Court File and Parties

COURT FILE NO.: CV-14-0195 DATE: 2018/12/19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TARWINDER SHOKAR, Plaintiff AND: WINDSOR CASINO LIMITED, CAESARS WINDSOR et al., Defendants

BEFORE: MASTER RONNA M. BROTT

COUNSEL: Iain A.C. MacKinnon, for the Plaintiff/Moving Party Fax: 416-366-6110

R.S.M. Woods, for the Defendants Windsor Casino Limited, Caesars Windsor, Caesars Entertainment Windsor Limited, Danial Ibrahim and Ontario Lottery and Gaming Corporation/Responding Parties Fax: 416-367-6749

Endorsement

[1] In this action the plaintiff Tarwinder Shokar seeks recovery of $342,000.00 that he gambled away at Caesars Windsor (“the casino”) in October 2013. He claims that the defendants were negligent in allowing him to be present at the casino because they had in their possession information that he was a known and self-described problem gambler. The plaintiff further alleges that his losses were the result of the casino over-serving him alcohol and then permitting him to gamble while intoxicated.

[2] On this motion the plaintiff seeks to compel Mr. Laforet, the President and Chief Executive Officer of Caesars Entertainment Windsor Limited (“CEWL”), the casino operator, to appear as a discovery witness on behalf of the corporation. The Ontario Lottery and Gaming Corporation (“OLG”) and Windsor Casino Limited (“WCL”, with CEWL – “the Caesars defendants”) employ the people who work at the casino.

[3] Rule 31.03(2) of the Rules of Civil Procedure states that “the examining party may examine any officer, director or employee on behalf of the corporation but the court on motion of the corporation before the examination, may order the examining party to examine another officer, director or employee”.

[4] The principles applicable to the selection of a corporate discovery representative are set out in Wexler v Suncor Energy Products Inc. [2006] O.J. No. 4012 wherein it states:

(1) The examining party has the prima facie right to select the officer, director or employee to be examined.

(2) The onus is on the corporation to show that the person selected is inappropriate and the court will not lightly interfere with the choice of the examining party.

(3) In deciding whether one corporate representative should be substituted for another, the court should consider the following:

(a) Is the person selected sufficiently knowledgeable in relation to the matters in issue?

(b) Would it be oppressive to require the person selected by the opposing party to be examined, for example by the witness being required to give an inordinate number of undertakings or unnecessarily being taken away from onerous managerial responsibilities?

(c) Would there be prejudice to the examining party to be required to examine someone other than the person whom he or she has selected?

[5] The case law is clear that the court should not lightly overturn the examining party’s prima facie right to select the individual to be examined on behalf of the corporation. The onus therefore lies on the Caesars defendants to demonstrate that Mr. Laforet is an inappropriate representative.

Sufficient Knowledge

[6] In Canadian Imperial Bank of Commerce v Cigam Entertainment Inc., [1999] O.J. No. 2011 (“CIBC”), Justice Wright stated:

Presidents of corporations are not immune from being produced on examinations for discovery, however, they should only be required to attend such examinations where they have sufficient knowledge of the matters in dispute, which means at least some direct involvement with the parties and the transactions out of which the claims arise. (emphasis added).

[7] The defendant CEWL asserts that Mr. Laforet has had no direct involvement with the plaintiff nor with the events which occurred in October 2013 and which underlie the plaintiff’s claim. Specifically CEWL notes:

(a) Mr. Laforet is not mentioned in the pleadings or Shokar affidavit;

(b) There are no references to Mr. Laforet in the discovery transcripts of Danial Ibrahim and the OLG discovery witness;

(c) Mr. Laforet’s name did not come up during the course of the investigation of the plaintiff’s allegations;

(d) Mr. Laforet was not interviewed in connection with the plaintiff’s allegation;

(e) Mr. Laforet is not involved in ‘responsible gambling’ (“RG”) issues at the casino on a day-to-day basis;

(f) Mr. Laforet is not, and has never been, a member of the casino’s RG Committee which is a committee that meets regularly to discuss RG issues and the casino’s response to them; and

(g) Mr. Laforet has not reviewed the corporate investigator’s report regarding the plaintiff’s claim and does not receive regular reports on this action.

[8] These facts are consistent with the plaintiff’s evidence, who admitted that he has had no contact with Mr. Laforet, has never met Mr. Laforet, and has no personal knowledge of what Mr. Laforet knows or does not know.

[9] The plaintiff nonetheless asserts that Mr. Laforet is the appropriate person to answer questions related to CEWL’s policies and procedures related to the sharing of information with other casinos and specifically the information the Caesars defendants may have obtained about the plaintiff’s gambling history prior to his attendance.

[10] The plaintiff’s only evidence on this motion is from plaintiff’s counsel. In that affidavit, counsel states that he seeks to examine Mr. Laforet on RG issues and alcohol-related service policies and procedures. Under cross-examination, plaintiff’s counsel confirmed that his examination of the CEWL representative will also include questions on the underlying facts surrounding the plaintiff’s casino attendances.

[11] The plaintiff also relies on a press release dated July 18, 2018 wherein CEWL announced that it had achieved “responsible gambling accreditation through RG check, a new voluntary program created by the Responsible Gambling Council that offers gaming companies the opportunity to gain an independent assessment of the quality of their responsible gambling program”. The press release is the only evidence from the plaintiff of Mr. Laforet’s knowledge of accreditation. No other employees are mentioned in the press release.

[12] Mr. Laforet did not file any affidavit evidence on this motion and accordingly there is no evidence before the court as to his first hand knowledge of the issues in this lawsuit, his knowledge of RG policies and practices at Caesars Windsor, his knowledge of policies and practices related to alcohol service and records. Nor is there any explanation as to why he should not be examined.

[13] The defendant relies on the affidavit evidence of Ms. Cowie, the CEWL Manager, Legal Affairs and Compliance at the time of the occurrence. She had day to day responsibility at CEWL. When plaintiff’s counsel put CEWL on notice of this action on November 12, 2013, Ms. Cowie directed Clifford Lovell, a Corporate Investigator & Compliance Coordinator with CEWL, to commence an investigation of the claims. He was a retired police officer who was, at that time, responsible for investigating and reporting on incidents at CEWL. Ms. Cowie stated on her cross-examination that she keeps Mr. Laforet up-to-date at their quarterly meetings.

[14] While Mr. Laforet may have sufficient knowledge to answer the questions on responsible gaming policies and protocols, it would appear that he does not have sufficient knowledge of the day-to-day responsibility for gaming issues while other employees do have that knowledge. Further, there is no evidence that Mr. Laforet had at least some direct involvement with the parties and/or the transactions out of which the claims arise.

Oppressive to require Mr. Laforet’s Attendance

[15] It has been held that it is prima facie oppressive to require the president of a large company to attend at an examination for discovery where the case is not a landmark case. In Ward v Manulife Financial Ltd., [2002] O.J. No. 446, Master Beaudoin, as he then was, cited the court in Roe v Dominion Stores Ltd.:

This is not a land mark case. As important as the action is to the plaintiff and indeed to the defendant, an objective view must hold that the type of case and claim for damages is undoubtedly one of many that must arise. To expect the president of the company as large as this defendant to appear as representative of the defendant in a case that does not appear unusual, would be oppressive to the defendant, comparable to requiring the president of General Motors to appear on discovery in all claims as against General Motors.

[16] The plaintiff asserts that if he can prove the casino owed a duty of care to the plaintiff and it breached that duty of care, then it would be a land mark case as this would the be first case of its kind.

[17] This is not a land mark case. It is a claim by one plaintiff seeking damages for negligence from one or more defendants.

Prejudice

[18] Even if it might be found to be a land mark case due to the issue of whether a casino might be found liable for permitting an addicted gambler to gamble, there is no evidence that the plaintiff would suffer prejudice if he had to examine someone other than Mr. Laforet.

[19] In Thorne v AXA Canada Inc., 2010 CarswellOnt 1116, aff’d 2012 ONSC 2409 (Div.Ct.) the Divisional Court upheld a decision in which the court rejected a plaintiff’s request to examine the president of the defendant insurance company on the basis that the president had “little or no involvement in this matter” and the plaintiff had ulterior motives in seeking to examine him.

[20] The plaintiff submits that the choice of the corporate witness by an examining party is an important element of the examining party’s strategy and evidence it wants to obtain on discovery. It is the plaintiff’s view that it would be prejudicial to him and his counsel if he could not conduct the case in the manner they see fit, including their choice of discovery witness. The plaintiff has offered no evidence of the prejudice he might suffer if this motion is dismissed.

[21] Mr. Laforet is the most senior executive overseeing the casino’s operations. The time it would take him to properly prepare for the examination would be lengthy. It would take him away from his other managerial duties. As in CIBC, the prejudice to the defendant is evident.

[22] Ms. Cowie and Mr. Lovell were both prepared to attend to be examined on behalf of the Caesars defendants. As Mr. Lovell has now retired, Ms. Cowie would be the most appropriate representative. She oversees the corporate legal department. She oversees the gambling program including RG check accreditation. She is knowledgeable about the casino’s RG policies and procedures. She is aware of record-keeping details with respect to alcohol purchases. She knows about information-sharing between casinos. She is knowledgeable about the circumstances surrounding this incident.

[23] The evidence is clear that the plaintiff and his counsel have steadfastly refused to agree to examine Ms. Cowie or Mr. Lovell on behalf of CEWL. The plaintiff did not require the top executive at OLG to be examined on behalf of that defendant. It appears that it is the plaintiff’s strategy to cause the Caesars defendants inconvenience and it is for this reason that rather than move the action toward trial expeditiously, the action has been stalled due to intransigence by the plaintiff. I find this to be an ulterior motive.

Summary

[24] Even if it can be found that Mr. Laforet may be sufficiently knowledgeable, which I have not found, it would be oppressive to require him to attend. If he were examined, there would be an inordinate number of undertakings which would have to be given. Further, I find that there would be minimal, if any, prejudice to the plaintiff if required to examine Ms. Cowie (or Mr. Lovell). For these reasons, the plaintiff’s motion to compel the President and Chief Executive Officer of the casino operator to appear as a discovery witness on behalf of Caesars defendants is dismissed.

Costs

[25] This is a Brampton action. Unhappy with a lengthy wait on a long list on the day this motion was to be heard in Brampton, the parties were successful in convincing a ‘new’ judge in Brampton to have this motion heard in Toronto, where both counsel practice and where it would be “more convenient for counsel”. This is completely contrary to all Rules about where motions are to be heard. Counsel was well aware of all of those Rules and practice directions, but nonetheless made the request and were successful in having the motion hearing heard in Toronto.

[26] At the hearing in Toronto, counsel failed to advise this court until after their hearing was concluded of how it was that they ended up being heard in Masters’ court in Toronto. Further, they estimated the time required to hear the motion at two hours when they knowingly required a long motion. All of this amounts to disrespect to the court and to counsel in both Toronto and Brampton. The conduct is not to be condoned. There shall be no costs.

Released: ______________________ MASTER RONNA M. BROTT