Court File and Parties
COURT FILE NO.: 16-68818 DATE: 20170706 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BRIAN LING, Plaintiff/Responding Party -and- BEMAC AUTO BODY LTD. and LAPERRIERE COLLISION LTD., Defendants/Moving Party
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Charles Genest, for the Plaintiff/Responding Party Mitch Kitagawa, for the Defendants/Moving Party
HEARD: June 29, 2017
Endorsement
[1] The Defendants brought a motion for summary judgment seeking the dismissal of the Plaintiff’s action wherein he seeks damages which he alleges he suffered in a fall at the Defendants’ business premises. The Defendants sought to argue that the evidence did not support the allegations made by the Plaintiff in his Statement of Claim.
[2] At the outset of the hearing of the motion, the Plaintiff’s counsel sought leave pursuant to rule 39.02 to introduce an affidavit by the Plaintiff sworn June 22, 2017. By this time, Plaintiff’s counsel had examined two of the Defendants’ witnesses.
Background
[3] The Plaintiff was informed that the Defendants intended to bring a motion for summary judgment on November 7, 2016. The scheduled motion date was February 23, 2017. The motion record was served on the Plaintiff on January 27, 2017.
[4] The Defendants’ solicitors repeatedly asked the Plaintiff’s solicitor for his responding materials. Plaintiff’s counsel advised that he would need more time. Plaintiff’s counsel then chose the date of June 29, 2017 to argue the motion. He promised to deliver responding materials by March 1, 2017 and that all materials, including factums, would be exchanged by the end of May. The responding materials were not produced by March 1, 2017. Plaintiff’s counsel then promised to produce them by March 17, 2017 with cross-examinations to follow on April 21, 2017.
[5] Plaintiff’s counsel did not provide the responding materials by March 17, 2017. He then asked for and was granted an extension until April 7, 2017. Once again, on April 7, 2017, no materials were provided.
[6] When Plaintiff’s counsel suggested that he cross-examine the Defendants first before serving his materials, he was advised that he would have to produce his materials before any cross-examinations could proceed. As a result, the cross-examinations scheduled for April could not proceed.
[7] Thereafter, there was an exchange of correspondence between the parties; the Plaintiff’s counsel seeking additional time. On June 6, 2017, Defendant’s counsel noted that the Plaintiff’s counsel had still not provided any responding material despite intending to cross-examine the affiants on the moving parties’ material.
[8] Plaintiff’s counsel indicated that he intended to proceed with cross-examinations and examinations for discovery in June 19, 2017. He did so by cross-examining the only witness to the file and one other witness.
[9] Then, only after being asked for his responding motion material over 10 times and after cross-examining two of the affiants, the Plaintiff produced the responding affidavit on June 22, 2017.
Should leave be granted to the Plaintiff?
[10] Rule 39.02 states that a party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the parties ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit.
[11] The test to be met by the party seeking the relief is set out in the decision of the Divisional Court in First Capital Realty Inc. v. Centrecorp Management Services Ltd., [2009] O.J. No. 4492.
(a) Is the evidence relevant? (b) Does the evidence respond to a matter raised on the cross-examination, not necessarily for the first time? (c) Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms or an adjournment? (d) Did the moving party provide a reasonable or adequate explanation for why the evidence is not included at the outset?
[12] The evidence that the Plaintiff is now trying to put forward is clearly relevant and addresses critical questions of fact that are at the heart of this motion for summary judgment.
[13] Moreover, the Plaintiff’s affidavit is not responding to a matter raised on the cross-examinations; rather it is the substance of the Plaintiff’s claim which should have been provided at the outset, well before any cross-examinations.
[14] While the Defendants claim prejudice with respect to the preparation of their clients for cross-examination and on their ability to re-examine them, the chief concern is that the Plaintiff is now able to tailor his evidence to the answers provided by the Defendants’ cross-examinations before having to commit his version of facts or position in an affidavit.
[15] I find that the Plaintiff’s explanation for his failure to deliver responding materials prior to cross-examination to be completely unsatisfactory. I note that the evidence comes from a paralegal and is based on her own knowledge save and except where her knowledge was based on information and belief. Much of the information to which she attests is not controversial, but she informs herself on critical issues from Plaintiff’s counsel; thereby putting Plaintiff’s counsel in the position of arguing on the basis of his own evidence. [See Mapletoft v. Christopher J. Service, 2008 ONSC 6935 (ON SC)] She indicated that the Plaintiff was not well enough to review and execute an affidavit, but does not indicate the source of that belief. This is hearsay and it is far from the best evidence.
[16] In summary, Plaintiff’s counsel has offered no reasonable or adequate explanation for why this evidence was not provided at the outset. It is clearly relevant evidence and, had it been provided as required by the Rules, the Defendants may have reconsidered their position on the motion for summary judgment. Instead, Plaintiff’s counsel waited until he had cross-examined a witness to the fall and one other witness before delivering an affidavit. This type of litigation tactic should not be tolerated. On the other hand, the Plaintiff should not be deprived of the trial of his claim as a result of the actions of his counsel. As stated in First Capital at paras. 14 and 27:
14 A flexible, contextual approach is to be taken in assessing the criteria relevant to rule 39.02(2), having regard to the overriding principle outlined in Rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute. An overly rigid interpretation can lead to unfairness by punishing a litigant for an oversight of counsel…
27 The Rules of Civil Procedure meant to promote both fairness and the search for truth. They are not meant to encourage the adversarial game of cat and mouse, the technical but impractical arguments.
[17] This is clearly relevant evidence which goes to the heart of the Defendant’s motion for summary judgment. However, I am satisfied that prejudice to the Defendants can be adequately compensated by an adjournment or an appropriate award of costs in the event that the Defendants decide to discontinue their motion. I remain seized of the matter and direct counsel for the Defendants to advise me within 10 days whether they wish to proceed with the motion and to cross-examine the Plaintiff on this affidavit.