Court File and Parties

COURT FILE NO.: CV-05-299825-0000 DATE: 20230206 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

VALENTINA AVDEEVA Plaintiff – and – CAROLINE KHOUSEHABEH, Trustee Defendant

Counsel: Ray Thapar, for the Plaintiff David Wagner, for the Defendant

MOTION HEARD: February 6, 2023

Papageorgiou J.

[1] This action was commenced in 2005, concerns matters which took place prior to 2005 and proceeded to trial in January and February 2023.

[2] The plaintiff Valentina Avdeeva (“Valentina”) claims that Levon Khankaldiyan a.k.a. Levon Khankaldiyan Haftvan (“Levon”) converted one piece of real property (the “Victoria Property”) and that his title interest in a second (“Bowan Court”) is held in trust for her.

[3] Levon’s position was that he was in a common law relationship with Valentina’s daughter Elena, and that the Victoria Property was gifted to him by Valentina as a birthday present, and that Bowan Court was a gift from Valentina to be the matrimonial home where he and Elena would reside. He has taken the position that part of his role in the family was as a surrogate father for Elena’s daughter, Stephanie.

[4] Valentina and Elena admit that Levon was a trusted friend, that he was Elena’s daughter’s godfather, but dispute all allegations concerning a romantic or common law relationship between Levon and Elena. They admit that he lived with them during a number of years, but take the position that he was a tenant.

[5] Levon passed away in 2018 and the action has continued against his Estate Trustee, Caroline Khoushabeh (“Caroline”).

[6] There are a number of evidentiary issues that have arisen during the course of this trial; this is my decision regarding these issues as well as my direction regarding further submissions which I require.

New Documents Produced During the Trial

[7] One of the witnesses who testified was Stephanie Klevstova, Valentina’s granddaughter and Elena’s daughter. During her examination, Valentina’s counsel asked her about one of the new documents which had been produced by Caroline in December 7, 2022 [1] which was a series of Facebook message purportedly exchanged between Levon and Stephanie. This was found at Tab 446 of Caselines. It appears that the reason it has been referenced by Caroline is the reference within the body of the Facebook message to “Daddy jaan” which Caroline argues means daddy’s dearest.

[8] At the commencement of Stephanie’s examination, Valentina’s counsel sought to admit the original Facebook page which shows the message which she received in her Facebook account. This message did not contain the words “Daddy jaan”.

[9] Valentina’s counsel explained that he had asked Stephanie to prepare and when she was looking through the documents, she saw that reference in the Facebook message, realized that she never called him that and began reviewing her emails and Facebook account. She located the original of the message which did not contain those words. He received this document at 9:47 that morning and asked her to prepare a video which showed that when she opened up her Facebook account, the words “daddy jaan” were not in the body of the message. Otherwise, the messages exchanged were the same.

[10] Caroline’s counsel objected to this on the basis that this was an ambush and that Valentina’s counsel had failed to produce this before or at least advise him as soon as it had been discovered.

[11] Her counsel pointed out that while the message was not part of Levon’s affidavit of documents, it was attached to an affidavit which he filed in 2013 and as such, Valentina has had effective notice of it since that time.

[12] We adjourned for the day. The following day, Caroline’s counsel advised that he was content to admit Stephanie’s copy of this message, but that he also wanted to admit yet another document which was an email exchange purportedly between Stephanie and Levon.

[13] Rule 30.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:

30.08 (1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,

(a) if the document is favorable to the party’s case, the party may not use the document at the trial, except with leave of the trial judge; or

(b) if the document is not favorable to the party’s case, the court may make such order as is just. R.R.O. 1990, Reg. 194, r. 30.08 (1) ; O. Reg. 504/00, s. 3.

[14] However, Rule 53.08 directs that if evidence is admissible only with leave of the trial judge, then it SHALL be granted on such terms as are just with an adjournment if necessary, unless to do so would cause prejudice to the opposite party or will cause undue delay. Specifically, it reads as follows:

EVIDENCE ADMISSIBLE ONLY WITH LEAVE

53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. O. Reg. 284/01, s. 13.

(2) Subrule (1) applies with respect to the following provisions:

1. Subrule 30.08 (1) (failure to disclose document).
2. Rule 30.09 (failure to abandon claim of privilege).
3. Rule 31.07 (failure to answer on discovery).
4. Subrule 31.09 (3) (failure to correct answers on discovery).
5. Subrule 53.03 (3) (failure to serve expert’s report).
6. Subrule 76.03 (3) (failure to disclose witness). O. Reg. 284/01, s. 13; O. Reg. 260/05, s. 11.

[15] Both of the documents have some relevance to Stephanie’s relationship. Rule 53.08 directs that leave must be granted unless to do so would cause prejudice to the opposite party or undue delay.

[16] I am satisfied that the two documents in question are of a limited nature, and that both counsel will be able to cope with any surprise that the admission of such documents may have caused.

Issues Related to Caroline Khoushabeh’s Testimony

[17] The trial was originally scheduled to commence on January 9, 2023. On December 7, 2022, Caroline produced 147 additional documents. (During the trial, she indicated that she had found these documents in Levon’s apartment in 2018 shortly after he passed away. She indicated that she did not realize their relevance until shortly before trial.)

[18] When Caroline produced these additional documents, Valentina requested an adjournment to enable her to review and consider the documents and also conduct an examination of “the affiant.” The parties appeared before Justice Chalmers. Caroline’s position was that the estate trustee (Caroline) had no information about the additional documents and therefore a further examination would not yield any relevant evidence.

[19] Caroline took the position that the documents were not hers but Levon’s and that she has no information about these documents and that a discovery of the estate trustee will not result in any relevant or valuable information.

[20] Justice Chalmers noted that Valentina set the action down for trial on December 21, 2021 and that the pre-trial took place on November 22, 2022. At the time of the pretrial, both parties indicated that the documentary and oral discoveries were complete and that the parties were ready to proceed.

[21] Justice Chalmers did not accept Caroline’s explanation at the time was that the documents had not been produced earlier because Caroline could not determine the relevancy of the documents. She delivered answers to undertakings on October 30, 2019 and would have had to become familiar with the case in order to do that.

[22] Before Justice Chalmers, Valentina also took the position that the willsay statements produced by Caroline were lacking in substance, simply setting out topics that counsel expected the witness to testify to without providing the substance of the expected evidence.

[23] Justice Chalmers adjourned the trial scheduled for January 19, 2023 and ordered discoveries and cross examinations of the additional documents. He also ordered that Caroline provide meaningful willsay statements.

[24] He wrote:

I am satisfied that a brief adjournment is appropriate and just in the circumstances to allow the Plaintiff to carry out these additional steps. The adjournment cannot however be open ended. This case has been going on long enough. Considerable resources have been expended to get to this point. I agree with the submissions of the Defendant that justice delayed is justice denied. The case must not be delayed any more than is necessary. [16] I adjourn the matter for three weeks. The trial is now scheduled to commence on January 30, 2023. I order that over the next three weeks, the estate trustee will make herself available for an examination under oath. I also order both parties to provide meaningful willsay statements of their expected witnesses that provide not just the topics to be addressed in the testimony but also the substance of their evidence. The parties are required to file written opening statements before the commencement of trial. The Defendant may submit a new opening statement and is not bound by the statement previously filed. All other orders of the pre-trial conference judge remain in effect.

[25] At trial, Caroline sought to give evidence as to her personal knowledge of the matters in issue in this matter as a witness. As will be further discussed below, the bulk of this evidence was hearsay evidence as to what she had been told by Levon regarding his relationship with Elena and Stephanie, which is an issue in this proceeding.

[26] Valentina objected to this evidence on the basis that Caroline had refused to answer questions as to matters of which she was aware of in her personal capacity.

[27] Caroline’s counsel argues that the examination ordered by Justice Chalmers was only a cross examination on the affidavit of documents and as such, the refusal was proper. He also argues that he provided all or most of the answers to the refused questions at a later point in any event.

[28] As to the first point, Justice Chalmers ordered that “the estate trustee will make herself available for an examination under oath.”

[29] Caroline’s counsel relies upon the case Cohen v. Cohen, 2021 ONSC 581 for the proposition that absent an order for questioning of an estate trustee personally (as a non-party), the trustee was not required to answer questions intended to solicit his personal knowledge.

[30] It does appear that Justice Chalmers meant that Caroline would be produced to answer questions in her capacity as estate trustee only; however, it does not appear that Justice Chalmers was aware that Caroline also had evidence to give in her personal capacity.

[31] In addition, as set out above, Justice Chalmers also ordered that the parties provide meaningful willsay statements for their expected witnesses. It is clear that Justice Chalmers’ goal was to ensure that trial by ambush did not occur.

[32] Caroline did not provide any willsay statement as to the evidence she would give as a witness to the matters in issue in this proceeding.

[33] Caroline makes the twin argument that she did not have to answer any questions during the examination related to her knowledge about the matters in dispute because she was only an estate trustee, while also failing to provide a willsay statement as to what she would say based upon her personal knowledge of the matters at issue. All of this occurs within the context of her having provided late discovery of 147 documents in December 2022 which necessitated an adjournment.

[34] The non hearsay evidence which Caroline gave in chief included her background, the fact that she met Levon when they were both teenagers, that she attended some of his theatrical events, her observations of Levon in terms of the way that he referred to Elena, Stephanie and Valentina. She said that she heard Levon call Stephanie his daughter, she heard him refer to Valentina as his mother in law, and that he referred to Elena as his wife. She sometimes saw Stephanie call Levan “Daddy Jaan”, which means Daddy’s dear in Armenian and Farsi. She had Elena, Stephanie and Levon over for dinner in 1997 or early 1998 with another couple. Sometime in 2002, Levon invited her to Bowan Court when Elena, Stephanie and Valentina had gone on a trip. He gave a tour of the house and showed her the master bedroom where he slept which showed his clothes strewn all over the room. When she visited the house, he proudly showed the TV and sound system he bought.

[35] As to Caroline’s position that she has already provided the answers, even though they were refused, these are some examples of the refusals made and the answers which Caroline provided:

To advise whether Ms. Khoushabeh had any involvement in this litigation prior to Mr. Haftan’s death Ms. Khoushabeh attended to be cross examined in respect of the supplementary affidavit of documents and this question is therefore inappropriate. Further, whether Ms. Khoushabeh was involved in the litigation prior to Mr. Haftan’s death is not relevant.

To advise who Ms. Khoushabeh heard about the litigation from Ms. Khousahbeh attended to be cross examined in respect of the supplementary affidavit of documents and this question is therefore inappropriate. Further, when Ms. Khoushabeh first heard about the litigation and from whom is not relevant. However in an effort to avoid any further delay by the plaintiff, Ms. Khoushabeh is providing the following answer. Ms. Khoushabeh heard about the litigation from Mr. Haftan in or around 2005 or 2006

To advise whether Ms. Khoushabeh had any discussions with Mr. Haftan about the litigation prior to Mr. Haftan’s death Ms. Khousahbeh attended to be cross examined in respect of the supplementary affidavit of documents and this question is therefore inappropriate.

To advise of the particulars of any discussions Ms. Khoushabeh had with Mr. Haftan regarding the issues in this lawsuit Ms. Khousahbeh attended to be cross examined in respect of the supplementary affidavit of documents and this question is therefore inappropriate.

To advise whether Ms. Khoushabeh can contribute relevant evidence with respect to the relationship of Mr. Haftan to the Avdeeva family from her personal knowledge. Ms. Khousahbeh attended to be cross examined in respect of the supplementary affidavit of documents and this question is therefore inappropriate. However in an effort to avoid further delay by the plaintiff, Ms. Khoushabeh is providing the following answer. Yes, Mr. Haftvan often referred to the Avdeeva family as his family and specifically referred to Stephanie as his daughter. In fact, Ms. Khoushabeh believed that Stefanie was Mr. Haftvan’s biological daughter until Mr. Haftvan told her otherwise in or around the same time she found out about the within litigation.

To advise whether Mr. Haftvan considered Elena Klestova to be his spouse. Ms. Khousahbeh attended to be cross examined in respect of the supplementary affidavit of documents and this question is therefore inappropriate. Further, Ms. Khoushabeh cannot answer questions about Mr. Haftvan’s state of mind. However, in an effort to avoid any further delay by the plaintiff Ms. Khoushabeh is providing the following answer Mr. Haftvan referred to Avdeeva as “mama” and referred to Elena Kelvstova and Stefanie as his family. Ms. Khoushabeh does not recall whether Mr. Haftvan specifically referred to Elena as his spouse, but she understood they were in a romantic relationship

To advise whether Mr. Haftvan and Elena were spouses Ms. Khousahbeh attended to be cross examined in respect of the supplementary affidavit of documents and this question is therefore inappropriate. Further, this question calls for a legal conclusion

To advise whether Mr. Haftvan regarded Elena Klevstova as a spouse under the Family Law Act, whatever definition is. Ms. Khoushabeh cannot answer questions about Mr. Haftvan’s state of mind. That said, Ms. Khoushabeh acknowledges that Mr. Haftvan signed the solemn declaration at Tab 61 of the supplementary affidavit of documents which states that he is not a spouse. Ms. Khoushabeh further states that Mr. Haftvan and Elena Klevstova subsequently executed declarations indicating that they were spouses within the meaning of the Family Law Act (Ontario).

[36] The answers provided are not as fulsome as the evidence which Caroline gave at trial, although there is some overlap. I note one discrepancy. In the above answers, Caroline indicated that she did not recall whether Levon specifically referred to Elena as his spouse, but at trial, she testified that he referred to her as his wife.

[37] Valentina’s counsel submitted a written motion to me by email on Sunday February 5, 2023 seeking to prevent Caroline from giving evidence which she refused to answer when examined and/or that she failed to provide by way of a willsay statement.

[38] Caroline’s counsel took the position that Valentina’s counsel had failed to submit a proper motion. Indeed, he had not seen Valentina’s motion at all. It later became apparent that Valentina’s counsel had misspelled his email address which is why he had not received the motion.

[39] I noted Valentina’s objection and permitted the examination to take place (without requiring objections at each and every question) on the basis that I would consider the matter later. I did not want to hold up the trial of this matter which has already been significantly delayed pending receipt of Caroline’s counsel’s submissions on the issue.

[40] After Caroline’s evidence in chief was concluded, we adjourned for the day and I permitted Caroline’s counsel to provide his response to Valentina’s motion.

[41] The jurisprudence has made it abundantly clear that the days of surprise and trial by ambush are a thing of the past. Various amendments to the Rules of Civil Procedure, R.R.O., 1990, Reg. 194 have been made to require full disclosure by all parties in a timely fashion. See Jameison v. Kapashesit, 2018 ONSC 279 at para 11.

[42] See also Iannarella v. Corbett, 2015 ONCA 110 at paras 42, 46, 55, Moghimi v. Dashti, 2016 ONSC 2116, Singal v. Signal, 2019 ONSC 2758, Stone v. Ellerman (2009) BCCA 284 at para 2 and Perini v. Parking Authority of Toronto (1975), 1975 ONCA 761.

[43] Caroline has sought to have it both ways. She refused to answer questions about what she knew taking the position that she need only answer questions in her capacity as estate trustee, but that she can put on another hat and be a witness, and not have to provide a willsay because she is a party as estate trustee.

[44] While it may be debatable whether Caroline was required to answer questions during her examination, in my view, the approach she has taken is a litigation tactic and inconsistent with the principle that trial by ambush is a thing of the past. At a minimum there has been a failure to comply with the spirit of Justice Chalmer’s order.

[45] I add that even though she did subsequently provide some answers, her refusal to provide any evidence about what Levon told her about the issues in this proceeding was maintained. This was the bulk of her evidence as will be seen below and I will address this evidence separately in these reasons.

[46] I repeat, this action concerns matters which took place between 2001 and 2005 and has taken almost twenty years to get to trial. The last adjournment was caused by Caroline and her conduct now, if permitted, will cause some additional delay.

[47] Rule 53.08 which provides that where there has been a failure to comply with the rules such that leave to admit is required, leave shall be granted unless to do so would cause prejudice or undue delay.

[48] There is an argument that the admission of Caroline’s evidence will cause prejudice and undue delay. Caroline’s argument that prejudice has already been addressed because Valentina’s counsel has had the afternoon to prepare for his cross examination fails to take into account the fact that none of Valentina’s witnesses have had an opportunity to address Caroline’s evidence in their examination in chief. This trial is scheduled to be completed on February 8, 2023.

[49] However, given the fact that her non-hearsay evidence is relevant, I am loathe to exclude it.

[50] Therefore, the evidence I have summarized above which is non-hearsay will not be excluded. As I have said, the non hearsay portion of Caroline’s evidence was very limited in any event.

[51] To address any prejudice, I will permit Valentina’s counsel to call witnesses to address any non-hearsay evidence in rebuttal after Caroline closes her case, if she feels that she must address any of it. As Caroline’s non-hearsay evidence was limited, this will not cause any undue delay.

Caroline’s Hearsay Evidence

[52] As stated above, most of Caroline’s evidence was obvious hearsay consisting of what Levon had told her about his relationship with Valentina’s family, which is an issue in this proceeding. That refusal was maintained and Valentina has never had advance notice of this.

[53] For example, she gave evidence that:

• Levon told her that he was madly in love with Elena
• During the summer of 1999 Levon asked to stay with Caroline because he had had a fight with Elena and she threw him out. They reconciled and he moved back after a couple of weeks
• Levon’s mother told her that she hated how Levon was being treated by Elena
• Levon told her he was living in an apartment with Elena and Stephanie
• Levon told her that he was renting a room in a house, but once he knew Elena was coming, he rented an apartment where he could live with Elena
• Levon said that his mother was buying a house for him and his family to live in. Levon told her that on occasion Valentina and her husband would stay there when in Canada but it was primarily Levon and Elena’s house.
• Levon told her that “we are buying a house” with reference to Bowan Court and that he was very much involved in the search and purchase.
• Levon told her that he was giving Elena $10,000 a month for her expenses to pay for their lifestyle because Elena was not working and not earning enough.
• Valentina was away most of the time (She never met Valentina and only went to Bowan Court or places she resided once according to her evidence. The only way she could have known this is if Levon had told her.
• Levon told her that he was working very hard and making $10,000 a month selling phone cards.
• Levon told her he set up an RESP for Stephanie
• Levon said he paid for trips for the Avdeeva family.
• Levon told her that he moved out of Bowan Court in October 2003 because they were fighting. He said that they needed time to work through their problems.
• After he moved out, Levon took Stephanie to the library and book stores.
• Levon met with Valentina secretly and she begged him not to tell anyone. They discussed a financial resolution. He asked for $500,000 to sign everything over to her and she made it clear it was not up to her.
• Levon told her that Elena was behind the whole lawsuit. That she had made false allegations against him and told him that he could not visit Stephanie unless he paid her $5000 in child support.
• Levon had purchased two preconstruction condominiums and paid all the deposits. When the time was ready to close, his lawyers told him that Elena needed to sign off because of the nature of their relationship but she refused to sign off unless he transferred one of the condos to her. He said he had no choice and did so.
• Levon told her that Valentina was trying to take away his properties.
• Elena pressured Levon to write and sign some documents that said he owed money but he never actually borrowed it.
• Elena had a plan to defraud Valentina’s husband who was not Elena’s father. Elena was worried that she would not be included in his will because he was not her biological father. Elena came up with a plan to buy properties in Canada using Mr. Avdeeva’s money so that the properties would pass to her and she would get a share. But Mr. Avdeeva would not simply give them the money to buy property in their names. They needed to tell him that Levon was borrowing money and would pay him back. The promissory notes he signed were a part of this plan. They used the money they represented that Levon had borrowed to buy properties in their own names.
• Levon told her that Victoria Park had been gifted to him by Ms. Avdeeva.

[54] Permitting the admission of this evidence, even with a low weight, would cause prejudice and undue delay. First, it would be necessary to allow Valentina to call evidence in rebuttal on all of this; this trial is scheduled to conclude on February 8, 2023 and it would take much more than a few days of rebuttal evidence, working with the schedule of both counsels, myself and any witnesses.

[55] In any event, there are no exceptions to the hearsay rule that would permit the admission of this evidence. The fact that Levon has passed away does not make this evidence admissible.

[56] It is well known that there is a principled exception to the hearsay rule established in R. v. Khan, [1990] 2 S.C.R. 531. It provides that a trial judge has the discretion to admit hearsay where there is no specific exception to the rule, provided that the evidence meets the test of necessity and reliability. In R. v. B (K.G.), [1993] 1 S.C.R. 740, R. v. Smith, [1992] 2 S.C.R. 915 and R v. Finta, [1994] 1 S.C.R. 701 the Supreme Court indicated that the principled approach to hearsay would not be confined to the particular fact situation in R v. Khan, which was a case where a child’s out of court statement to her mother regarding a sexual assault was admitted.

[57] In R. v. Smith, Justice Lamer wrote:

What is important in my view is the departure signaled by Khan from a view of hearsay characterized by a general prohibition on the reception of such evidence subject to a limited number of defined categorical exceptions, and a movement towards an approach governed by principles which underlie the rule and its exceptions alike.

[58] Evaluating such statements based upon necessity/reliability ensures that the evidentiary dangers normally associated with hearsay, namely, the absence of oath or affirmation, the inability of the court to assess the declarant’s demeanour, and the lack of contemporaneous cross examination, are minimized.

[59] In this case, the evidence is not necessary. Although Levon has passed away, his examination for discovery transcript is agreed to be admitted together with some of his affidavit evidence. There is a great deal of documentary evidence which is contemporaneous and which the parties have submitted in support of their positions.

[60] The evidence is not reliable. The evidence consists of purported out of court statements made by Levon, many years ago to Caroline (almost twenty year ago). In the interim, she has become Estate Trustee and has been managing this case which has involved her review of his affidavits and his discovery transcripts. She made reference to them many times. There is no reason to think that she is remembering something he told her twenty years ago as opposed to unintentionally informing her evidence based upon what she has now read that Levon has said.

[61] The evidence that is sought to be given is the kind of hearsay evidence which has the most evidentiary dangers. Even if I were to admit it, I would not give it any significant weight in the circumstances. Accordingly, it makes no sense to admit the evidence and then delay the conclusion of this matter by permitting Valentina to call rebuttal evidence.

[62] This issue must be determined now and my decision is that this evidence will not be admitted.

Objections Based on Browne v. Dunn

[63] The parties have consented to Levon’s discovery evidence being read into evidence in accordance with r. 31.11(6), to the extent that it would be admissible if he were testifying in court.

[64] Levon had sworn various affidavits in this matter in connection with motions brought by both sides and he was cross examined on some of these. Valentina initially opposed the filing of his affidavits at trial. As of the writing of this decision, they have not yet advised me whether they have agreed upon whether all of his affidavits may be admitted and I am awaiting their position.

[65] Caroline raised an issue regarding Browne v. Dunn with respect to Levon’s evidence. She argued that Valentina could not lead any evidence of any fact if Levon had not been asked about that fact in connection with his examination for discovery or cross examination pursuant to the affidavits which he filed. Counsel did not provide any direct authority for this proposition and rested on the general argument that Browne v Dunn is based upon fairness; he argued that in this case, it would be unfair to allow Valentina to lead evidence that he did not have a chance to respond to.

[66] Because of the sheer volume of the kinds of evidence which could be at issue, and the likelihood that the trial would be disrupted continually by ongoing objections, together with a search in the moment for the transcript references or affidavit references which proved that Levon had never been asked about these things, I directed that I would hear all of the evidence and that at the conclusion, counsel would make written submissions on the applicability of Browne v. Dunn in the manner argued by Caroline’s lawyer.

[67] I have considered this further and in my view, before the parties are put to the expense of parsing out all of the evidence that Levon was never asked about during his examination or cross examinations, the parties should provide their legal argument on the applicability of Browne v. Dunn for my decision first. If I determine that Browne v. Dunn is not applicable in the manner asserted, it will save the parties the time and expense of parsing out the evidence that was led that he was never asked about.

[68] I am directing that the parties provide me with written submissions on this issue within 7 days of the conclusion of the trial, and prior to the delivery of their written closing submissions.

[69] I am also directing that the parties either provide me with their position on the admissibility of his affidavits or that Caroline bring a formal motion before the conclusion of this trial, together with legal argument on the issue and that Valentina’s counsel respond. The parties may discuss the timing of this with me on February 7, 2023.

Edward Hambrachian’s Evidence

[70] Caroline asserts that Edward Hambrachian’s evidence should not be admitted on the basis of Browne v. Dunn because Levon was not given an opportunity to give his evidence on Elena’s assertion that she was in fact in a relationship with Edward during this time period. As set out above, I am requesting detailed written arguments from the parties on this issue and these reasons with respect to Mr. Hambrachian’s evidence do not apply to the concern which Caroline raised about Browne v. Dunn. I will consider whether his evidence should be excluded on that basis after I have received fulsome submissions on the issue.

[71] Caroline also objected to Edward Hambrachian’s evidence as well as Elena’s that she had a romantic relationship with him during the relevant period on other bases, namely on the basis of r. 31.07 and r. 31.09(3).

[72] Rule 31.07 provides as follows:

31.07 (1) A party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question if,

(a) the party or other person refuses to answer the question, whether on the grounds of privilege or otherwise;

(b) the party or other person indicates that the question will be considered or taken under advisement, but no answer is provided within 60 days after the response; or

(c) the party or other person undertakes to answer the question, but no answer is provided within 60 days after the response. O. Reg. 260/05, s. 7.

Effect of Failure to Answer

(2) If a party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question as described in subrule (1), the party may not introduce at the trial the information that was not provided, except with leave of the trial judge. O. Reg. 260/05, s. 7.

[73] Rule 31.09(3) provides as follows:

31.09 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,

(a) was incorrect or incomplete when made; or

(b) is no longer correct and complete,

the party shall forthwith provide the information in writing to every other party. R.R.O. 1990, Reg. 194, r. 31.09 (1) .

Consequences of Correcting Answers

(2) Where a party provides information in writing under subrule (1),

(a) the writing may be treated at a hearing as if it formed part of the original examination of the person examined; and

(b) any adverse party may require that the information be verified by affidavit of the party or be the subject of further examination for discovery. R.R.O. 1990, Reg. 194, r. 31.09 (2) .

Sanction for Failing to Correct Answers

(3) Where a party has failed to comply with subrule (1) or a requirement under clause (2) (b), and the information subsequently discovered is,

(a) favourable to the party’s case, the party may not introduce the information at the trial, except with leave of the trial judge; or

(b) not favourable to the party’s case, the court may make such order as is just. R.R.O. 1990, Reg. 194, r. 31.09 (3) .

[74] When Valentina was examined for discovery she was asked about her knowledge of Elena’s romantic relationships with persons other than Levon during the relevant period. The question was originally refused, but then Valentina provided an answer.

[75] This is the question and answer which were provided:

Q. 950, p. 221 To advise if Elena had any relationship with anybody other than Mr. Khankaldiyan during the period when he was living at the Bowan Court property .Not relevant. Under reserve of this objection we advise that Ms. Avdeeva is not aware of Elena’s relationships with others.

[76] Edward was called by Valentina and gave evidence that from 1997 until sometime in 2000, he was in a romantic relationship with Elena.

[77] Caroline argues that Valentina’s answer violates rr. 31.07 and 31.09 because she provided evidence which contradicts evidence which is now being given by Mr. Hambrachian and Elena and Valentina did not correct her answer.

[78] Valentina’s counsel argues that the question asked of Valentina was not to ask Elena (who is a non-party witness) for her evidence as to whether or not she was in a romantic relationship with someone else during this period. He argues that the question was asked of Valentina and calls for her evidence only.

[79] While Valentina’s counsel’s argument may seem nuanced, other questions asked of Valentina specifically asked her to obtain answers from Elena. For example:

Q. 893, p. 207 To provide the answer from Elena, who paid for the cable, telephone and internet bills from September 2001 to October 2003

Q 898, p. 208 To provide the answer from Elena that if she know, who paid for home insurance on Bowan from 2001 to 2005

Q 1203, p. 275 To advise if Elena knows who was present when the document in tab z of the Affidavit of Documents of the plaintiff drafted

[80] Counsel asked questions which requested Elena’s evidence in a different manner. This is an adversarial process and Valentina’s counsel was entitled to answer the question posed, not the question Caroline’s counsel wishes he had asked.

[81] In my view the evidence sought to be lead from Mr. Hambrachian is not inconsistent with the answer which Valentina gave which was her knowledge. The answer she gave also specifically qualified the answer to be based upon her knowledge. If Caroline’s counsel was dissatisfied, or felt that the question asked was to ask Elena about her evidence on the issue, he could have followed up but he did not.

[82] I add that Valentina had a stroke a few months before her examination for discovery in 2017 and the time period about which counsel asked was up to sometime in 2003, so it was from approximately 15 years ago.

[83] Furthermore, this evidence does not take Caroline by surprise.

[84] The pre-trial report to the trial judge dated January 5, 2023 specifically sets out the fact that Mr. Hambrachian would testify about his relationship with Levon and with Elena. I add that Valentina provided a detailed and fulsome willsay from Edward Hambrachian as well as from Elena, dated January 23, 2023, which sets out the fact that he had a relationship with Elena, and that Levon knew about it.

[85] There is no property in a witness. Caroline was free to contact Mr. Hambrachian and obtain his evidence prior to trial. Caroline has been in possession of Levon’s things since his death and has been able to find various documents and other items in support of her case. There is no reason to think that Levon would have been able to provide anything additional other than his oral testimony to dispute Edward’s and Elena’s evidence that they were in a romantic relationship during this time period; Levon’s evidence in this respect is contained in his examination for discovery which the parties have agreed will be admitted at trial.

[86] I add that Mr. Hambrachian testified that his relationship with Elena ended in or around the year 2000 and there was no evidence given in chief or by way of cross examination that he has had any ongoing relationship with Elena of any sort since that time. Therefore, there is no reason to believe that Edward had any motive to not tell the truth about this romantic relationship with Elena, or what he observed about Elena and Levon’s relationship.

[87] His evidence is relevant, he is an independent witness and I have found no basis to conclude that he has any motive to not tell the truth; therefore, excluding this evidence would only serve to frustrate the ends of justice, not further it.

[88] Even if I concluded that Valentina had not complied with rr. r. 31.07 and r. 31.09(3), I would exercise my discretion pursuant to r. 53.08 to grant Valentina leave to call this evidence.

[89] I see no prejudice, in particular because Valentina provided advance notice of the evidence which was given.

[90] As I have said, the issue of whether this evidence should be excluded because of Caroline’s Browne v. Dunn argument will be determined at a later date after the parties provide their submissions.

Papageorgiou J. Released: February 6, 2023

Footnote

[1] See below for more detailed discussion of the manner in which these documents were disclosed by Caroline in December 2022