The case of Trumble v. Soomal, 2020 ONSC 8097 (CanLII) sees the Court addressing the law on productions and specifically, whose obligation it is to pay for the usual medical evidence used to substantiate a plaintiff’s personal injury claim.
It is a short decision, noting the defendants were requesting the somewhat ‘normally requested documentation’ from three years prior to the accident to present. These included the records of all doctors, treatment providers & hospitals, the decoded OHIP summary and a copy of the AB file.
The plaintiff took the position that she would be relying on limited documentation for trial. Her affidavit did not reference the family doctor’s records prior to the date of accident, the neurologist records, any therapies and/or tests other than those conducted at the Cambridge Hospital, which are contained in the doctor’s records but not specified in Schedule A to her Affidavit of Documents.
Based on the evidence before Justice Sloan, the medical records requested did not appear to be onerous or expensive to obtain. Productions to that point were far from voluminous or expensive. Justice Sloan found it more likely than not that the production being requested would be necessary to ultimately assess the case by the parties and if necessary, by a jury or the court.
In assessing the case at bar, the documents being requested were deemed routine and reasonable and were producible at the expense of the plaintiff. The issue of production costs was analyzed by Justice Sloan, concluding that if the plaintiff could not 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. Accordingly, it would be 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.
Justice Sloan left 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 were ordered to produce a further and better affidavit of documents and produce the documents requested by the defendant at the plaintiff’s expense.
The takeaway from the case settles where the burden of costs lie in “run-of-the-mill” personal injury files. Provided that documents are of the routine variety speaking to the plaintiff’s injuries as required to assess the merits of the claim, costs would usually be incurred by the plaintiff. The Court will consider the relative complexity of the file and costs spent to date as factors to determine whether a possible access to justice issue may prevent a plaintiff from paying. Thus, the notion of “I will get the documents if you pay for them up front”, as seems to be the approach taken by many plaintiff’s counsel, is not the approach that this case dictates be taken.