Auditor General releases the 2019 Annual Report http://www.auditor.on.ca/
http://www.auditor.on.ca/en/content/annualreports/arreports/en19/2019AR_v1_en_web.pdf
Judges and Ontario government ‘consistently hampered’ audit of justice system delays, auditor general says
Nearly 70,000 patients injured in Ontario’s hospitals each year: Auditor
College of Physicians and Surgeons continuity of care policy puts patients at risk
Ontario chiropractors governing body in feud with college for allowing chiropractors to make false medical claims
[2] There are three issues in this case:
a. Whether the defendants, Michael Maracle, Jamie Walker, Ashley Kelsey, and Lianne Barbara Furlong, Vice President, Legal and Chief Litigation Counsel, from Aviva Insurance Company of Canada, should be compelled to attend for examinations for discovery on December 12, 2019, or such date as may be ordered by the court;
b. Whether the appointment set for examinations for discovery of the plaintiffs on October 1, 2019 should be struck and whether the certificate of non-attendance of the plaintiffs on that date should be struck; and
c. Whether Aviva should be compelled to produce an appropriate and further and better affidavit of documents, including detailed schedules, by a date to be ordered by the court.
RESULT:
[3] The plaintiffs’ motion is granted.
[4] The affidavit of documents sworn by Aviva on July 27, 2017 and served by Aviva on June 17, 2019 was deficient and not in compliance with the Rules. As a result of Aviva failing to serve an appropriate affidavit of documents, Aviva has not preserved for itself priority in conducting examinations for discovery first. Service of an appropriate affidavit of documents is an absolute requirement in order to preserve priority in conducting examinations for discovery.
[5] An order shall issue that the defendants, Michael Maracle, Jamie Walker, Ashley Kelsey, and Lianne Barbara Furlong (from Aviva) shall be compelled to attend for examinations for discovery. As Aviva is not available on December 12, 2019, the examinations for discovery of all parties shall take place within the approximate four-month period between February 17, 2020 and June 19, 2020 on consecutive days. The plaintiffs shall examine the defendants first to be followed immediately thereafter by the examination of all the plaintiffs by the defendant Aviva.
[6] The examinations for discovery of all of the plaintiffs and all the defendants shall take place in Kingston on consecutive days within the specified time period, unless otherwise specifically and unequivocally agreed to in writing by counsel. Once the dates are determined, the plaintiffs and Aviva shall serve their appropriate notices of examinations in accordance with the above order of directions and dates selected. If counsel are unable to agree upon the dates for the examinations for discovery by December 31, 2019, I may be spoken to and I will set the dates for the examinations of discovery to proceed, upon being requested to do so by either counsel.
[7] The plaintiffs are entitled to conduct their examinations for discovery of all the defendants first, in the order to be determined by the plaintiffs, such examinations to be held before the defendant Aviva examines the plaintiffs. The examinations of the plaintiffs shall be conducted in the order to be determined by the defendants.
[8] The notice of examination of the plaintiffs returnable October 1, 2019 in Kingston is struck and is of no force and effect. The certificate of non-attendance of the plaintiffs for examinations for discovery obtained by Aviva for October 1, 2019 is struck and is of no force and effect.
[9] The defendant Aviva shall be compelled to serve an appropriate and further and better affidavit of documents, including detailed schedules on or before January 15, 2020 in accordance with the Rules.
[10] Costs are reserved. If counsel are unable to agree on costs by December 31, 2019, counsel shall obtain a date for argument of the issue of costs before me from the Belleville trial coordinator between January 20, 2020 and February 14, 2020 to argue the issue of costs on the following terms:
(a) Both counsel shall serve and file their costs outline and any materials to be relied upon no later than 5 days before the hearing date as set by the court.
(b) The argument of the issue of costs shall be conducted by telephone conference held on the record.
(c) If there is non-compliance by any party, the issue of costs will be determined based upon the material filed as at the date set for the hearing of the argument on costs.
___________________________________________________
Sarno v. Murphy, 2019 ONSC 7008 (CanLII), <http://canlii.ca/t/j3r3d
[1] This was a three-and-a-half-week trial where the plaintiff was awarded $36,000 in damages by the jury. Given that this is less than the vanishing deductible amount, I dismissed the action after the verdict. I entertained both written and oral costs submissions in this matter.
[15] Therefore, when I consider all the aforementioned factors and applicable caselaw, it occurs to me that the plaintiff would reasonably expect to pay $150,000 all inclusive at the end of trial. Accordingly, I hereby order that amount in costs.
[16] I note that the plaintiff is a woman of limited means and that her litigation insurance will only cover $93,000 of this award. To suggest that the plaintiff can easily come up with this money ignores the obvious. Therefore, in the exercise of my discretion and given the principle of fairness, the plaintiff has 12 months to pay.