COURT FILE NO.: 40/07
DATE: 20080116
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Andrey Pinsky Applicant
-and-
Francois Julien, Michael Kelly, Margaret Moriarty.
Gary Slater, Jac Van Beek and The University of Ottawa
Respondents
HEARD: At Toronto, December 7, 2007
BEFORE: Lane, J.
COUNSEL: Andrey Pinsky, Applicant, in person;
Jennifer Trepanier, for the Respondents.
E N D O R S E M E N T
[1] I have before me a motion and a cross-motion concerning the examination of witnesses. The motion is brought by the applicant within his application for judicial review of the decision of the Senate Committee of the respondent University dated March 24, 2006 upholding a Faculty of Graduate Studies decision dated April 27, 2005, denying the applicant permission to complete his MBA degree by taking certain courses at the University of Toronto. The cross-motion is brought by the respondents to give effect to a settlement of a prior motion as to the examination of certain respondents as witnesses on the same issues.
[2] The applicant, a student at the respondent University, failed to complete a compulsory course within the prescribed time and his student record accordingly recorded an “incomplete” grade in that course. He petitioned the Faculty to remove that grade and to permit him to complete his studies by taking other courses in Toronto. The Faculty refused, but granted him an opportunity to complete the original course. The Senate Committee upheld the decision of the Faculty.
[3] The applicant brought his application for judicial review on December 19, 2006, seeking an order in the nature of mandamus requiring the University to register him as a part-time student to complete his MBA program; to require the University to permit him to take some of the courses to complete the program at the University of Toronto; to quash the decisions to the contrary of the Senate Committee, of the Faculty and of the respondent Julien, the head of the MBA program. The applicant included, as personal respondents, five officers of the University who were involved in the process leading to the decision of the Senate Committee.
[4] In March, 2007, the applicant served notices to examine four of the personal respondents as witnesses on the application. They refused to appear. On May 15th, the University moved to strike the notices and to strike the personal respondents from the application. The applicant served further notices to examine employees of the University with respect to the motion to strike. All of these motions came before Swinton J. who, on June 8, 2007, gave directions as to the order of hearing the motions. On August 10, the applicant accepted the offer of the respondents dated May 29, 2007 to settle these motions.
[5] The offer, so far as relevant to this decision, reads as follows:
The respondents offer to settle the respondent’s motion returnable on June 8, 2007 on the following terms and conditions:
The respondents Francois Julien, Michael Kelly, Margaret Moriarty, Garry Slater, Jac Van Beek and the University of Ottawa (“the Respondents”) will withdraw their motion[^1] pursuant to the terms herein with no costs to either party.
The applicant will conduct examinations of [Moriarty, Slater and VanBeek] and subsequently will cross-examine Francois Julien on dates agreeable [etc.]
[This paragraph lists the documents to be brought to the examinations]
[6] Following receipt of the applicant’s acceptance of the offer, counsel for the University wrote to the applicant on August 27, 2007, accepting the acceptance of the offer of May 29, despite an intervening offer of May 31, 2007, and said:
Further, I take your correspondence to mean that the settlement resolves all outstanding preliminary matters arising from the Respondents’ motion of May 15, 2007, including all motions arising therefrom (i.e. the Respondent’s second motion, as amended June 4, 2007, and your motion dated May 31, 2007).
[7] On August 29, 2007, the applicant replied:
It seems that all outstanding motions now became (sic) superfluous. I would like to receive dates on which your clients and you are available for examinations.
[8] The settlement ran into trouble quite quickly. Correspondence was exchanged about the dates and on September 14, 2007, the applicant served Notices of Examination for the available dates for three of the respondent/witnesses (Slater, Moriarty and Van Beek) named in the settlement and one person not named in it: Francois Gravelle. The respondent declined to produce Gravelle as he was not listed in the Settlement and the applicant replied:
The settlement agreement does set the list of the Respondents to be examined. The settlement agreement does not state that no other witnesses could be examined.
And:
If you disagree with my position, you have to seek a court order excusing Francois Gravelle and other witnesses from examination.
[9] In the present motion, the applicant seeks to strike the affidavit of Kathleen Brown; to require counsel for the respondents, Ms. Trepanier, to be examined; to require the witnesses agreed on under the settlement to actually attend; and to have the court declare that the settlement does not preclude the examination by the applicant of further witnesses. In the cross-motion, the respondents ask the court to declare that the settlement establishes the complete roster of witnesses to be examined by the applicant; and to prohibit the service of further subpoenas.
The Agreed Respondent Witnesses
[10] No reason exists why the witnesses agreed upon should not be examined even though there is a dispute about additional witnesses.
The Brown Affidavit
[11] The affidavit of Kathleen Brown simply recites the correspondence sent and received. That is an entirely appropriate subject matter for an affidavit of a clerical employee in a law firm. It is not made upon information from Ms. Trepanier, but rather is deposed to on the basis of knowledge. There is no suggestion that there is other correspondence that has been omitted and no basis was suggested to strike the affidavit except that “better” evidence was available. Ms. Brown does not purport to go beyond the facts of delivery of letters and her evidence on that is as good as anyone’s. This is a transparent effort to require Ms. Trepanier to make the affidavit so as to be cross-examined on the contents of the letters. I dismiss the motion to strike the Brown affidavit.
Motion to Examine Counsel
[12] The applicant seeks an order to cross-examine Ms. Trepanier, counsel for the respondents, “in respect of the terms and conditions of the Offer to Settle of May 29, 2007 and the respondent’s costs, the issues that are raised in the Respondent’s third motion”. In the factum he expands this to “the facts, arguments and considerations that led to the settlement”.
[13] In Canada Metal[^2] the Court of Appeal did not find that an onus existed on the issuer of a subpoena to prove justification for the subpoena, but did declare that the evidence sought to be elicited must be relevant to the issue on the motion and that the right to subpoena must not be used as an abuse of process or for some ulterior purpose. The proposed examiner must show relevance, but the burden to show abuse of process is on the witness. To a similar effect is the decision of Sharpe J. in Transamerica[^3] , relying on Canada Metal and stating further that the applicant need not show that the examination would likely yield evidence that would be helpful to his cause; it is enough that it be relevant.
[14] As to cross-examining Ms. Trepanier on the costs to be paid under the settlement, the applicant has obtained an appointment for the assessment of the costs and there is no relevance to the motion before the Divisional Court of the details of hours spent, which costs relate to which motion, etc. raised by the applicant in his material. In view of the issues sought to be raised, this is an appropriate case for an assessment rather than a summary fixing, and I so order. The appropriate time and place for the cross-examination sought is on the assessment where Ms. Trepanier can be examined as a witness as a matter of course. The respondents ask for an order fixing the settlement costs and for immediate payment of such costs before the applicant is heard on further motions. This is a transparent effort to exert financial pressure on the applicant in the hope that he cannot continue the litigation. In view of the financial disparity between the parties, I have discretion as to such an order where it would deprive the applicant of access to justice.[^4] I decline to make such an order.
[15] As for the “terms and conditions”, the Offer speaks for itself; evidence about the subjective opinions of drafters of documents as to their meaning is not relevant nor admissible in interpreting the document unless those views were communicated during the discussions, [^5] or, at any rate, “… until other methods of interpreting the contract have been explored and have failed.”[^6] Where an ambiguity has been established, evidence of the surrounding circumstances may be admitted to cast light upon the likely meaning that the parties would have mutually shared at the time.[^7]
[16] The constant use by the applicant of the term “modifying” the settlement, to describe the respondent’s position, is blatantly self-serving and does not assist him. The point of the motion is what the words reasonably mean as they stand. No question arises here of any unwritten discussion between the parties as to their mutual intentions, nor any oral variation of the written terms. Specifically, there is no question of any discussion between the parties as to whether the agreement was as to all evidence or as to the evidence of the personal respondents only. All communication as to the settlement was by letter.
[17] Counsel for the respondents has not given evidence putting forward the existence of any oral communication of such a view at the time of the making of the agreement. Her submissions are that the real meaning of the agreement is that it covers all potential witnesses. No specific basis for cross-examining counsel has been suggested other than to obtain her opinion on the meaning and to challenge that opinion by cross-examination; in short, to cross-examine her on her submissions. That is not a relevant purpose for two reasons: because the resulting evidence would not be relevant nor admissible; and because it is an abuse of process to seek to cross-examine a counsel upon submissions made to the court.[^8]
[18] Finally, as to the “facts, arguments and considerations that led to the settlement”, any cross-examination of counsel on these matters will inevitably require exploration of communications between counsel and the respondents on these topics, an invasion of solicitor and client privilege; and an explanation of counsel’s thinking about the case, strategic considerations and the like, an invasion of the privilege accorded to counsel’s brief.
[19] Accordingly, I dismiss the motion to compel counsel to be examined.
Analysis of the Settlement
[20] I have set out the relevant correspondence in full above. It, the respondent’s Notice of Motion and the formal offers are entirely devoted to resisting the attempts of the applicant to examine the personal respondents. There is a passage in one letter from counsel for the respondents referring to the inability of the applicant, under the Rules, to cross-examine anyone until he has filed the material on which he proposes to rely, and inviting him to file such material, but that does not extend the ambit of the motions beyond the personal respondents.
[21] I can see nothing in the Offers or in the surrounding correspondence to indicate an intention by either party to resolve all issues of witnesses generally. The focus was always on the assertion that the personal respondents were not proper parties, they should be struck from the application and they should not be examined. The exchange of correspondence set out in paragraphs 6 and 7 above, refers to “outstanding preliminary matters” and “outstanding motions”. All that was “outstanding” was the issue of the respondents as witnesses. No one had raised the issue of witnesses generally. In my view, when considered by itself, or with the surrounding circumstances, the settlement is unambiguous: it restricts the applicant to examining only those of the personal respondents who are listed as examinees, but it simply does not address the question of other witnesses who are not personal respondents. It also does not address any exemption for the applicant from the Rules as to the timing of filing his own material relative to conducting examinations.
[22] I dismiss the cross-motion of the University to confine the applicant to the examination of the specified personal respondents.
The Examination of Francois Gravelle
[23] Mr. Gravelle is not a personal respondent. He was the Chair of the Senate Committee for the Study of Individual Cases (“Committee”) at the time the applicant’s case was heard by it. There is no transcript of the proceedings. He would appear to be a logical person to explain the proceedings and indicate what material, written or oral, was before the Committee on which it based its decision. In my view, procedural fairness requires that the applicant have a complete set of the materials placed before the Committee relating to his case. He has raised the issues of bias, and the absence of procedural fairness in his application and is entitled to obtain any evidence which Mr. Gravelle can provide as to those issues. In Payne[^9] Sharpe J.A., for the majority, wrote at paragraph 161:
An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court’s inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed. As stated by Denning L.J. in R. v. Medical Appeal Tribunal ex p. Gilmore, [1957] 1 Q.B. 574 (Eng. C.A.) at 583: “The court has always had power to order an inferior tribunal to complete the record…. [A] tribunal could defeat a writ of certiorari unless the courts could order them to complete or correct an imperfect record. So the courts have the power to give such an order.”
[24] At paragraph 162, he wrote:
Rule 39.03 provides that a person may be examined as a witness before the hearing of a pending motion or application. Rule 39.03 applies to applications for judicial review. The leading Canadian text on administrative law, Brown and Evans, Judicial Review of Administrative Action in Canada (updated June 30, 1999) at § 6:5530, states: “A witness may be summoned to give evidence under oath in support of an application for judicial review and any transcript of that evidence is to be included in the Application Record.” This proposition is borne out by the authorities that have considered the Rule in relation to applications for judicial review. As I explain below, these authorities hold that a party to an application for judicial review is entitled to adduce evidence by way of examination, provided the evidence sought to be adduced is relevant to an issue properly raised on the judicial review application and is not specifically excluded by statute or by some applicable legal principle, and provided that the examination is not being used for an ulterior or improper purpose and does not constitute an abuse of process of the court.
[25] Sharpe J.A. continues at subsequent paragraphs to consider the limitations on such examinations. There was no argument before me as to the limitations referred to above; such arguments are better kept until they arise. However, I will summarize them in order to emphasize that I am not authorizing a general examination. There is no general right of discovery or production and no general fishing is allowed (para. 165). The examination is limited by the rule as to protecting the deliberative secrecy of the tribunal, so there can be no examination on the actual discussions (para. 167). The protection of the tribunal does not include procedural failures of natural justice and must be balanced with the right of the applicant to fairness. Where necessary, the procedures can be explored to determine the fairness with which they were conducted. At paragraph 170, Sharpe J.A. said:
Accordingly, it is sufficient if the proposed examination is focussed on facts relevant to an issue properly raised by way of judicial review. I hardly need to add that facts relevant to an issue properly raised by way of judicial review is a very specific and narrowly circumscribed classification.
[26] Accordingly, I allow the applicant’s motion to be allowed to examine Mr. Gravelle.
Disposition
[27] Orders will go in accordance with these reasons. Costs of the motion and cross-motion before me may be the subject of brief submissions in writing, those of the applicant within 10 days of the release of these reasons; those of the respondents in a further ten; reply if any within three further days. In view of my status as a retired judge with only a brief remaining period to complete outstanding matters, there should be no delay in these submissions.
Lane, J.
DATE: January 16, 2008
[^1]: [to strike the individual respondents and the notices to examine] [^2]: Canada Metal Co. v. Heap et al (1975) 1975 675 (ON CA), 7 O.R. (2nd) 185 (C.A.) [^3]: Transamerica Life Insurance Co. of Canada v. Canada Life Ass. Co.(1995) 27 O.R. (3rd) 391 (O.C.G.D.) [^4]: The case law is mixed on the question of the extent to which a party’s financial circumstances may be taken into account in developing a costs order. A very useful analysis by Perell J., of this court, of the competing lines of cases is found in Christian Jew Foundation v Christian Jew Outreach 2007 CarswellOnt 3446 paragraphs 58 to 70., in which the learned judge analyzes the policy rationale behind the two lines. In my view, the true effect of the cases is that such an order is within the discretion of the judge. [^5]: See for example the discussion of the parol evidence rule in Waddams: The Law of Contracts (4th ed.) paragraphs 330 and 331 [^6]: Per Gale, C.J.O. in Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co. 1968 405 (ON SC), [1969] 1 O.R. 469 at 523 (H.C.J.) [^7]: See the discussion in Waddams, supra, at para. 331 [^8]: I do not refer here to matters such as contempt of court where the nature of the submissions is at issue. [^9]: Payne v. O.H.R.C. 2000 5731 (ON CA), [2000] O.J. No. 2987 (C.A.)