Case Name:

Cangiano v. Augustin

RE: Dino Cangiano, Plaintiff, and

Donna Augustin, also known as Donna Augustine, Michael A.

Couture, Lorraine Lospinusa, Constable Lisa M. Jacques and Her

Majesty the Queen in Right of Ontario, Defendants

[2010] O.J. No. 4805

2010 ONSC 3477

Court File No. 06-CV-7334CM

 Ontario Superior Court of Justice

Master L.A. Pope

Heard: June 7, 2010.

 Judgment: June 15, 2010.

(44 paras.)

Civil litigation -- Civil procedure -- Discovery -- Examination for discovery -- Attendance -- Order to attend or re-attend -- Range of examination -- Relevancy -- Motion by husband for order requiring wife to reattend discovery and provide previously refused answers and undertakings allowed in part -- Husband sued wife alleging defamation, malicious prosecution, malicious falsehood, intentional and negligent infliction of nervous shock, claiming that her allegations of domestic violence resulted in baseless criminal charges that were ultimately stayed -- Questions and undertakings related to the wife's remarriage, her treatment for herpes, her present employer from which she took maternity leave and her claim for criminal injuries compensation were relevant -- Her present address was not relevant -- Ontario Rules of Civil Procedure, Rules 30.06(1), 31.06(1), 77.12(4).

Tort law -- Practice and procedure -- Discovery -- Scope of examination -- Motion by husband for order requiring wife to reattend discovery and provide previously refused answers and undertakings allowed in part -- Husband sued wife alleging defamation, malicious prosecution, malicious falsehood, intentional and negligent infliction of nervous shock, claiming that her allegations of domestic violence resulted in baseless criminal charges that were ultimately stayed -- Questions and undertakings related to the wife's remarriage, her treatment for herpes, her present employer from which she took maternity leave and her claim for criminal injuries compensation were relevant -- Her present address was not relevant -- Ontario Rules of Civil Procedure, Rules 30.06(1), 31.06(1), 77.12(4).

Statutes, Regulations and Rules Cited:

Ontario Rules of Civil Procedure, Rule 30.06(1), Rule 31.06(1), Rule 37.10(3), Rule 57.03(1), Rule 57.03(1)(a), Rule 77, Rule 77.07(5), Rule 77.12(4)

Counsel:

Raymond G. Colautti, Counsel for the Plaintiff.

Michael F. Cooper, Counsel for the Defendants, Donna Augustin, Michael A. Couture and Lorraine Lospinusa.

Philip Pothen, student-at-law for the Defendant, Her Majesty The Queen In Right of Ontario and Constable Lisa M. Jacques.

ENDORSEMENT

1 MASTER L.A. POPE:-- The following two motions are before the court:

1. Defendants' motion to transfer this action to either Toronto or Barrie. The motion was resolved prior to the hearing on the basis that the action would be transferred to Barrie. The issue of costs of this motion was not resolved therefore, I heard submissions by all parties.

2. Plaintiff's motion arising out of the examination for discovery of the defendant, Donna Augustin, regarding refusals to answer and to give undertakings. I heard submissions by counsel for the plaintiff and counsel for Donna Augustin.

2     Given the agreement to transfer this case to Barrie, at the conclusion of the hearing I ordered that the Pre-Trial Conference in this action which is scheduled to take place in Windsor on June 30, 2010 be cancelled.

3     By way of background, the plaintiff and the defendant, Donna Augustin, ("Augustin"), are former spouses. While they were married, on November 29, 2003, an alleged incidence of domestic violence occurred which caused their physical separation. They are now divorced. As a result of the said incident, the plaintiff was charged with several counts of assault. All of the charges were eventually stayed. In this action, the plaintiff claims that Augustin committed the torts of defamation, malicious prosecution, malicious falsehood, intentional and negligent infliction of nervous shock and deceit by making certain defamatory statements to her co-defendant and aunt, Lorraine Lospinusa, who in turn repeated those statements to defendant, Michael Couture, which statements were then repeated to the police and ultimately resulted in the plaintiff's arrest and subsequent criminal charges. The plaintiff seeks damages as a result of the commission of the said torts as well as aggravated, punitive and exemplary damages.

Plaintiff's motion

4     The examination for discovery of the defendant, Donna Augustin, took place on November 5, 2008.

5     At the hearing of this motion, the plaintiff filed an updated Refusals and Undertakings Chart. None of the parties filed Factums or Briefs of Authorities. I heard submissions on the following refusals and undertakings.

6     Given that the basis of the majority of the refusals is lack of relevance, I will briefly set out the law in that respect.

7     Before proceeding, an issue must be addressed that was not specifically addressed by counsel in their submissions. The parties made submissions based on the test of relevancy, presumably given the recent amendments to the rules, in particular rule 31.06(1), which requires a party to answer questions that are "relevant to any matter in issue in the action." Similar amendments were made to the rules relating to documentary production. Prior to January 1, 2010, the test was interpreted by our courts to be a "semblance of relevance" based on the wording of rule 30.06(1) as it then was, which required a party to answer questions "relating to any matter in issue in the action." In recent decisions on discovery motions heard subsequent to the rule amendments, our courts have accepted that despite the change in wording in rule 30.06(1) effective January 1, 2010, the test for determining the propriety of questions at examinations for discovery held prior to the amendment taking effect is, absent the agreement of counsel, still the "semblance of relevancy" test. (Wood v. 156 Kingston Residences Corp., 2010 ONSC 1250, Brand Name Marketing Inc. v. Rogers, 2010 ONSC 1159)

8     I concur with the above-noted views of my colleagues. I am not aware of any agreement between counsel as to the test to be applied to the issues on this motion. However, as both counsel made submissions based on the test of relevancy, and no factums were filed to indicate otherwise, I will apply the test of relevancy, albeit taking into consideration that generally a party is to be given some latitude in the scope of discovery knowing that the trier of fact ultimately determines the issue of relevancy.

9     The authorities are clear that the pleadings define what is relevant and, as such, if the proposed discovery question is not supported by allegations in the pleadings and appear to be only a fishing expedition, the court ought not to order the questions to be answered. Put another way, the proper question is whether the pleadings in the particular case define the issues in such a way that the particular question is relevant. (Filanovsky v. Filanovsky, [2009] O.J. No. 919, 2009 CarswellOnt 1212 (S.C.J.))

Refusals

Question 1141, page 206: "If Ms. Augustin has remarried."

10     For the following reasons, I find that this question is relevant to the issues in this action and therefore, Augustin shall answer it.

11     It is alleged in the Statement of Claim that in making specific false and defamatory statements Augustin intentionally caused the police to be involved in an investigation, and intentionally set into motion a chain of events that would lead to the arrest, detention and wrongful prosecution of the plaintiff by the police. (paragraph 12) In my view, the allegations of intent on the part of Augustin form the basis for what makes this question relevant. Allegations of intention to do something connote a purpose or motive for doing so. When pled, a party is permitted, with limitations, to ask questions to explore what the possible intentions may have been. The plaintiff submits that Augustin's motive may have been to terminate this relationship in order to pursue a relationship with another man. Although this is not specifically pled, in my view, every possible intention or motive need not be pled. This is particularly so in cases where defamation and intentional torts are alleged. The intention or motive is precisely what the plaintiff seeks to discover. There may be one or move motives. A party is entitled to ask questions to learn of all possible motives. Here, Augustin's evidence is that she was in a relationship with another man at the time of her examination and that she recently had a baby. With this factual background, in my view, the issue of whether she remarried would be relevant to the seriousness of the relationship she was in at the time of her discovery, or the relationship she may have been in with another man in or about the time of the alleged assault in November 2003. Furthermore, the claim alleges malice and improper motive; therefore, it is relevant whether Augustin had improper motives in making the alleged false statements to her co-defendants and/or the police in order to get him arrested.

 Question 1160, page 209: "To produce the medical records regarding being treated for herpes."

12     For the following reasons, I find that this question is relevant to the issues in this action and therefore, Augustin shall answer it by producing the requested medical records at the plaintiff's expense.

13     Augustin counterclaimed against the plaintiff for general, punitive, exemplary and aggravated damages as a result of psychological and emotional injury caused by the plaintiff's assault and battery to her during their relationship. She claims that these injuries caused her to lose time at work, a diminished quality of life, loss of dignity and ongoing distress.

14     Augustin testified that she was raped when she was 22 years of age by a person who she was in a relationship with but not cohabiting with that person. She further testified that she has been diagnosed and treated for herpes. She was 40 years of age at the time of the examination.

15     Augustin's pleadings put into issue her psychological and emotional condition including mental distress and her quality of life arising from the alleged assault. The authorities are clear that where a party claims to have sustained injuries, physical or otherwise, the opposing party is entitled to disclosure of medical records prior to the alleged cause of action in order to assess whether the party had any pre-existing conditions and to assess the veracity of the claim. As a result, the plaintiff herein is entitled to know whether Augustin had any pre-existing emotional and psychological conditions in order to assess how they may have impacted her alleged injuries from the alleged assault. The plaintiff did not go so far as to request production of all of her medical records, only those relating to her treatment for herpes. Although, as submited, a sexually transmitted disease is a sensitive issue, given her testimony that she was diagnosed with and treated for herpes, and the fact that she has put into issue her medical condition, these records are relevant.

Undertakings

 Question 5, page 3: "to provide address where Ms. Augustin presently lives."

16     For the following reasons, this question is not relevant and need not be answered.

17     Augustin's evidence is that she resides in the Greater Toronto area ("GTA"). (Affidavit of Donna Augustin, sworn January 10, 2010 in support of the change of venue motion)

18     I am not persuaded that Augustin's exact home address is at all relevant to any of the issues in this action. The plaintiff knows that she resides in the GTA. The plaintiff has not referred to any rule of civil procedure that requires a party to disclose his or her residential address. I fail to understand how having disclosure of her home address will impact on any of the issues in this action. Given the plaintiff's serious allegations against Augustin as set out above and Augustin's grave allegations of assault by the plaintiff against her, even if her home address had a semblance of relevance, I would seriously consider whether to order her to answer that question.

 Question 9, page 4: "to provide place of employment that Ms. Augustin is presently on maternity leave from."

19     For the following reasons, this question is relevant and therefore, Augustin shall disclose the name and address of her employer at the time she commenced the maternity leave in question.

20     Augustin's testimony at her examination was that she recently had a baby and that she was on maternity leave. It is also her evidence that she worked for Canada Post as a letter carrier during her marriage to the plaintiff.

21     In her pleading, Augustin claims to have lost time at work as a result of the plaintiff's assaults on her for which she claims compensation. As such, she has raised issues relating to particulars of her place of employment both during the time the alleged assaults took place and after, number of hours worked, and so on. Further, she should have already made disclosure of particulars of her wage loss claim which, presumably, would set out the name and address of her employer. Moreover, it is relevant because the plaintiff may elect to examine a representative of her employer.

22     However, if I recall correctly from the plaintiff's submissions, he submits that he is entitled to know the address of her place of employment not merely the name of her employer. Presumably this is because he assumes that she continues to work for Canada Post and he thinks he is entitled to know the address of the particular office of Canada Post where Augustin reported (or picked up her mail). While I am of the view that the name and address of her employer is relevant to the issues in this action, I find no relevance to the address of the particular office of Canada Post out of which Augustin reported.

 Question 128, page 21: "to consent to the release of information by the CICB if Ms. Augustin does not have the claims in her own records."

23     For the following reasons, Augustin's claim to the Criminal Injuries Compensation Board ("CICB") is relevant to the issues in this action; therefore, she shall make a request of the CICB for release of its file. In the event that the plaintiff is required to make a request to the CICB, then Augustin shall provide her written consent to same.

24     Augustin's testimony is that she did not retain a copy of the claim she submitted to the CICB. The claim relates to the alleged incidences of assault by the plaintiff.

25     Mr. Cooper advised the court that he was advised recently by a representative of the CICB that it has its own procedure for requesting claims records. Essentially, the party seeking the records of the CICB must make the request directly to them and the CICB in turn decides whether to release the information. In other words, it is not as simple as Augustin consenting to the release of the information.

26     In any event, I am of the view that Augustin's claim to the CICB relates to the same issues in this action and thus the contents of the CICB file are relevant. Should there be sworn statements that form part of the CICB file, the plaintiff should not be made to proceed to trial without disclosure of them.

 Question 140, page 23: "to see if there is a transcript of Ms. Augustin's evidence which was given at the CICB hearing and to either produce it or to consent to its release."

27     Same as above decision on Question 128 - relevant.

 Question 1106, page 200: "Bank statements showing deposit of 2 cheques: cheque number 208 dated March 29th and cheque number 217 dated July 19th, 2003."

28     Although Augustin's answer was that she was unable to locate these records and that she will continue to search for them, her search shall include a request to her bank for copies of the said bank statements.

Costs of Plaintiff's Motion

29     The plaintiff has been substantially successful therefore, he is entitled to costs on a partial indemnity basis. Costs Outlines were not filed by either party and counsel made no submissions on costs of this motion. As such, if the parties are unable to agree to costs, the plaintiff shall serve and file his Costs Outline and written submissions, not to exceed two pages double spaced, by June 28, 2010. Augustin may respond by serving and filing written submissions, not to exceed two pages double spaced, by July 5, 2010.

Costs of Defendants' Venue Motion

30     This motion was resolved just prior to the hearing date when the plaintiff consented to transfer this action to Barrie; however, the parties did not resolve the issue of costs of the motion.

31     The plaintiff submits that costs of this motion be ordered as costs in the cause because the motion was not contested - the plaintiff did not deliver any responding material to the motion. The defendants, Jacques and Her Majesty The Queen in Right of Ontario ("HMQ defendants"), will consent to an order that costs of the motion be to the defendants in the cause. The remaining defendants ("Augustin defendants") seek costs payable forthwith on the basis that the motion was intended to be contested.

32     These motions were scheduled at a case conference held on December 7, 2009 when a timetable for delivery of the motion material, responding material, factums and brief of authorities was ordered and the special motion was booked for March 15, 2010 for two hours. The case management order was made on the basis that both motions would be contested. The Augustin defendants made the arrangements with the court to have the motion adjourned on consent of all parties from March 15, 2010 to June 7, 2010.

33     The defendants served a joint Motion Record in accordance with the timeline in the case management order. It contains five affidavits, including one from each individual defendant. The Augustin defendants served a Supplementary Motion Record on or about March 3, 2010 and a Further Supplementary Motion Record on or about May 17, 2010. There is no issue that the two supplementary affidavits were necessary for the motion. The defendants also served a Joint Factum and the Augustin defendants served a Book of Authorities. All of the above material was filed in time for the hearing date. The transcripts of the examination of the plaintiff were also filed. A Costs Outline and Costs Brief were filed by the Augustin defendants. A Costs Outline was filed by the HMQ defendants.

34     The defendants submit that Rule 77.12(4) applies to this motion. They rely on the case of Taske Technology Inc. v. PrairieFyre Software Inc., [2003] O.J. No. 30 (S.C.J.), where Master Beaudoin, as he then was, ordered costs to the successful defendant on a contested motion relying on Rule 57.03(1)(a), Rule 77.12(4), and the fact that the action was case managed. He stated that given those rules, "an order for the immediate payment of costs should be the norm unless exceptional circumstances exist." (para. 4)

35     Rule 77.12(4) was repealed with the coming into effect of the recent amendments to the rules on January 1, 2010. As this action continues to be case managed under the provisions of new Rule 77, 77.07(5) applies to this motion. Rule 77.07(5) replaces former Rule 77.12(4) and it provides that:

The judge or case management master shall address the issue of costs at the conclusion of each motion in accordance with rule 57.03, regardless of whether the motion is contested.

36     Similarly, with the former rule, it is mandatory that a court address the issue of costs on every motion regardless of whether the motion was contested.

37     Rule 57.03(1) requires the court to fix the costs of a contested motion and order them to be paid within 30 days unless the court is satisfied that a different order would be more just or in exceptional circumstances.

38     The issue is whether this motion was a contested motion.

39     This motion to change the venue of the action was opposed by the plaintiff when the case management order was made on December 7, 2009 as a timetable was ordered for delivery of responding material. It continued to be opposed as stated emphatically by Mr. Colautti in his letter dated February 22, 2010 as follows: "all motions regarding this action that are returnable for this March 15, 2010 date are being adjourned to June 7, 2010." (Mr. Colautti's emphasis) (Tab 2 to Costs Brief of Augustin defendants) That statement was made notwithstanding the fact that the plaintiff had not served his responding material by February 5, 2010 as ordered. While the substantive issue was resolved within weeks of the hearing date, the cost issue was not resolved. No evidence was filed that would have indicated to the defendants at any time from December 7, 2009 until the recent consent to transfer the action that this motion was not proceeding.

40     Whether an opposing party serves responding material is only one of the factors that a court ought to consider when deciding the applicability of rule 57.03(1). Motions may be opposed even though responding material is not delivered keeping in mind that responding material is optional under rule 37.10(3) at the discretion of the responding party. All of the circumstances ought to be taken into consideration including, the nature of the relief sought, when and how the motion was scheduled, whether the court made a timetable order for delivery of material, whether moving material or responding material was served by any party, whether a hearing was required, and whether the court heard submissions on any of the relief sought, including costs. The fact that no responding material was filed will affect the quantum of costs if so ordered.

41     For the foregoing reasons, I find that this motion was in fact a contested motion despite no responding material being filed by the plaintiff. Thus, rule 57.03(1) shall be applied to this motion and costs to the defendants shall follow the event on a partial indemnity basis.

42     The defendants succeeded on the relief sought to change the venue of the action. The fact that the defendants filed a joint motion record and a joint factum, and only the Augustin defendants filed a Brief of Authorities reduced the costs of the motion.

43     At the conclusion of the costs submissions, the court granted the plaintiff the opportunity to respond in writing to the quantum of costs sought by the defendants in the event that costs in the cause were not ordered. Therefore, in the event that the parties are unable to agree to costs, the plaintiff will have until July 5, 2010 to serve and file written submissions on the quantum of costs, not to exceed two pages double spaced. The defendants may serve and file a response within seven days thereafter.

44     In conclusion, the following orders are made:

1. Donna Augustin shall re-attend for examination for discovery at her own expense, and answer questions and comply with undertakings that were previously refused, as set out in the refusals and undertakings chart attached hereto.

2. The plaintiff is entitled to his costs of his motion. If parties are unable to agree to costs, submissions shall be filed in accordance with directions set out in paragraph 29 above.

3. The defendants are entitled to their costs of the change of venue motion. If parties are unable to agree to costs, submissions shall be filed in accordance with directions set out in paragraph 43 above.

MASTER L.A. POPE

cp/e/qlafr/qljzg/qlpxm/qlana