Court File and Parties

Citation: R. v. Rothmans, 2011 ONSC 3685 Divisional Court File No.: 234/11 Date: 2011-06-14

Superior Court of Justice – Ontario Divisional Court

Re: Her Majesty the Queen in Right of Ontario, Plaintiff And: Rothmans Inc., Rothmans, Benson & Hedges Inc., Carreras Rothmans Limited, Altria Group, Inc., Philip Morris U.S.A. Inc., Philip Morris International, Inc., JTI-Macdonald Corp., R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco International Inc., Imperial Tobacco Canada Limited, British American Tobacco P.L.C., B.A.T. Industries P.L.C., British American Tobacco (Investments) Limited, and Canadian Tobacco Manufacturers’ Council, Defendants

Before: Jennings J.

Counsel: Ronald Carr, Kevin Hill and John Kelly, for the Plaintiff Charles Scott and Shaun Laubman, for the Defendant B.A.T. Industries P.L.C. Christopher Rusnack, for the Defendant Carreras Rothmans Limited Craig Dennis, for the Defendant British American Tobacco (Investments) Limited

Heard: June 9, 2011

Endorsement

[1] The plaintiff seeks leave to appeal the order of Perell J. dated April 26, 2011, which set aside an order of Master Short requiring re-attendances of affiants on cross-examinations upon their affidavits to answer questions for which refusals were given. The affidavits were filed in support of a motion challenging the jurisdiction of the Superior Court over three of the defendants. The plaintiff claims $50 billion. So far, something in excess of seven days of court time has been spent on this preliminary issue.

[2] The plaintiff, applying under both branches of r.62.02(4) must show conflicting decisions, or make it appear to me that I have good reason to doubt the correctness of the order and that the matter is of such importance that leave to appeal should be granted. The plaintiff’s additional burden is that leave to appeal is rarely granted on refusal motions (see Aronowicz v. E.M.T.W.O. Properties Inc., [2008] O.J. No. 4300 (Div. Ct.)).

[3] The ratio of Perell J.’s decision is to be found at paragraph 151 of his lengthy and detailed reasons, where he found that the Master erred in principle in failing to appreciate the difference in the scope of questions properly put on cross-examination from those properly put on examinations for discovery. Perell J. found that by improperly applying the principle of proportionality the Master impermissibly enlarged the scope of cross-examination “… beyond what even might be available on an examination for discovery”.

[4] I reject the plaintiff’s submission that Perell J. held that the principle of proportionality does not apply to cross-examinations. That is not how I read paragraph 156 of the reasons. Nor is that submission borne out by the analysis carried out by the motions judge in paragraphs 157-164 where he reviews the authorities in support of his conclusion as to the proper application of the principle of proportionality.

[5] The Master concluded that he could apply the principle of proportionality to expand the scope of cross-examination. In concluding that the Master erred in that regard, it is interesting to note that Perell J. relied upon Javitz v. BMO Nesbitt Burns Inc., [2011] ONSC 1322, and Abrams v. Abrams, [2010] ONSC 1928, two of the cases that the plaintiff submits to me are in conflict with the order under review. In my opinion Perell J. did not conclude that the principle did not apply, but rather that the Master erred in his application of it.

[6] The Master was understandably in awe of the enormity of the claim, referred to by Perell J. in his reasons as being “humongous”, and the claim’s potential for complexity. However, nothing in Javitz or Abrams and certainly nothing in the reports of either Lord Woolf or Mr. Osborne, referred to by the Master support the Master’s conclusion that proportionality could be used to expand the scope of cross-examination in very large cases. It will be remembered that both reports repeatedly stressed the need to limit the costs of access to justice which were being exacerbated by procedures not in keeping with the goal sought to be obtained.

[7] I reject the plaintiff’s submissions that Perell J. ignored the evidentiary burden on the defendants’ regarding “onerousness”. Regardless, his comments made concerning establishing the cost and difficulty of searching for answers to questions or undertakings are obiter. Perell J.’s decision was founded upon findings that the questions refused were simply beyond the scope of cross-examination, not because there was insufficient evidence to support the proposition that the answers could not be easily and inexpensively obtained.

[8] There were no cases cited to me to support the Master’s conclusion as to how the principle of proportionality might be applied to expand the scope of cross-examination. In my opinion, Perell J. was correct in finding that the Master erred in so holding.

[9] There are no cases in conflict with Perell J.’s analysis of the difference in scope between examinations for discovery and cross-examinations.

[10] Perell J. applied existing jurisprudence to determine that the Master erred. I have no reason to doubt the correctness of the order he made.

[11] Leave to appeal is denied. If the parties are unable to agree on costs brief submissions not to exceed three pages in length may be made within ten days of the release of these reasons.

JENNINGS J.

Date: June 14, 2011