Polish Alliance of Canada v. Polish Association of Toronto, 2010 ONSC 5250

CITATION: Polish Alliance of Canada v. Polish Association of Toronto, 2010 ONSC 5250

COURT FILE NO.: 443/10

DATE: 20100927

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: THE POLISH ALLIANCE OF CANADA et al. Plaintiffs (Moving Parties)

-and-

THE POLISH ASSOCIATION OF TORONTO et al, Defendants (Responding Parties)

BEFORE: MOLLOY J.

COUNSEL: Andrew Stein, for the Moving Parties

Bernie Romano, for the Responding Parties

HEARD: September 14, 2010 at Toronto

ENDORSEMENT

Introduction

[1] The central issue in application for leave to appeal is the extent to which a witness who is being cross-examined on an affidavit may confer with his lawyer during a recess. Further, if there is communication between the witness and his counsel, what are the remedies and who bears the onus of proving whether the subject matter of the communications were improper?

[2] The plaintiff seeks leave to appeal to the Divisional Court from the decision of Allen J. dated June 9, 2010. Allen J. upheld a ruling by Master Abrams that the plaintiff was not entitled to any remedy when a witness who was being cross-examined by plaintiff’s counsel consulted his own lawyer prior to returning for continued cross-examination. What was discussed with the witness is unknown because opposing counsel instructed the witness not to answer those questions, claiming solicitor and client privilege.

Factual Background

[3] The Polish Alliance of Canada (“the Alliance”) and the Polish Association of Toronto (“the Toronto Association”) are embroiled in a dispute as to which of these two organizations is the owner of substantial real estate assets. At the heart of the dispute are issues about the interpretation of the Constitution and various By-Laws of the Alliance. Also, the Toronto Association contends that: the General Convention held by the Alliance in December 2007 was unlawful; the executive elected at the Convention were not validly elected; and, resolutions adopted at the Convention (which are of vital importance to the property dispute) were not validly enacted.

[4] The Alliance commenced this action against the Toronto Association. Counsel for the Alliance has been Peter Waldman. The Toronto Association contends that Mr. Waldman is in a conflict of interest and also that he may be a witness in the proceeding as he was present at the 2007 Convention and is alleged to have given advice to the Alliance about the conduct of those proceedings. The Toronto Alliance brought a motion to have Mr. Waldman removed as solicitor of record for the plaintiff.

[5] Part of the evidence filed by the Toronto Association in support of its motion was an affidavit sworn by Jozef Kazmierczak. Mr. Kazmierczak is a member of a branch of the Alliance located in Barrie and was present at the 2007 Convention. Mr. Kazmierczak is also one of the applicants in separate proceedings (“the Barrie Branch Application”) brought against the Alliance by the Barrie branch of the organizations and a number of individuals. The Barrie Branch Application also seeks a declaration that the 2007 Convention was unlawful and that all resolutions passed at it are invalid. There is therefore considerable overlap between the two proceedings, but they are not identical. Mr. Kazmierczak and the other applicants in the Barrie Branch Application are represented by Richard Hammond, a solicitor practicing in Vaughan.

[6] Mr. Kazmierczak is not a party to this action between the Alliance and the Toronto Association. However, he is the deponent of an affidavit filed by the Toronto Association and upon which counsel for the Alliance sought to cross-examine him.

[7] The cross-examination began on August 21, 2009. Mr. Stein was conducting the cross-examination on behalf of the plaintiff Alliance and Mr. Romano was present as counsel for the Toronto Association. One of the issues Mr. Stein sought to explore was whether the motion to remove Mr. Waldman as counsel in this proceeding was being brought for tactical reasons and in bad faith. In that regard, he tried to question Mr. Kazmierczak about the Barrie Branch Application. Mr. Romano, who is not counsel in the Barrie Branch Application, objected to Mr. Kazmierczak being cross-examined about that proceeding without counsel in that proceeding having an opportunity to be present. Mr. Romano objected to the relevance of questions about the Barrie Branch Application and then announced that he wanted to speak to Mr. Kazmierczak outside and off the record. Mr. Stein objected to Mr. Romano doing that while Mr. Kazmierczak was under cross-examination. After a period of argument between counsel, Mr. Romano left the room with Mr. Kazmierczak, but returned again very quickly. He then advised Mr. Stein that he was adjourning the cross-examination so that Mr. Kazmierczak could seek legal advice from Mr. Hammond, who is his lawyer in the other proceeding. Mr. Stein objected to the adjournment and stated to the witness that he was not permitted to discuss his evidence with Mr. Hammond. Mr. Romano then left with Mr. Kazmierczak. The entire cross-examination was half an hour, the vast majority of which was argument between counsel.

[8] Immediately following the termination of the cross-examination, Mr. Stein wrote to both Mr. Romano and Mr. Hammond and advised them of his position that because Mr. Kazmierczak was in the middle of cross-examination, neither of them could discuss his evidence or the case with him. He referred both counsel to Rule 4.04 of the Laws of Professional Conduct on this issue.

[9] On that same day, Mr. Stein spoke directly with Mr. Hammond who stated that he would have no contact with Mr. Kazmierczak and that he would not be attending the continued cross-examination of Mr. Kazmierczak.

[10] On August 26, 2009, Mr. Romano wrote to Mr. Hammond and advised him that he had adjourned the cross-examination “to permit Mr. Kazmierczak to seek legal advice” and confirmed that Mr. Hammond would be meeting with Mr. Kazmierczak to “discuss matters” and would then advise him of his position.

[11] On September 1, 2009, Mr. Hammond wrote to Mr. Romano advising that he saw nothing in the Kazmierczak affidavit that raised issues relevant to the Barrie Branch Application and stated his position that “any questions related to the Application should be refused as irrelevant.”

[12] The cross-examination of Mr. Kazmierczak resumed on September 11, 2009. The first question asked by Mr. Stein was whether Mr. Kazmierczak had spoken to anyone about his cross-examination. Mr. Kazmierczak relied:

I spoke just ask my lawyer. On the last examination I spoke with my lawyer about another question what you asked me not related to this affidavit.

[13] Mr. Kazmierczak then confirmed that the lawyer with whom he spoke was Mr. Hammond. Mr. Stein then asked Mr. Kazmierczak, “What was the question that you asked that I asked you?” Mr. Romano interjected at that point and refused to permit the witness to answer the question, taking the position this was a matter of solicitor and client privilege. He further took the position that no questions would be answered with respect to the other proceeding because he was not counsel in that proceeding and Mr. Kazmierczak’s counsel “required that those questions be refused.”

The Reasons of the Master

[14] The Toronto Association brought a motion to strike the affidavit of Mr. Kazmierczak. Master Abrams refused the relief sought. In brief reasons, the Master held that she could “understand why it was that Mr. Romano thought it appropriate that the witness consult with Mr. Hammond.” She further held that “there is no reason for me to believe, on the evidence before me, that Mr. Hammond interfered with the evidence given by Mr. Kazmierczak in any way.” She concluded by noting that if her leave had been sought to permit Mr. Kazmierczak to consult with Mr. Hammond, “leave would have been granted, albeit on terms (given the special circumstances here at play.)”

The Reasons of the Appeal Judge

[15] The Toronto Association appealed from the Master’s ruling. On appeal, Allen J. stated that plaintiff’s counsel argued the affidavit of Mr. Kazmierczak should have been struck out on because of improper communications with Mr. Kazmierczak while he was under cross-examination and interference by Mr. Hammond and Mr. Romano with Mr. Kazmierczak’s evidence on cross-examination. The appeal judge quoted the Master’s decision in its entirety and then affirmed the Master’s decision, holding as follows:

The Master’s determination was a factual one. I have no reason to disturb her findings. She straightforwardly set out her reasons for declining to strike Kazmierczak’s affidavit, making clear findings of fact based on the evidence before her.

The Test for Leave to Appeal

[16] The order appealed from is interlocutory. Leave to appeal can only be granted if I am satisfied that: (1) there is “good reason to doubt the correctness” of the order; and, (2) the proposed appeal raises “matters of such importance” that leave should be granted. Both branches of this test must be met in order to obtain leave.[^1] In this case, I am satisfied on both branches of the test that this is an appropriate case in which to grant leave.

Reason to Doubt Correctness

[17] On the first branch of the test, it is not necessary for the moving party to show that the decision is actually wrong, or even probably wrong. The “good reason to doubt correctness” standard involves a consideration of whether the underlying decision raises a question that is “open to a very serious debate.”[^2]

[18] In my view, the appeal judge in this case mischaracterized the Master’s decision as a pure question of fact. On close analysis, it does not appear to me that the Master made any factual findings; she merely noted that there was no evidence before her to indicate that Mr. Hammond had interfered with the evidence of the witness in any way. However, the Master failed to consider the reason for that absence of evidence and what flowed from it.

[19] The witness, Mr. Kazmierczak, acknowledged that during the time his cross-examination was under adjournment, he had reviewed with Mr. Hammond at least one question that had been asked of him on the first day of cross-examination. That is the only information counsel for the defendant was able to put before the Master on this issue because counsel for the plaintiff refused to provide any further information about the questions Mr. Kazmierczak asked of his counsel or the advice given. By concluding this meant that there was no evidence of interference with the witness’s evidence, and dismissing the motion on that basis, the Master placed an impossible burden on counsel for the moving party. Opposing counsel can never know what was said to the witness in his absence. The question of law that arises is whether the onus ought to have been placed on the “innocent” party in those circumstances.

[20] In my view, it is clear that counsel should not have communicated with Mr. Kazmierczak in this manner. Examining counsel obviously considered that the two proceedings were connected and sought to explore some issues in the Barrie Branch Application in his cross-examination. Because this was to be the subject matter of at least some of the cross-examination, some consideration should have given to the Law Society’s Rules of Professional Conduct on this issue. Rule 4.04 (d) provides:

4.04 Subject to the direction of the tribunal, the lawyer shall observe the following rules respecting communication with witnesses giving evidence:

(d) during cross-examination by an opposing lawyer, the witness's own lawyer ought not to have any conversation with the witness about the witness's evidence or any issue in the proceeding;

[21] The Commentary on that Rule states:

If any question arises whether the lawyer’s behaviour may be in violation of this rule, it will often be appropriate to obtain the consent of the opposing legal practitioner or leave of the tribunal before engaging in conversations that may be considered improper.

This rule applies with necessary modifications to examinations out of court.

[22] Mr. Stein, who was the counsel conducting the cross-examination, specifically drew this Rule to the attention of both Mr. Hammond and Mr. Romano. Further, Mr. Stein specifically advised Mr. Hammond and Mr. Romano that he objected to their speaking to Mr. Kazmierczak about these issues while he was under cross-examination. In my opinion, in these circumstances, it was incumbent upon opposing counsel to seek the consent of Mr. Stein with respect to any specific issues either of them wished to discuss with Mr. Kazmierczak. In the absence of such consent, they ought to have sought the leave of the Master to have such discussions.

[23] The Master in this case averted to the possibility of counsel seeking such leave from her. She indicated that she could understand why Mr. Romano thought it appropriate to have the witness speak to Mr. Hammond. I do not necessarily share that view, although I would find it understandable if Mr. Romano wanted to adjourn to give Mr. Hammond an opportunity to be present while his client was being cross-examined. However, what is important is that the Master was of the view that if she had been asked for leave, she would have granted it, as she said “on terms.” The Master did not indicate what those terms would have been. Leaving aside for the moment whether leave would or should have been granted (as no such application was made and counsel for the defendant was not heard on the point), it is worth noting that since there has been no disclosure of the discussions that did occur, there can be no way of knowing whether those discussions violated any of the terms the Master might have had in mind.

[24] Mr. Romano argued that the defendants should have brought a separate motion with respect to the refusal to answer questions about the discussions between Mr. Hammond and Mr. Kazmierczak, and that in the absence of an order compelling Mr. Kazmierczak to answer such questions, it is appropriate to infer from the evidence that there was no interference with the evidence of the witness.

[25] I cannot agree. The discussion between Mr. Hammond and his client while he was under cross-examination is prima facie inappropriate. If the discussion was wholly innocent and did not deal with any issue raised in the cross-examination, that should have been disclosed. If the communication touched on issues raised in the cross-examination, there should have been full disclosure of what was discussed. Alternatively, if solicitor and client privilege is claimed for the discussions, then it seems to be the plaintiff is not entitled to rely upon the affidavit and must withdraw it. I do not see why the “innocent” party should be required to add an extra step in the litigation process by bringing a separate motion to compel answers to the refusal.

[26] It is instructive to compare what happened in this case with what occurred in Iroquois Falls Power Corp. v. Jacobs Canada Inc.[^3] In that case, counsel for a witness who was being examined for discovery discussed a particular question with his client over the lunch break because he thought he had been confused by the question. The client realized that he had not appreciated what was being asked and that he had answered incorrectly. At the resumption of the examination, counsel for the witness revealed that this discussion had occurred and sought to correct the answer that had previously been given. There was then a thorough examination of the witness as to what had been discussed over lunch. A motion was then brought before Master MacLeod. In a thoughtful and well-reasoned decision, Master MacLeod concluded that counsel had acted improperly in having the discussion he did, but declined to take any further steps because the entire improper discussion had been disclosed and he was satisfied that there had been no harm done. In the absence of such information, the Master in this case was not in a position to make such a determination.

[27] In the Iroquois Falls decision, Master MacLeod sets out a number of guideline to assist the profession in how to deal with this issue in the context of out-of-court cross-examinations. Of particular interest is his observation that when examinations have been adjourned it is legitimate upon resumption to question the witness about whether he has in the interim been coached in any way as to what answers to give.[^4] Indeed, this is quite usual cross-examination in a trial, particularly where a witness under cross-examination has been seen talking to somebody during a recess. These are perfectly proper questions and should, in my view, have been answered.

[28] Mr. Romano also argued that he had been instructed by Mr. Hammond that Mr. Kazmierczak should not answer any questions about the Barrie Branch Application because he (Mr. Hammond) considered such questions to be irrelevant to the motion before the court. With respect, that is not Mr. Hammond’s role. He is not counsel in this proceeding and has no authority to dictate what a witness may or may not answer under cross-examination in this action. I reject the suggestion that Mr. Romano was “required” to refuse to permit Mr. Kazmierczak answer questions because Mr. Hammond thought they were irrelevant.

[29] In my opinion, there is a good argument that the Master ought to have considered the question of onus before concluding there had been no interference with the evidence of the witness. In placing the onus where she did, and permitting the witness to shelter behind refusals to provide the content of the discussions, she made it impossible for the moving party to prove its case. It does not necessarily follow that the Master should therefore have struck out the affidavit. However, the Master failed to even consider what if any remedies might have been appropriate because she placed the onus on the moving party and found, in the absence of evidence, that there had been no interference with the witness.

[30] In my opinion, this is a question of law, upon which the Master was required to be correct. There is good reason to doubt the correctness of the appeal judge’s conclusion that this was a straightforward factual determination entitled to deference.

[31] I therefore find that the first branch of the test for leave has been met.

Importance of the Issue

[32] The party seeking leave must also establish that the case involves a matter of such importance that leave should be granted. This branch of the test is not met where the issues involved are of importance only to the litigants involved in the particular action. What is required is a matter that transcends the interests of the immediate parties and raises issues of general public importance or issues relevant to the development of the law and the administration of justice.[^5]

[33] The issue involved here is one that relates to the administration of justice and the conduct of litigation generally. It is a point of principle that is relevant to the profession as a whole, not just to the parties in this case. The case also involves issues of ethics and civility between counsel and the interplay between the rules governing civil litigation, common law principles and the Law Society’s Code of Conduct.

[34] Although there are some Master’s decisions on the issues involved, there does not appear to be anything directly on point at an appellate level. There is no clear guidance in the Ontario case law as to the appropriate procedure to be followed once there has been an improper communication. Likewise, there is no clear precedent on what remedies will flow from a breach of a Law Society Rule.

[35] In my view, this is an important point of principle and one upon which appellate guidance and clarification will be of importance to the profession and the administration of justice. I therefore find that the second branch of the test is also met.

Conclusion

[36] Leave to appeal the decision of Allen J. is therefore granted. Counsel are in agreement that $5000 is an appropriate quantum for costs of the leave application. Which party should be responsible for paying those costs is left to the panel hearing the appeal.

[37] With respect to the hearing of the appeal, I would like to gently commend to counsel the wise words of Master MacLeod at paragraph 17 of his decision in Iroquois Falls.

Subsequent Submissions from Counsel

[38] This motion was argued before me on September 14, 2010. On the afternoon of September 22, 2010, I received a letter from Mr. Stein enclosing an additional case, In the Matter of the Child Welfare Act and in the Matter of J.S. and A.N. In his letter, Mr. Stein stated he had written to Mr. Romano about his intention to send me the case and had not received any objection from him. Mr. Stein’s letter does nothing more than enclose the case and direct my attention in particular to parapgraph 6, which he states “may be of assistance to the Court.”

[39] The referenced paragraph 6 states:

Nor can I fairly hold that the onus is on the applicant to prove a negative respecting waiver. If a waiver had been granted expressly, or by acts, the father’s solicitors are in the best position to know all about that and to provide affidavit evidence to that effect.

[40] At the time I received that letter, I had already completed my decision subject to proofreading. I reviewed the decision to which Mr. Stein referred, but felt I did not need to make any specific reference to it in my Reasons.

[41] On September 23, 2010, Mr. Romano wrote to me stating that Mr. Stein’s letter had not come to his attention until that day. He said it was not his practice to deliver correspondence to a Judge following argument but that he now “felt compelled” to respond to Mr. Stein’s correspondence. He then proceeded to set out about a page of argument submitting that in the appeal argued before Allen J. the notice of appeal did not set out as a ground of appeal that the Master had erred in law in failing to take into account refusals at the cross-examination of Mr. Kazmierczak. Mr. Romano therefore submitted that this new ground of appeal could not be added as a basis for seeking leave to appeal. This argument was not raised before me on September 14 and does not, in my view, arise from Mr. Stein’s correspondence .

[42] Firstly, I have no difficulty with counsel drawing a case to my attention while I have a decision under reserve, as long as counsel does no more than provide the case, without argument. It is preferable that this be done with the consent of opposing counsel. However, I do not feel that in corresponding as he did Mr. Stein stepped over the line of what is appropriate and helpful to the court.

[43] Secondly, it is improper to write to a judge providing further, and particularly new, argument while a case is under reserve. If Mr. Romano wished an opportunity to address argument in response to Mr. Stein’s case authority, he should have sought permission to do so, not merely sent the letter. That is particularly the case where the argument being advanced goes beyond mere commentary with respect to the new case.

[44] Finally, in any event, I do not agree with Mr. Romano’s submission. The grounds of appeal stated in the Notice of Appeal before Allen J. included that the Master “erred in law in failing to take into account Rule 4.04 of the Rules of Professional Conduct” and that the Master “erred in law or in principle in failing to find that the evidence was affected by the witness speaking to counsel during his cross-examination.” Since there was no evidence as to what was said between the witness and counsel, this ground of appeal must mean that the Master should as a question of law have drawn an inference, in the absence of disclosure of the discussions, that the evidence was affected.

[45] In the result, neither the case submitted by Mr. Stein nor the supplemental argument submitted by Mr. Romano affects my decision. However, it is apparent to me that there is considerable hostility between counsel. Indeed, that was quite apparent from my review of the transcrips of the cross-examination. This is not helpful to the conduct of the litigation. In addition to the wise words of Master MacLeod in Iroquois Falls, counsel would be well-advised to read Master MacLeod’s decision in Kobre v. Sun Life Assurance of Canada (2005), 31 C.C.L.I. (4th) 269.

MOLLOY J.

Date: September 27, 2010

[^1]: Rule 62.02(4), Rules of Civil Procedure [^2]: Brownhall v. Canada (Ministry of Defence) (2006), 80 O.R. (3d) 91 (S.C.J.) at para. 30. [^3]: (2006), 83 O.R. (3d) 438, 2006 35612 (Master MacLeod). See also, 413528 Ontario Ltd. v. 951 Wilson Avenue Inc., [1989] O.J. No. 2599 (Master Sandler) [^4]: Iroquios Falls at para. 43, point 8. [^5]: Rankin v. McLeod, Yong, Weir (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110, 30 O.A.C. 53 (Div.Ct.).