ruled that the plaintiff’s affidavit of documents should include all documents that are relevant to any matter in issue, rather than only documents that the plaintiff is relying on.

The defendant requested records from three years prior to the accident to present, including records of all doctors, treatment providers and hospitals, and a decoded OHIP summary, along with a copy of the accident benefits file.

Justice Sloan stated that the requested records do not appear onerous to obtain or expensive. His Honour noted that, in all personal injury litigation, a plaintiff’s pre-accident history is automatically called into question.

He further indicated that “…it would seem unusual unless a limitation period was approaching, that the plaintiff’s lawyer would not routinely get approximately three years of prior records before definitively accepting the retainer and drafting the Statement of Claim.”

Justice Sloan indicated that the requested productions will likely be necessary to ultimately assess the case by the parties and, if necessary, by a jury or the court.

Justice Sloan held that the documents are producible at the expense of the plaintiff. His Honour indicated that, if the plaintiff cannot afford the cost a few hundred dollars to obtain the records, that disbursement would be part of the upfront cost of doing business for the plaintiff’s lawyer. It would be an assessable disbursement at the end of the day if the plaintiff is successful.

Although it was not before him, Justice Sloan left open the right of the plaintiff to question who should pay for expensive productions requested by the defendant, if there is an “access to justice” issue.