



COURT OF APPEAL FOR ONTARIO

CITATION:  Ambrose v. Zuppardi, 2013 ONCA 768

DATE: 20131218

DOCKET: C56443

Epstein, Lauwers and Pardu JJ.A.

BETWEEN

Susan Ambrose,
The Estate
    of
Murray Ambrose,
by his Estate Trustee Susan
    Ambrose
, and Benjamin David Ambrose

Plaintiffs/Respondents

and

Giuseppe Zuppardi,
Michael
    Guthenberg, DTF Trucking Inc., Ryder Truck Rental
, Mimi Chan, and Henry
    Cheung

Defendants/Appellants

Christopher Chekan, for the appellants

Justin Linden and Rachel Radomski, for the respondents

Mark Veneziano and Ren Bucholz, for non-party, Dr. Lam

Heard:  December 11, 2013

On appeal from the endorsement of Justice Carole J. Brown
    of the Superior Court of Justice, dated November 23, 2013.

ENDORSEMENT

[1]

In this action the plaintiffs seek
    damages arising out of two motor vehicle accidents in which Murray Ambrose, now
    deceased, sustained injuries. The appellants are three of the defendants.  They
    appeal the order of Brown J. dismissing their motion to examine a non-party,
    Dr. Lam, the medical doctor who looked after Mr. Ambrose while he was in a
    hospital emergency room following the second accident.

[2]

The motion judge dismissed the motion for two reasons.  First, she held
    that the examination of Dr. Lam would be fruitless given the doctor had
    provided a sworn affidavit indicating that he had no independent recollection
    of his treatment of Mr. Ambrose and that anything that could be relevant was
    recorded in his clinical notes and records.  They have been produced.  Second,
    the motion judge found the appellants motion to be premature as discoveries
    had not yet been completed.

[3]

A preliminary issue has been raised as to whether the order under appeal
    is final or interlocutory.

[4]

The appellants argue that the order below is final.  They rely on this
    courts decision in
Smerchanski v. Lewis
(1980), 30 O.R. (2d) 370
    (C.A.) in which the plaintiff appealed from an order quashing two subpoenas
    against non-parties. In concluding that the order on appeal was a final order,
    Arnup J.A. adopted the reasoning in this courts earlier decision in
Guaranty
    Trust Co. of Canada. v. Fleming
, [1946] O.R. 817 (C.A.), at pp. 828-29,
    that such an order finally and absolutely disposes of the right of the [non-party]
    to refuse to attend and be examined for discovery by counsel for the
    respondents.

[5]

However, in decisions such as
Sun Life Assurance Co. v. York Ridge
    Developments Ltd
.
(1998), 28 C.P.C. (4th) 16 (Ont. C.A.),
Smerchanski
has been weakened.  In
Sun Life
the motion judge had quashed a
    summons of a non-party witness because it did not appear that the witness had
    any evidence that could not be obtained from the parties to the action. This
    court quashed the appeal from that order on the basis that it was interlocutory. 
    It reasoned that the information sought may be available from the parties
    themselves. Weiler J.A. expressed the rationale as follows. If, after
    examining the parties, counsel for York Ridge feels it has been frustrated in
    its pursuit of information it would be able to bring a further motion to obtain
    the information. The order quashing the subpoena to Mr. Swartz was therefore
    an interlocutory order because it did not finally dispose of the issue between
    Swartz and the party seeking to examine him.

[6]

Smerchanski
was further weakened in the subsequent decision in
Royal
    Trust Corporation v. Fisherman
(2001), 55 O.R. (3d) 794 (C.A.), in which
    this court, following
Sun Life
,
emphasized that
Smerchanski
does not stand for the proposition that all orders in which the court denies a
    request to obtain information from non-parties are final.  Simply put, if the
    motion requesting information is dismissed where the information sought from
    the non-party may still be available from the parties to the action, the order
    is interlocutory.

[7]

It is of note that in
Royal Trust
, Finlayson J.A. went out of
    his way to highlight that the judgment in
Smerchanski
had been criticized
    on the basis that it does not sit well with prior jurisprudence. He expressed
    the view that
Smerchanski
does not stand for the proposition that all
    orders directed to a non-party are final and stated that the principle
    expressed in that case should not be further expanded.

[8]

We agree with this view.
Smerchanski
should be restricted to
    cases in which there are like circumstances  a ruling made in the course of a
    trial quashing a subpoena of a witness in circumstances where the information
    sought to be obtained from the witness cannot be obtained from the parties
    themselves.

[9]

It follows, as Finlayson J.A. counselled, that the reasoning of the
    motion judge in making the order under appeal is relevant to whether the order
    is final or interlocutory.  Here, the motion judge dismissed the motion to a
    large extent on the basis that since discoveries were not yet complete, it remained
    open to the appellants to question the parties about Dr. Lams treatment of Mr.
    Ambrose.  Simply put, the door to obtaining the information sought from the
    parties themselves, remains open.

[10]

Based
    on the principles that emerge from
Sun Life and Royal Trust
, the order
    under appeal is interlocutory and the appeal lies to the Divisional Court, with
    leave.

[11]

For these reasons the appeal is quashed, without
    prejudice to the appellants right to seek leave to appeal to the Divisional
    Court in Toronto.  The time to seek leave to appeal is extended by 60 days from
    the date this order is issued and entered.

[12]

The respondents and Dr. Lam are entitled to their
    costs in the amount of $1,000 including disbursements and H.S.T.

Gloria
    Epstein J.A.

P. Lauwers
    J.A.

G. Pardu
    J.A.


