Executive Summary: Key Legal and Evidentiary Issues

• Defendant failed to disclose the involvement of a third-party contractor (LEA Consulting Ltd.) before discovery, impairing the plaintiff’s ability to prepare.

• Plaintiff discovered new, material information during oral discovery regarding LEA's role as onsite contract administrator.

• Relevant documents, such as inspection reports and construction records, were not produced prior to discovery, violating disclosure obligations.

• The plaintiff properly adjourned discovery under Rule 34.14 due to withheld documentation necessary for a meaningful examination.

• Court found the defendant’s non-disclosure unjustifiably hindered discovery and warranted a continuation at the defendant’s expense.

• Costs awarded against the defendant for compelling the continuation and outstanding undertakings due to their unreasonable conduct.

Facts of the case

The plaintiff, Cassie Falardeau, was involved in a single-vehicle motor vehicle accident on September 9, 2023. She commenced a civil action alleging that her accident was caused or contributed to by the negligence of the defendants: His Majesty the King in Right of Ontario, represented by the Minister of Transportation (HMTK), and Green Infrastructure Partners Inc. The central allegation concerned a hazardous gravel patch in an unmarked construction zone, suggesting negligent maintenance or improper management of the roadway.

Initially, the defendants provided a standard boilerplate Statement of Defence that did not disclose the involvement of any other party in the construction or maintenance of the area in question. However, during the plaintiff’s examination for discovery of HMTK in January 2025, it was revealed for the first time that LEA Consulting Ltd. had been contracted by HMTK to act as the onsite contract administrator. LEA was responsible for the day-to-day oversight of the road construction project and prepared relevant records, including sign diaries and compaction audits.

The plaintiff had not received any of these documents or notification of LEA’s role prior to discovery. This lack of disclosure left both the plaintiff and HMTK’s representative unprepared for effective examination. As a result, the plaintiff’s counsel adjourned the examination, reserving the right to resume once the relevant documentation had been produced. The plaintiff subsequently brought a motion seeking (1) to compel HMTK to fulfill its outstanding undertakings and (2) to require HMTK to re-attend for a continuation of discovery at its own expense. A separate, uncontested motion was brought to add LEA Consulting Ltd. as a party to the action.

Outcome of the motion

Justice Cullin of the Ontario Superior Court granted both motions. The motion to add LEA Consulting Ltd. was unopposed and allowed without costs. The motion to compel HMTK to re-attend discovery was allowed on the basis that its failure to disclose LEA’s involvement and to produce relevant documents undermined the effectiveness and fairness of the initial discovery. The Court held that these omissions constituted sufficient grounds under Rule 34.14 of the Rules of Civil Procedure to order a continuation.

Given that the deficiencies in disclosure were avoidable and materially impaired the plaintiff’s ability to conduct discovery, the Court directed that HMTK bear the costs of its re-attendance. In addition, the Court awarded partial indemnity costs in the amount of $4,243.15 to the plaintiff, finding that the plaintiff should not have been required to bring or argue the motion, and that HMTK’s position was unreasonable throughout the process.

Justice Cullin emphasized that disclosure obligations are foundational to the discovery process and that non-compliance with these obligations—especially where it deprives a party of the ability to prepare—justifies judicial intervention and cost consequences.