The Evidentiary Burden for Seeking Examination of a Non-Party
On August 15, 2023, the Ontario Superior Court released its decision in Rupani v. Willett, 2023 ONSC 3743, dismissing a motion by the defendants in a motor vehicle accident claim, seeking leave of the Court for an examination of two non-parties.
History of the Litigation:
This case arose from a motor vehicle accident involving the parties, in which the Plaintiff, Malaika Rupani, alleged that injuries sustained in the accident resulted in a loss of income, loss of earning capacity and loss of competitive advantage.
In the course of the litigation, the Plaintiff was examined for discovery for two days, during which she was asked questions relating to her employment history both before and after the accident. In total, the plaintiff was asked 1,268 questions over the two days.[1]
Both parties confirmed that the only undertakings asked of Ms. Rupani were to provide the contact information and names of individuals at the Plaintiff’s employer and to provide the Plaintiff’s employment file. Following examinations for discovery, the Plaintiff produced Ms. Rupani’s employment file to the Defendants.[2]
Mediation took place after examinations for discovery but was unsuccessful. After mediation, Plaintiff counsel requested the parties complete a trial certification form so the matter could be set down for trial. However, the defendants took the position that the matter was not ready for trial, and they anticipated bringing a motion to examine Ms. Rupani’s direct supervisor.
A motion was scheduled, however was adjourned as the Defendants informed Plaintiff counsel they intended to request an additional examinee to their motion to examine a non-party.
Positions of the Parties:
In support of their motion, the Defendants argued that Ms. Rupani was unclear about several key details regarding her employment including how long she remained employed following the accident and the reason for her termination.
They pointed to specific answers, such as when she was asked about her job duties and she answered “I don’t remember. My supervisor knows better than me.”
As such they sought leave of the court to examine the Plaintiff’s direct supervisor and a human resources representative.
In contrast, the Plaintiff argued that there was no basis for the Defendant’s motion since the Plaintiff provided sufficient information at her discovery regarding her employment and the Defendants failed to meet the test set out in Rule 31.10.
Legal Test under Rule 31.10
Rule 31.10(1) and (2) of the Rules of Civil Procedure states:
Discovery of Non-Parties with Leave
General
31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
Test for Granting Leave
(2) An order under subrule (1) shall not be made unless the court is satisfied that,
(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
(c) the examination will not,
(i) unduly delay the commencement of the trial of the action,
(ii) entail unreasonable expense for other parties, or
(iii) result in unfairness to the person the moving party seeks to examine.[3]
Decision:
Associate Justice Rappos began their decision by stating that the test under Rule 31.10 and commented on in Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P, 2014 ONSC 2699 (“Manga”) has two basic components:
- There must be a reason to believe that a person has information relevant to a material issue in the action under Rule 31.10(1) and
- The conjunctive factors in rule 31.10(2) must be met.[4]
The onus is on the moving party to satisfy the Court that both components of the test have been met. Only if the test has been met, will the Court have the discretion as to whether discovery of a non-party should be permitted. “If it is in the interests of justice that an examination be ordered pursuant to the rule, the Court should not hesitate to make such an order”.[5]
Analysis:
1. Relevance:
With respect to the first factor, the parties did not contest that either of the two proposed non-parties to be examined would have information relevant to a material issue in the action. The impact of the motor vehicle accident on Ms. Rupani’s ability to work was directly at issue.
As such the first limb of the test was satisfied.
2. Conjunctive Factors under Rule 31.10(2)
The court began by examining the first factor under Rule 31.10(2); whether the Defendants were unable to obtain the information sought from other persons whom they were entitled to examine for discovery such as the defendant.
In Famous Players Development Corp. v. Central Capital Corp., 6 O.R. (3d) 765, 1991 CanLII 7202 (Div. Ct.), the Divisional Court held that, under rule 31.10(2)(a), “there must be a refusal, actual or constructive, to obtain the information before the applicant will be able to meet the onus.”[6]
In support of their position, the Defendants cited Manga and Ghanim v. Ali, 2018 ONSC 407 (“Ghanim”) in support of their position that Ms. Rupani constructively refused to obtain information during her examinations for discovery.
However, the motions judge found these decisions were distinguishable from the present case.
In Ghanim¸ the plaintiff was alleged to have suffered a traumatic brain injury which left him no memory of his life before the accident or certain post-accident events. During his examination for discovery, the plaintiff repeatedly indicated he did not know the answers and suggested that counsel should “ask my wife”.[7]
In Ghanim, it was held that the plaintiff was “unable to give any direct evidence or information about his life before the accident” and “was unable to answer anything in but a superficial way, based on what others have told him and devoid of any detail”. Ultimately it was concluded that these types of answers were constructive refusals.[8]
Meanwhile in Manga, the party that was being examined was asked about the state of knowledge of a third party to which he answered: “I can’t speak for the [the third party] so you would probably have to ask them.” The Court found that this response constituted a constructive refusal.[9]
In the present case, Associate Justice Rappos found that Ms. Rupani did not actually or constructively refuse to obtain information from a third party during her examinations for discovery. The Associate Judge found that the plaintiff answered the questions put to her to the best of her ability. Furthermore, Plaintiff counsel had already satisfied the undertaking to produce the Plaintiff’s employment record.[10]
The Associate Judge also noted that the Defendants failed to ask Ms. Rupani to undertake to inquire with the Plaintiff’s employer to see whether they had any additional information that could be provided in response to the questions Ms. Rupani was unable to answer.[11]
Having found that the Defendants failed to satisfy the first factor listed in the second limb of the test in section 31.10(2), the Associate Judge found that the Defendants failed to meet their onus and the motion is to be dismissed.
Conclusion and Takeaways:
In summary, the Associate Judge dismissed the Defendants’ motion as it failed to satisfy the first factor under Rule 31.10(2) and the factors in that subrule are conjunctive and all must be satisfied.
At its broadest, this decision reaffirms the test set out in Rule 31.10 for the granting of a motion for examination for discovery of a non-party. Furthermore, the conjunctive factors listed in 31.10(2) present a robust barrier for moving parties to satisfy.
More narrowly, in terms of satisfying the first conjunctive factor, moving parties must be able to demonstrate that there was a “refusal, actual or constructive”, to obtain the information by the party being examined, that justifies the motion to examine a non-party.
Furthermore, this decision also indicates that a motions judge will strongly consider the facts and transcripts of the examination for discovery of the party, particularly the questions asked or not asked, as well as the undertakings given and/or not requested in their analysis of the limbs of the test.
[1] Rupani v. Willett, 2023 ONSC 3743, at paras 10-11.
[2] Ibid, at paras 17-18.
[3] R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE under Courts of Justice Act, R.S.O. 1990, c. C.43 – at section 31.10
[4] Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P, 2014 ONSC 2699 (“Manga”) at para. 2,
[5] McDermid Paper v. McDermid et al, 2010 ONSC 5404, at para. 25).
[6] Rupani, supra note 1, at para 32.
[7] Ibid at para 35.
[8] Ibid, at para 36.
[9] Ibid, at para 38.
[10] Ibid at paras 40-41.
[11] Ibid, at paras 42-44.