QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 193 Date: 2010 05 31 Docket: Q.B. No. 305 of 2006 Judicial Centre: Yorkton BETWEEN: DENISE DEBORAH HILL, DARYL HILL and JEJEMA TRUCKING INC. and ARLISS DELLOW, ADMINISTRATOR AD LITEM FOR THE LATE FREDERICK EMANUEL ALVIN WIESS, SASKATCHEWAN GOVERNMENT INSURANCE, ING INSURANCE COMPANY OF CANADA, ING INSURANCE and MANITOBA PUBLIC INSURANCE CORPORATION Counsel: Ronald Balacko for the plaintiffs Christopher Weitzel for Saskatchewan Government Insurance Ian Gunn for ING Insurance Tristan Culham for Manitoba Public Insurance FIAT SANDOMIRSKY J. MAY 31, 2010 [1] The plaintiffs were operating tractor unit bearing Manitoba licence plates and pulling semi-trailer bearing an Alberta licence plate. The tractor was owned by an Alberta company and the plaintiffs, presumably husband and wife, were, at all material times, residents of the Province of Alberta. On the 22nd day of August, 2004, the plaintiffs were involved in head on collision on stretch of Highway No. 16 in the Province of Saskatchewan. The plaintiff, Denise Deborah Hill (“DDH”) sustained “right leg injury, lacerations, back injury and post-traumatic stress disorder” this being the language appearing at para. of the plaintiffs’ statement of claim. [2] The defendant, the late Frederick Emanuel Alvin Wiess (‘FW”), Manitoba resident, was operating his motor vehicle which was pulling fifth wheel trailer. His vehicle bore Manitoba licence plates. The defendant, FW, was travelling eastward, whilst the plaintiffs were travelling westward on the said Saskatchewan highway. [3] As consequence, the defendant auto insurers of each of the three provinces are named defendants. Saskatchewan, at all material times, was governed by no-fault insurance regime. [4] The plaintiffs issued their statement of claim on August 16, 2006, six days shy of the two year limitation period. In this context, the plaintiffs claimed that DDH, the female plaintiff, had not recovered from her injuries and damages were accruing but the extent thereof was not yet known. At paras. 8, 9. 10 and 11 of the plaintiffs’ statement of claim the plaintiffs plead, in general language, the following: 8. As of this date the full extent of the injuries of the Plaintiff, Denise Deborah Hill, are not completely determined as she has not yet fully recovered for [sic] her said injuries. 9. The Plaintiff, Denise Deborah Hill and the Plaintiff Daryl Hill and the Plaintiff, Jejema Trucking Inc. have suffered loss of income both past and future, the exact amounts of which are not yet fully ascertainable and leave will be asked to prove such damages at the trial of this action. 10. The Plaintiffs have incurred medical, hospital, drug and other expenses, the exact amounts of which are not yet fully ascertainable and leave will be asked to prove such damages at the trial of this action. 11. The Plaintiffs will incur further loss and expense and the Plaintiff, Denise Deborah Hill is still under treatment for her injuries and leave will be asked at the trial of this action to prove the amount of the said loss and expense and special damages for same as such are not now fully ascertainable. [5] The defendants, and each of them, have filed their respective statements of defence with the court, with filing dates of November 20, 2006, January 17, 2007 and December 30, 2008. Each defendant denies liability and raises the legal issue of which insurer and provincial insurance regime has jurisdiction and potential liability, if any, given that the Province of Saskatchewan’s The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 creates no-fault driver regime and has agreements with each of the neighbouring provinces. [6] There has been virtually no progress made in these proceedings. [7] Each of the defendants, in groups of three in all, have now brought three notices of motion before the court in chambers in which they seek the court’s order that the plaintiffs “deliver a Statement of Particulars in full response to all particulars sought in the Demand for Particulars served upon the plaintiffs by these defendants”. Those Demands were filed with the court March 14, 15 and 16 of 2010 respectively pursuant to Rule 164(4) of The Queen’s Bench Rules. The defendants each ask for a “further order compelling the plaintiffs to produce copies of all documents listed under the first schedule of their initial Statement as to Documents, as requested by Counsel for these defendants, pursuant to Rule 213 of the Rules of Court”. [8] As the parties are familiar with each of Rules 139, 164, 213 and 215, shall not repeat each Rule for brevity sake. [9] The demand for particulars filed for each of the three groups of defendants, these groups of defendants coinciding with the provinces and auto insurance coverage in those provinces, are identically worded and must, by obvious inference, be the result of consultation and collaboration between all three defence counsel. Likewise, the three notices of motion are similarly worded, dated within three days of each other, and the draft orders for relief are similar in content and very closely worded. one to the other. [10] In oral argument, each of the plaintiffs and defendants point to the other as being responsible for the delays in these proceedings. In nutshell, the plaintiffs say they have been “stonewalled by the defendants” while the defendants retaliate that the plaintiffs are obtuse and not forthcoming in making appropriate disclosure of particulars and documents so as to enable the defendants to assess their positions, and if necessary, prepare for proper examinations for discovery. The defendants collectively voiced their “frustration” with the plaintiffs and their counsel. Blame matters not in the court’s deliberations other than being possible factor going to the issue of costs of the application. [11] An overview of the case law for each of Rules 139, 164 and 215 can be found in the current edition of The Queen’s Bench Rules of Saskatchewan: Annotated, Law Society of Saskatchewan, 2001 (3rd edition, by Neva R. McKeague). [12] Particulars may be sought both before and after the filing of statement of defence or reply to defence. [13] Rule 139 states that “every pleading shall contain and contain only statement in summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which the facts are to be proved. pleading shall be as brief as the nature of the case will permit.” [14] The plaintiffs’ statement of claim accords with Rule 139 and goes, perhaps, as far in particularity as the state of health of the plaintiff, DDH, permitted on the eve of the expiry of the limitation period. Thus, the wording of paras. through 11, supra, appear in general and vague nature. [15] Rule 164 provides to the defendants right to deliver notice in writing to the plaintiffs requiring the plaintiffs to provide, “a further and better statement of the nature of their claim ... and, better particulars of any matter of which particulars should properly be given and such notices shall clearly state the particulars required.” Unlike Rule 139, which has as its main purpose the provision of sufficient particulars to enable a defendant to comprehend the nature and extent of the plaintiffs’ claim and respond with an intelligible statement of defence, Rule 164 has a different, but similar, scope. Rule 164 enables a party, after delivery of the initial pleadings of the opponent, to demand better particulars and disclosure of documents. This Rule contains at least two major purposes: first, to assess the merits of the case in greater detail then mandated by Rule 139. By more fully comprehending the details and nuances of the case, defendant may, with the appropriate disclosure, assess the merits of settlement discussions. Second, further particulars may be required in order to properly prepare for examination for discovery. There may be other considerations as well. [16] In this particular case, both the first and second reasons just stated have merit. The defendants must know, with more particularly, garnered from the passage of time and therapeutic treatment and healing of the plaintiff, DDH, the extent of her injuries and whether there will be chronic disability. The defendants are entitled to this information, at a minimum, before discovery. The defendants may require their own medical examinations of this plaintiff by request to the plaintiff or court. The defendants may further require the medical opinions or assistance of their own medical experts to understand the true nature of the injuries and how to interpret the plaintiffs’ medical evidence. The defendants’ counsel deserve the opportunity to be assisted or coached on the particular medical conditions and diverse medical opinions, in order to prepare meaningful examination for discovery. The defendants may also need the assistance of an accident reconstructionist or mechanic to assist in the preparation of a meaningful examination for discovery. To tap those resources, the defendants will need up-to-date and full discovery of particulars in order to do due diligence and prepare their respective discoveries. These are just few of the more obvious and legitimate reasons for the defence to advance the demand for better particulars and disclosure of documents, as they have. In other words, the plaintiffs’ argument to the court that this information and disclosure can be obtained at discovery, lacks merit. Consequently, there is substantive and legitimate purpose served by the defendants’ request for better and current particulars and disclosure of documents. [17] Further, even if were to accept the plaintiffs’ argument to wait for discovery, the plaintiffs are going to be obliged to do their homework and prepare the same particulars in preparation for their own examinations for discovery. Inconvenience to the plaintiffs in doing this work earlier than later is not valid argument. [18] Paragraphs 8, 9, 10 and 11 of the statement of claim were general and vague due to the circumstances that existed in 2006. Now, in 2010 and in anticipation of discoveries, or, with the benefit of healing, passage of time and the acquired certainty of the plaintiffs’ injury claim, all factors necessitate granting the defendants’ requests, for the reasons given. [19] The plaintiff, Daryl Hill (DH), indicates in his affidavit that such particulars and documents are available and this information is being assembled. He states that the plaintiffs require 60 days in order to complete their preparation of this material. [20] DH swore this affidavit, including the closing paragraph, number 22, on May 4, 2010. Twenty-four days has now elapsed. Therefore, according to DH, they should be able to provide the disclosure within 40 days of the granting of this order. [21] The defendants’ applications are granted. Each of the defendants has furnished draft order, very similar in substance, varying given the parties involved. The draft orders are to issue as an order of the court, save and excepting the request for costs, which shall be costs in the cause. It would be premature on my part to award costs at this stage. The trial judge will be able to see the reply to demands for particulars and be better positioned to assess the merits of these motions than am able to infer from the material presently before the court. J. N. S. SANDOMIRSKY
The litigation revolved around a claim by the plaintiffs for damages that resulted from a motor vehicle accident. The plaintiff alleged damages from injuries in a statement of claim issued in 2006. In 2010, the defendant insurance companies made a demand for particulars seeking production of documents listed in the plaintiff's Statement as to Documents, most of which related to determining the extent of the plaintiffs injury. Counsel for the plaintiff opposed the application and suggested the issues were for discovery. HELD: The purpose of Queen's Bench Rule 139 is to provide the defendant with sufficient particulars to comprehend the nature and extent of the plaintiff's claim and respond with an intelligible statement of defence. Rule 164 allows a defendant to make a demand for particulars and disclosure of documents to assess the merits of the case, assess the merits of settlement and to prepare for examination for discovery. In this case, the defendants are entitled to know the current medical condition of the plaintiff prior to discovery because they might need further medical examinations, medical opinions and the assistance of an accident reconstructionist or mechanic to prepare to represent their client at the discovery. The plaintiff was granted 40 days from the date of the order to reply to the demand for particulars.