In Ouderkirk v. Walkhavern Farms Limited, the Plaintiff brought a motion to inspect the fencing system of the Defendants’ two acre pasture. The Plaintiff was involved in a motor vehicle accident on March 30, 2020, when he hit a steer that escaped from the pasture and found itself on the roadway. Shortly after being put on notice, the Defendants’ insurer wrote to counsel denying liability, stating that among other things the fence “was undamaged and of standard requirement.” At the examination for discovery on December 22, 2022, the representative of the Defendants stated that he had no idea how the steer escaped but surmised that it could have jumped the fence after being spooked by wildlife.
Subsequently, and more than three years after the accident, the Plaintiff brought a motion to inspect the Defendants’ fencing system. In opposition, the representative of the Defendants filed an Affidavit stating that his property is near Stayner, which receives a significant amount of snowfall. The snow has the effect of pulling the fences off their posts, and each spring the fence has to be pulled back up.
In denying the Plaintiff’s motion, the court found that in order for the inspection to be useful, it should have been done in 2020 before the winter. The court further noted that the fence is outdoors, subject to the elements and contains large animals. It is not a static object such as a sample that was taken after a fire.