COURT FILE NO. : CV- 17-577057 MOTION HEARD : 20190731 REASONS RELEASED : 201 90814 SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
GEORGE D’ONOFRIO Plaintiff
- and-
ZSUZANNA KASZAS, 2095899 ONTARIO LIMITED, PETER SADEK, AHMED BAIG and DIRECT CAPITAL CORP Defendant s
BEFORE: MASTER D. E. SHORT
COUNSEL: David Conn davidconnbarrister@gmail.com for the moving party defendant Kaszas
Sarah Corman scorman@cormanfeiner.com for the responding party plaintiff
REASONS RELEASED: August14, 2019
Reasons for Decision
I. Overview
[ 1 ] The Defendant Zsuzanna Kaszas is one of a number of defendants sued by the Plaintiff George D’Onofrio for damages allegedly suffered when Kaszas took over the office location previously occupied for a number of years by his medical practice, prior to his electing to retire from his “very busy family medicine practice”, after more than 40 years.
[ 2 ] There are a number of issues raised in this action flowing from the manner in which Dr. Kaszas came to occupy his former office without paying any compensation to the plaintiff.
[ 3 ] The uncontradicted evidence is that they only had one meeting in person, between these two doctors, to discuss how this situation developed and any possible resolution.
[ 4 ] The action was commenced in June of 2017 and was approaching the discovery stage when the present issue arose.
II. Positions of Parties
[ 5 ] Dr. Kaszas moves for an Order that the plaintiff be prevented from being present during his counsel’s examination for discovery of Dr. Kaszas. Salient portions of the affidavits of both parties are set out below. Neither deponent was cross examined.
[ 6 ] The moving defendant asserts, in part:
I first met the plaintiff Dr. George D'Onofrio (the "plaintiff') on or about June 15, 2015 when he attended at my office. His visit only lasted a few minutes.
The plaintiff called me on or about June 16, 2015. At first, he was very pleasant and then his demeanour changed. He became very aggressive and rude. He told me that I had no right to use his medical charts and he expected financial compensation for his files. I told him that he could take his files and when he advised me that the furniture was his, I told him that he could take his furniture as well.
The plaintiff demanded a meeting with me, and I told him that I did not want to meet him. He then argued with me in a very angry and aggressive manner until I agreed to a meeting. After his phone call I was in shock and could not stop shaking. I was unable to work for approximately one hour after the call.
I was not going to meet with Dr. D' Onofrio so I sent my husband, Larry Bukta, instead. He met with the plaintiff on or about June 23, 2015. I am informed by my husband, and do verily believe, that the plaintiff claimed that I was taking over his practice….
The plaintiff has engaged in a campaign of intimidation and harassment against me and my spouse. I believe that, given the above, if the plaintiff is present in the room during my examination for discovery, I will suffer stress and anxiety that will compromise my ability to conduct myself under questioning.
I swear this affidavit for a motion excluding the plaintiff Dr. George D'Onofrio from my examination for discovery and for no improper purpose
[ 7 ] The plaintiff’s responding affidavit asserts:
I swear this affidavit in response to the affidavit of Dr. Kaszas and her motion seeking an order excluding me from attending her examination for discovery in this action, and for no other purpose .
I am a 75-year old retired family physician. I was duly licensed to practice medicine in the Province of Ontario and carried on a busy medical practice for 44 years .
Contrary to the narrative set out in Dr. Kaszas' affidavit, I have never threatened, harassed or attempted to intimidate Dr. Kaszas.
In fact, I have had very little direct interaction with Dr. Kaszas at all. To the best of my recollection, the entirety of my direct interaction with Dr. Kaszas consists of one in-person meeting and two telephone calls.
I did not threaten, harass or seek to intimidate Dr. Kaszas during any of these interactions.
Since the telephone conversation of mid-June 2015, I have had no further direct contact with Dr. Kaszas. I have not met with her in person, spoken with her on the telephone or corresponded with her directly in writing.
Dr. Kaszas and I have a business dispute. I have sought a resolution to this dispute through legal action, and never through any sort of intimidation, as suggested in Dr. Kaszas' affidavit. The nature of the dispute is set out in my Statement of Claim:
“27. Dr. Kaszas breached her agreement with Dr. D'Onofrio to do a locum in his practice. instead, she effectively took his practice without paying him a penny for it. She moved into his former space, scanned his patient records, assumed the care of and rostered many of the patients from his practice without his authorization. Her actions made it impossible for Dr. D'Onofrio to sell his valuable busy practice to any other physician.
[ 8 ] In particular the plaintiff makes these specific assertions:
When I spoke with Dr. Kaszas on the phone in June 2015 (my last direct interaction with her), I communicated that we had a business dispute in that she appeared to intend to continue to operate my medical practice without my receiving any compensation for it. I did not threaten, harass or seek to intimidate her. I asked for a meeting with Peter Sadek and Dr. Kaszas, which Dr. Kaszas purported to arrange. In approximately the next couple of days, Dr. Kaszas phoned me and left a voicemail with the time and location of this meeting.
However, as recounted in paragraph 25 of my Statement of Claim, when I arrived at the stated location, I was met to my surprise only by Dr. Kaszas' husband, whom I had never met previously, who demanded I sign a document with which I did not agree. He also demanded that I remove all of my files and furniture from the medical office.
In June 2017, 1 commenced this legal action against Dr. Kaszas and the other defendants. 1 have had no direct contact with her in respect of this litigation. The only communication has been through our lawyers.
[ 9 ] At the conclusion of his affidavit the Plaintiff makes these sworn statements:
I am the only plaintiff in this action and am adverse to all of the other parties.
I want to be present at the examinations for discovery of the defendants, including Dr. Kaszas, in order to hear the evidence of the defendants and instruct my counsel accordingly. I feel that I have been deceived by all of the defendants and I do not know what they are going to say at their examinations. I wish to be there to instruct my counsel in respect of whatever it is they say.
I have full respect for the legal process and will certainly not engage in any inappropriate behavior or seek to intimidate Dr. Kaszas at her examination for discovery.
III. Exclusion May Only be Ordered in Exceptional Circumstances
[ 10 ] My understanding of the present state of case law in this area is that the “inherent right” of a party to be present during an out-of-court examination of the opposite party “is lost only when cause, in the form of exceptional circumstances, is found to exist.” (Redekop v. Redekop (1998), 41 O.R. (3d) 301 (Ont. Gen. Div.)),
[ 11 ] I accept and adopt the plaintiff’s submission that the applicable principles on a motion for an exclusion order on the basis of alleged intimidation were summarized by D.M.Brown J. (as he then was) in York University v. Markicevic, 2012 ONSC 5325, at para. 8, as follows:
(i) There is an inherent right for parties to an action to be present during the cross-examination or examination for discovery of other parties to, or witnesses in, an action;
(ii) The court has the discretion to exclude parties from attending such cross-examinations or examinations for discovery;
(iii) However, the court does not establish classes of cases which eliminate a party's inherent right to be present at an examination - "blanket exclusions" do not form part of our procedural law;
(iv) The person seeking to exclude a party from an examination bears the onus, on a balance of probabilities, of showing cause to justify such an exclusion ;
(v) Cause depends on the circumstances of the case. Courts have defined cause as a realistic and substantial cause , circumstances that would cause prejudice to the party to be examined, or circumstances that make exclusion necessary to secure the ends of justice; and,
(vi) Demonstrated intimidation by one party towards the other is a justifiable reason to exclude, however a court should guard against assuming intimidation from a set of circumstances. Intimidation must be proven. [my emphasis added.]
[ 12 ] The burden of proof applied by the British Columbia Court of Appeal in 1951 in Sissons v. O lson, ( 1951 CarswellBC 28 ) as relied on by Dr. Kaszas, has been rejected in Ontario. Redekop v. Redekop, (1998), 41 O.R. (3d) 301, was a family law proceeding in which an exclusion order was sought and in which the issue of intimidation was raised. Quinn J stated:
It is contended before me that the presence of the applicant during the examination for discovery of the respondent will be intimidating to the respondent. Intimidation by the applicant certainly would serve to bar her from the discovery. However, the existence of intimidation, or the likelihood of it occurring, in my view, must be established by the respondent in accordance with the civil burden of proof. In that regard I respectfully disagree with the statement of Smith J.A. in Sissons v. Olson (1951), 1951 Canlll 480 (BC CA), 1 W.W.R. (N.S.) 507 at p. 511 (B.C.C.A.), that the onus upon a party attempting to exclude an opposite party is not "a heavy one" and that "the onus is lighter on discovery than at trial". I see no reason to differentiate between discovery and trial; in most respects the former is every bit as important as the latter.
[ 13 ] It is not enough for the respondent to say that he is, or will be, intimidated if the applicant is present during his discovery; there must be some evidence from which this court can objectively arrive at that conclusion.
[ 14 ] In my view the evidence does not support a finding that Dr. Kaszas is likely to be intimidated by Dr. D'Onofrio to such an extent that he ought to be excluded from her discovery. Specifically, in my opinion, she has failed to demonstrate, on a balance of probabilities, that she is likely to be unduly intimidated by Dr. D'Onofrio, if he is allowed to be present.
[ 15 ] In York University v. Markicevic, the plaintiff University sought to exclude the defendant from the examination for discovery of its representative, on the basis of the defendant's alleged history of insulting, abusive and threatening behaviour towards the deponent in an employment context and a letter from the deponent's treating psychiatrist.
[ 16 ] Justice Brown declined to exclude the defendant and found:
I have no doubt that Mr. McCann is anxious about his pending cross-examination. Evidently he has suffered from anxiety and depression since the time of his 2006 car accident. I have no doubt that his involvement in this litigation has only increased his level of anxiety; that is perfectly natural and understandable. But, this is a case about money, and whether or not it was properly used and accounted for. It is not a case involving a past physical altercation between the party and the affiant, nor is it a matrimonial case, two types of cases in which the particular circumstances occasionally have resulted in an exclusion order.
Mr. McCann's psychiatrist expressed concern about the effect of a cross-examination in the presence of Mr. Markicevic on her patient's mental state because Mr. McCann had always felt "intimidated, manipulated and threatened" by Mr. Markicevic. That evidence does not rise to the level of justifying the exclusion of Mr. Markicevic.
[ 17 ] In my view the evidence provided by Dr. Kaszas on this motion falls far short of that presented by the unsuccessful moving party in York University v. Markicevic. It is natural that involvement in litigation will increase a party's anxiety; however, this is not sufficient to justify an exclusion order. It is not sufficient that a party may be uncomfortable and experience anxiety if the other party is present, nor is it sufficient that the party being examined has a "general feeling of intimidation". To succeed on such a motion the moving party must demonstrate an objective basis for the feeling of intimidation or fear.
[ 18 ] More recently in Elzen v. Kelly, 2016 ONSC 4093, Goldstein J. determined that the moving party had not "demonstrated a real and substantial probability that intimidation is likely to occur" and dismissed the motion for an exclusion order.
[ 19 ] Counsel for the plaintiff points out that Justice Goldstein accepted “that Ms. Den Elzen may be uncomfortable and experience anxiety if Mr. Kelly is present”, noting that “[t]hat is not, however, the same thing as Mr. Kelly causing discomfort and anxiety by some act of intimidation .” (emphasis added).
[ 20 ] Dr. Kaszas' reported feelings of anxiety and discomfort or some general feeling of intimidation do not provide a basis for the exclusion order she seeks. Nor does the balance of the evidence, in my opinion, support an objective determination that she is likely to be unduly intimidated by Dr. D'Onofrio at her examination for discovery. In alleging intimidation on the part of Dr. D'Onofrio, Dr. Kaszas points to only one direct interaction, the phone call of June 16, 2015. That in my mind does not constitute an act of intimidation that would justify the order sought.
IV. Disposition
[ 21 ] In the result Defendant’s motion is dismissed.
[ 22 ] Applying proportionality, in the circumstances of this motion, costs are fixed at $5000, payable by the moving party, to the plaintiff within 30 days.
R. 274/DS Master D.E. Short