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Sep 10, 2016

Jennifer Bruce succeeds on two of three issues on document production motion in mva action

Authors Michael S. Teitelbaum and Sean P. Tindale

Congratulations to our very own Jennifer Bruce in being successful on two of the three document production requests on a motion before Ontario Superior Court Justice George in Phul v. Georgian Bay Transport Inc., a motor vehicle tort action in which accident benefits file information was being sought.

Thanks to my partner, Sean Tindale, for his note about the decision, as follows:

Congratulations to Jennifer Bruce on her success in arguing 2 of 3 issues on a production/refusals motion in London. The motions judge agreed with Jennifer that AB surveillance shown to an AB medical assessor was relevant and producible in the tort action. The judge also found that an AB assessor's report was relevant and producible in circumstances where the plaintiff refused to consent to the release of a report to the AB insurer, and then did not ascertain whether a report was actually prepared by the assessor. The judge indicated that the onus is on the plaintiff to make inquiries about the report and satisfy the defendant, and ultimately the court, that the plaintiff has made best efforts to ascertain the existence of the report and obtain possession.

For more info, a copy of the endorsement is attached.

Well done and thank you Jennifer!

A non-cuttable and non-pasteable version of the decision is attached.

The third request which His Honour declined to order was that the plaintiff provide a list of documents arising from the accident benefits claim which have not been produced. This was asked for because a list of privileged documents, (provided after the plaintiff's affidavit of documents did not list anything in Schedule B), did not include the surveillance video. He was satisfied that a complete list of documents has been provided. His Honour also declined to order further particulars of the documents for which privilege has been claimed as this could potentially destroy the litigation privilege.

And, you will see that His Honour discusses the law regarding the production of relevant documents at paras. 35-37.

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