SUPREME COURT OF Nova Scotia
Citation: MacDonald v. Scotia Chrysler (2010) Limited, 2021 NSSC 289
Docket: Syd. No. 470254
Registry: Sydney
Between:
Kevin B. MacDonald
Applicant
v.
Scotia Chrysler (2010) Limited, FCA Canada Inc.
Respondent
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Judge: |
The Honourable Justice Patrick J. Murray |
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Heard: |
June 25, 2021, in Sydney, Nova Scotia |
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Decision: |
August 26, 2021 |
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Counsel: |
Ian Parker for Mr. MacDonald Richard Norman for Scotia Chrysler (2010) Limited Jeff Aucoin for FCA Canada Inc.
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By the Court:
Introduction
[1] This is a motion by the Plaintiff, Kevin MacDonald seeking production of documentation from FCA Canada.
[2] In the main action, Mr. MacDonald is seeking damages resulting from a fire which occurred on June 26, 2016 to his vehicle, a 2012 Ram 2500.
[3] On that date, the Plaintiff’s vehicle had a recall completed on his vehicle. This action centres around Recall P65 issued by FCA Canada, said recall which involved the diesel fuel electrical connector, which was subject to overheating.
[4] On discovery, FCA Canada’s representative, Stuart Shaw, was asked about other vehicle fires related to or allegedly related to the parts involved in recall P65. Mr. Shaw gave evidence that he was aware of four (4) other such fires.
[5] The Plaintiff now seeks production of the following documents pursuant to Civil Procedure Rules 14 and 15:
1. Copies of all documents related to any fires and vehicles manufactured by the Defendant, FCA Canada Inc., such fires as being associated with, or alleged to be associated with, the parts involved in safety recall P65, being the same recall which addresses vehicle parts which the Plaintiff claims are associated with the vehicle fire that has caused damages to the Plaintiff.
2. In particular, an Order is sought for production of all reports, documents, and notes related to the cause and origin of any such fire, and any reports, documents, and notes related to the functioning of the parts in question that were subject to the recall.
3. Further, an order is sought requiring the Defendant, FCA Canada to disclose all records regarding any concerns, complaints, or issues with the parts associated with safety recall P65; whether or not they are associated with any actual fires.
[6] The motion is contested by FCA Canada Ltd., (FCA). It says the Plaintiff’s motion should be dismissed, as the production sought is irrelevant, overly broad, and lacks probative value.
[7] The onus of establishing the relevance of the particular documents sought lies with the Plaintiff in this case.
[8] The Defendant, FCA, submits what is sought is essentially similar fact evidence, which in the context of a negligence claim, relates primarily to questions of notice. (See Hollis v. Birch, [1990] B.C.J. 1059)
[9] Relevance, as defined by Moir, J., in Saturley v. CIBC World Markets Inc., 2012 NSSC 57 means, “trial relevance”, what a trial judge would consider to be evidence that tends to prove the existence of a material fact.
[10] The Plaintiff states that in civil matters the test for admissibility of similar fact is not nearly as stringent as in the criminal context. However, it must be logically probative to an issue in the case.
[11] Pleadings are very important in determining relevance and probative value, in production motions. The Plaintiff has pleaded negligence and beach of contract, related to the fire that occurred to the Plaintiff’s vehicle. (See Saturley v. CIBC World Markets Inc., 2011 NSSC 4)
[12] Counsel have both confirmed that Requests 1 and 2 of the Plaintiff’s motion, relate to the four (4) fires, referred to in discovery by Mr. Shaw, who is the Manager of Vehicle Safety and Regulatory Compliance for FCA Canada.
[13] Among other arguments, the Defendant states this is a fishing expedition, citing decisions such as 3008361 Nova Scotia Recycling Ltd. v. Scotia Recycling Ltd., 2013 NSSC 256, and Pettigrew v. Halifax (Regional Municipality) Water Commission, 2018 NSSC 197.
[14] In addition, FCA argues that past lawsuits, and expert reports from other files are not relevant or material, and do not fall within the scope of Rule 15 or Rule 18.13. (See Araam Inc. v. Aman Building Corp., 2011 ABQB 631)
[15] FCA submits, the defective part was replaced before the fire, not by it, but by the Defendant, Scotia Chrysler (2010) Limited.
[16] In addition, it submits there are significant differences between the circumstances of the Plaintiff, and the other vehicle fires, referred to by Mr. Shaw at discovery. I will return to this later in my decision.
Issue
[17] Are the documents sought by the Plaintiff relevant and should they be disclosed.
[18] I turn to a brief review of the law in relation to the disclosure sought.
The Law
[19] Civil Procedure Rule 18.13 deals with the scope of discovery:
18.13 Scope of discovery
1) A witness at a discovery must answer every question that asks for relevant evidence or information that is likely to lead to relevant evidence.
2) A witness at a discovery must produce, or provide access to, a document, electronic information, or other thing in the witness’ control that is relevant or provides information that is likely to lead to relevant evidence.
3) A witness who cannot comply with Rule 18.13(2) may be required to make production, or provide access, after the discovery or at a time, date, and place to which the discovery is adjourned under Rule 18.18.
4) A party who withholds privileged information but decides to waive the privilege must disclose the information to each party and submit to discovery if required by another party.
5) An expert retained by a party is not subject to discovery, except as permitted under Rule 55 - Expert Opinion.
[20] Rule 14.08 provides describes the presumption of full disclosure:
14.08 Presumption for full disclosure
(1) Making full disclosure of relevant documents, electronic information, and other things is presumed to be necessary for justice in a proceeding.
(2) Making full disclosure of documents or electronic information includes taking all reasonable steps to become knowledgeable of what relevant documents or electronic information exist and are in the control of the party, and to preserve the documents and electronic information.
(3) A party who proposes that a judge modify an obligation to make disclosure must rebut the presumption for disclosure by establishing that the modification is necessary to make cost, burden, and delay proportionate to both of the following:
(a) the likely probative value of evidence that may be found or acquired if the obligation is not limited;
(b) the importance of the issues in the proceeding to the parties.
(4) The party who seeks to rebut the presumption must fully disclose the party’s knowledge of what evidence is likely to be found or acquired if the disclosure obligation is not limited.
(5) The presumption for disclosure applies, unless it is rebutted, on a motion under Rule 14.12, Rule 15.07 of Rule 15 - Disclosure of Documents, Rules 16.03 or 16.14 of Rule 16 - Disclosure of Electronic Information, Rule 17.05 of Rule 17 - Disclosure of Other Things, or Rule 18.18 of Rule 18 - Discovery.
(6) In an application, a judge who determines whether the presumption has been rebutted must consider the nature of the application, whether it is chosen as a flexible alternative to an action, and its potential for a speedier determination of the issues in dispute, when assessing cost, burden, and delay.
Governing Principles
[21] The principles governing discovery requests and disclosure, include the following:
a) The determination of relevancy for disclosure of relevant documents, discovery of relevant evidence, or discovery of information likely to lead to relevant evidence must be made according to the meaning of relevance in evidence law generally. The Rule does not permit a watered-down version.
b) Just as at trial, the determination is made on the pleadings and evidence known to the judge when the ruling is made.
c) The Court should take a somewhat more liberal view of the scope of relevance in the context of disclosure than it might at trial. This is subject, of course, to concerns with respect to confidentiality, privilege, cost of production, timing and probative value.
(d) The interpretation of the Rule “should be seen in the context of this important historical and procedural shift” from the previous, more liberal, disclosure to disclosure based on relevance, and the cost-benefit analysis of doing so.
(e) The document, information or thing must be in the control of the witness.
Analysis
[22] The Plaintiff submits they are somewhat “in the dark” in terms of the P65 recall process, and thus the reason for the document requests. It is their wish that the Defendant, FCA, not be the one to identify the “problem files”. Mr. MacDonald submits he needs to know what FCA knows. The Plaintiff says the extent of his knowledge is the letter from Plaintiff’s counsel dated May 17, 2021.
[23] In terms of similar fact, the Plaintiff’s counsel submits that unlike the cases submitted by the Defendant, such as Scotia Recycling, there is clear nexus between the events in issue. They involved the same parts, the same recall, and the same result (fires).
[24] The Plaintiff says the position of the key is one small element. In cross-examination, Mr. Shaw gave evidence that whether the key was in the ACC or in the off position, the vehicle was not susceptible to the recall condition as there would be no power supply to the electrical connector. (Paragraph 20 of Mr. Shaw’s affidavit)
[25] The Plaintiff’s goal is to find out about the fires and their origin. Their challenge, they say, is there is no list of what documents exist, in terms of submitting what is relevant and what is not.
Caselaw
[26] The Plaintiff relies on a number of cases as contained in his brief, and expanded upon in oral submission.
[27] In Canadian National Resources Limited v. ArcelorMittal Tubular Products Roman S.A. (Mittal Steel Roman S.A.), 2013 ABQB 439, the Plaintiff sought disclosure of “questions, records and information” about the quality of a pipe, manufactured by the same mill, during the same time frame as when the subject pipe was made. The disclosure sought was found to be relevant.
[28] In Tachit v. Versatile Mfr Ltg, (1978). 11 AR 544, the court made reference to Trans-Border Plastics Ltd v. Air Charter Ltd, (1982) 36 OR (2d) 731, in deciding what information should be disclosed on a faulty Cessna airplane. The court ordered disclosure of “airplane condition reports made at any time”. Once again, the alleged defects complained of were present in other aircraft of the same model, manufactured pursuant to the same plans.
[29] The Plaintiff cited the leading case in Nova Scotia, Saturley, decided in 2011, in terms of what the court must consider: Paragraph 46 states in part:
Just as at trial, the determination is made on the pleadings and evidence known to the judge when the ruling is made.
[30] In the subsequent decision in Saturley, reported in 2012, Justice Wood (as he then was) suggested the Court should take a “more liberal view as to the scope of relevance in the context of disclosure” than it might at trial. I am mindful of this in my decision. The trial here is scheduled to begin within two (2) months.
[31] FCA has argued that the Plaintiffs circumstances are not sufficiently similar so as to lead to any relevant probative evidence. In its brief, the Defendant cited the differences (listed below) as being supported by the Shaw affidavit:
1. Recall P65 involved the diesel fuel heater electrical connector which may overheat.
2. The Plaintiff’s vehicle had the recall completed. Accordingly, the defective diesel fuel heater electrical connector had been removed from the Plaintiff’s vehicle earlier on the day of the fire before the fire occurred.
3. Vehicles 1, 2, and 3 as identified by Mr. Shaw did not have the recall completed. As such they had the defective diesel fuel heater electrical connector in the vehicle when the fires occurred. The Plaintiff’s vehicle had a different part than the allegedly responsible part in Vehicles 1, 2, and 3.
4. The Plaintiff’s vehicle was in the ACC ignition position. None of the four vehicles for which the documents are sought had the vehicle in the ACC position. Per the Shaw Affidavit, energized circuits vary between the on, off and ACC position.
5. None of the vehicles were the same vehicle make and model as the Plaintiff’s vehicle being a 2012 Ram 2500.
6. The closest vehicle to the Plaintiff’s situation, the only one that had had the recall performed, involved a fire that took place one year after the recall while the ignition switch was in the off position.
[32] In short, the Defendant asks/submits, how would the information on these other fires be relevant?
[33] In addition, the Defendant points to the fact that the defective part was removed prior to the fire, and suggests how could fires that occurred with an “open recall” (defective part not removed) be relevant, when the defective part remained in those vehicles, stating it could not be, nor would it likely lead to the relevant evidence.
[34] In support of its position, the Defendant relies on several cases, including Pettigrew, citing Justice Arnold’s decision dealing a claim for damages and disclosure in other “sewer backups”:
21. Considering Rule 14.01, the test in Saturley, as well a the guidance provided in Laushway, at this stage, from the perspective of the trial judge, the requested documentation is irrelevant. It will not assist the Plaintiffs in properly advancing any of their claims. The Plaintiffs have provided no foundation for their request. It is merely a fishing expedition. ..
[35] Under Rule 15.02 a party must make diligent efforts to be informed about, search for, and acquire relevant documents for disclosure purposes.
[36] The Defendant relies on the decision in Scotia Recycling Ltd, where Justice Scaravelli refused production of investigations involving a second building fire, which had occurred in a second location.
Decision
[37] Category #1 sought in the motion is a reasonable request but should be restricted to the four fires referred to at discovery by Mr. Shaw.
[38] Category #2 requesting reports, documents and notes on the cause and origin of the (four) fires need not be produced, with one exception, which I shall address (see para.42). In short, expert reports and pleadings in other litigation files need not be disclosed. With respect to the request for any reports, documents and notes related to the “functioning of the parts in question that were subject to the recall”, this, in my view, is repetitive and overlaps with the request #1.
[39] Whether or not it is a fishing expedition, I find that production of export reports is too far reaching. Simply put the relevance of these reports and their probative value is questionable. Each case must stand on its own facts. Admissibility is a separate issue and is reserved for trial.
[40] The exception I referred to is the fourth vehicle as discussed in the Shaw affidavit at paragraphs 18(d) and 21. Although the fire in that vehicle occurred a year after the defective part had been replaced, both vehicles had been parked and the recall had been completed. Also, both trucks were 2012 Dodge Ram Trucks, albeit different models, one a 2010 Ram 2500 (the Plaintiff’s); the other a 2012 Ram 5500. In short, they were the same year.
[41] The Defendant argues the key in that vehicle was in the off position and not in the ACC position as was the Plaintiff’s vehicle. The chief reason of the Defendant for denying the Plaintiffs request for documents is that “the four fires identified by Mr. Shaw are not factually similar to the Plaintiff’s case and accordingly, are not relevant.” (see May 17th letter, Tab A of Plaintiff’s brief).
[42] I am not persuaded by that position, as I think it takes too narrow a view of relevancy in these circumstances. I accept that while it was the “diesel fuel electrical connector” that was defective, the “diesel fuel filter housing/heater” appears to be “part of the discussion”.
[43] With respect to the Defendant’s argument that the defective part had been removed, evidence that the fire occurred on the same day as the recall being completed is particularly compelling in terms of the potential relevancy of any fire occurring after the replacement part had been installed. It is as suggested in Canadian Natural Resources Limited, a “strong inference” that could “help determine negligence and breach of contract issues raised…”.
[44] Finally, Mr. Shaw in cross-examination gave evidence that various regulatory reports had been prepared and submitted to certain authorities. Examples are those submitted to Transport Canada, and under the Motor Vehicle Safety Act. He also referred to reports that may have been generated consisting of formal safety test reports from any of the investigations done.
[45] These regulatory and safety test reports, if any, are to be disclosed.
[46] Apart from that and for greater certainly the only fire (of the four fires) for which expert reports must be produced is in relation to the fourth vehicle, if any. As stated in Araam Inc. v. Aman Building Corp., 2011 ABQB 631, the inclusion of experts reports and pleadings from other lawsuits would simply confuse the issues.
[47] Category three, I find, is overly broad and given the stage of the proceeding is casting too wide a net.
Murray, J.