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Discovery Motions - Hoist by Her Own Petard: Hamlet 2.0

 Apr 11, 2018 9:00 AM
by Kevin Mitchell

In this Shakespeareanesque drama respecting three related motor vehicle tort actions, Aviva, as third party, successfully motioned under Rule 31.10, at what appears to be the outset of the trials, to discover three “non-parties”. All three plaintiffs were in the same vehicle and represented by the same lawyer but each (more likely their lawyer) elected to sue the defendant, Backs, in three different actions. Despite an earlier order to be tried together or one after the other, the actions remained separate proceedings.

The non-parties to be discovered were actually the three plaintiffs; each a technical stranger to the others’ cases. Aviva wanted testimony from the two ‘strangers’ in each case as to the effects of the accident upon each plaintiff going both to credibility and damages. The questions were refused in discoveries about two years prior as not being relevant to the action in which they were being asked.

Mr. Justice de Sa in his April 4, 2018 reasons held that use of the Rule was an exception but not meant as a means to limit access to a witness with relevant evidence. Technically, considering the order for trial together there was a right to ask the impugned questions which were clearly relevant and not collateral. The decision to sue in three actions and take a narrow view of relevance was felt to frustrate the discovery process. The plaintiffs’ positions added costs and delay to the proceedings and contravened various principles, not the least of which was their determination on the merits. Some might say that concept has suffered for some time now.

The motion was granted for discovery of each of the non-parties. Aviva was awarded $7,000.00 in costs. Rosencrantz and Guildenstern should have been so lucky. Creative use of the Rules, yes. Ultimately in the best interest of the plaintiffs, no. See Kissoon v. Aviva 2018 ONSC 2167.


Kevin is a Partner of Samis+Company. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters. 

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