In the motion decision in Trumble v. Soomal, a 2020 decision, the Court addresses productions in a personal injury action and the plaintiff's affidavit of documents.
This decision starts off with a sentiment that as defence counsel, I have been dealing with routinely:
It is unfortunate that, in 2020, the case law on the issue of production of somewhat routine medical and work records in personal injury litigation has not been more definitively decided, at least on the case law referred to before me.
I have started to receive some very deficient affidavits of documents by the plaintiff which only reference the invoices for medical records, with the message that if the defendant wants the plaintiff's productions, they will have to pay for the actual productions in advance. Although I take the position that if the plaintiff intends to rely on the documents at trial, they are required to produce said documents, at their own expense, inevitably this back and forth delays the action and since there is no definitive case law on the decision, it is challenging.
However, the motion decision by Sloan J. provides authority and direction on this matter. In his reasons, His Honour made the following statements:
- As in all personal injury litigation, a plaintiff's pre-accident history is automatically called into question. Their lawyers know that before the litigation starts. In fact, 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.
- On the evidence before me, it is more likely than not that the production being requested will be necessary to ultimately assess the case by the parties and if necessary, by a jury or the court.
- In what I will term a "run-of-the-mill" type of personal injury action, I find the documents being requested are routine and reasonable and are producible at the expense of the plaintiff.
- Surely, if the plaintiff cannot afford the cost of a few hundred dollars to obtain these producible documents, that disbursement would be part of the upfront cost of doing business for the plaintiff's lawyer. It is after all, an assessable disbursement at the end of the day if the plaintiff is successful.
- The issue of whether or not this matter was taken on a contingency basis was not before the court.
- Although it was not before me, I would leave open the right of the plaintiff to question who should pay for expensive productions requested by the defendant, if the issue reaches the point of it being an "access to justice" issue.
- Therefore, the plaintiffs shall produce a further and better affidavit of documents and produce the documents requested by the defendant at the plaintiff's expense.1
This decision really provides a substantive basis to challenge the illogical position being taken by plaintiffs regarding productions and affidavits of documents. I have been fighting this fight a long time and I feel like I have a strong case law to rely upon......until it gets appealed. But until then!
1. Trumble v. Soomal, 2020 ONSC 8097
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.