Court File and Parties

COURT FILE NO.: CV-22-00001338-0000 DATE: 2024 03 18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PATRICIA SEWCHAND and RANDY BUNGAY, Plaintiffs AND: ELIZABETH HURRY-GORIAH, MAHENDRA LALL HURRY, CARLTON GORIAH, and BIBI GORIAH, Defendants

BEFORE: Justice Wilkinson

COUNSEL: C. McGoogan, for the Plaintiffs T. Lockhart, for the Defendants

HEARD: January 23, 2024, via videoconference

Endorsement

[1] The Defendants move to allow the admission of an affidavit of Bibi Goriah sworn October 6, 2023, to form part of the record to be considered at the summary judgment motion in this matter. This affidavit was prepared and served after cross-examination of the Plaintiff, Patricia Sewchand, had taken place. The Defendants also seek to have a timetable set for the examination of Bibi Goriah. The summary judgment motion originally scheduled for November 2023 has been adjourned pending the outcome of this motion.

[2] For the reasons that follow, the October 6, 2023 affidavit of Bibi Goriah shall be admitted as evidence to be considered at the summary judgment motion for this matter.

Background

[3] This case involves a dispute as to the ownership of a home located at 121 Herdwick Street in Brampton, Ontario (“the property”). The Plaintiffs take the position that the payments they have made while residing in the property are payments of equity, and that they hold a constructive trust over the property. The Defendants take the position that the Plaintiffs have made rental payments to allow them to live at the property, and that they cannot now assert any proprietary claims over the property.

[4] The Plaintiff, Patricia Sewchand (“Patricia”) is the wife of the Plaintiff, Randy Bungay (“Randy”). The Defendants, Bibi Goriah (“Bibi”) and Carlton Goriah (“Carlton”), are the parents of Patricia and the Defendant, Elizabeth Hurry-Goriah (“Elizabeth”). The Defendant, Mahendra Lall Hurry (“Mahendra”), is the husband of Elizabeth.

[5] There is no dispute regarding the following facts:

i) Elizabeth and Mahendra live with Bibi and Carlton Goriah; ii) Patricia and Randy lost their home through a power of sale, and commenced living with all four Defendants; iii) Patricia and Randy were unable to secure financing for a home on their own; iv) The four Defendants signed an agreement of purchase and sale to permit Patricia and Randy and their children to live in their own home. All four Defendants are on title to the property; v) The Plaintiffs did not contribute to a down payment or closing costs; vi) There is no written rental agreement; vii) Patricia and Randy have been living in the home since 2006. Their current monthly payments for use of the home are $1,300 per month; viii) The Plaintiffs have made renovations to the home at their own expense; ix) The Defendants have regularly paid the property taxes except for a period of approximately 1 ½ years in 2020, when the Plaintiffs paid the taxes; and x) The credibility of the parties is a central issue in the dispute between the parties.

[6] The key disagreement between the parties relates to the intention behind the Defendants’ purchase of the property. The Defendants claim that they purchased the property as an investment property. The Plaintiffs claim that the property was purchased for them, and that they were always promised eventual entitlement to the property.

History of the Litigation

[7] On May 11, 2022, the Plaintiffs issued the Statement of Claim seeking a declaration that the Defendants have been unjustly enriched by the payments made by the Plaintiffs, and that they hold a constructive trust in the property. In the alternative, the Plaintiffs seek $1,000,000 in damages.

[8] The Defendants brought a motion for summary judgment. The affidavit from Patricia addressing the matters in issue was served on the Defendants nine days before the cross-examination of Elizabeth was scheduled to take place.

[9] The following day, eight days before the cross-examination of Elizabeth, counsel for the Defendants sent an email to counsel for the Plaintiffs asking to cross-examine Patricia. The email did not mention serving additional affidavits on the Plaintiffs.

[10] Cross-examinations of the Defendant, Elizabeth, and the Plaintiff, Patricia, took place on August 31, 2023.

The Position of the Defendants

[11] The Defendants take the position that an affidavit from Bibi is required to respond to statements in Patricia’s affidavit and oral evidence given at her cross-examination, regarding conversations that she says she had with Bibi and/or Bibi and Carlton about Patricia’s constructive trust in the property. They claim that Patricia’s affidavit and oral evidence is inconsistent with her allegations in the Statement of Claim, and with the evidence that she gave at her discovery.

[12] The Defendants further submit that given their view that Patricia has given inconsistent evidence, it was reasonable to wait to hear her evidence at cross-examination before determining if an affidavit from Bibi was required.

[13] The Defendants take the position that Patricia’s entire case for a constructive trust in the property rests on her discussions with Bibi, and that Bibi’s affidavit evidence is required to provide her version of these conversations to be considered at the hearing of the summary judgment motion. They argue that this evidence is critical and relevant for the determination of the issue.

[14] The Defendants further argue that there is no prejudice to the Plaintiffs if the motion for summary judgment is adjourned to permit a cross-examination of Bibi, as they will be permitted to continue living in the property at the current rate of $1,300 per month. Elizabeth states in her affidavit that the monthly payments provided by the Plaintiffs have never been sufficient to cover the costs of the monthly mortgage payments.

[15] The Defendants further note that they have offered to allow the Plaintiffs to file an affidavit in reply should they wish to do so, and that they will permit a second cross-examination by the Plaintiffs of Elizabeth, who is the only other affiant in support of the summary judgment motion, regarding any matters raised by Bibi in her affidavit that were not addressed in Elizabeth’s first cross-examination.

[16] The Defendants submit that these further anticipated cross-examinations are a matter of costs only, and that it is unlikely that the court will grant judgment in favour of a constructive trust without hearing the evidence of Bibi regarding this central issue in the litigation. They state that if the matter is referred to trial, Bibi’s evidence regarding these issues will be included in the evidence at trial, suggesting that it is efficient, and a better use of judicial resources, to have this evidence before the court at the hearing of the summary judgment motion.

[17] The Defendants also offer an alternate argument. They acknowledge that the supplementary affidavit from Bibi could have been served and filed prior to the examinations, and that it was an oversight by counsel that this was not done. At the hearing of the motion, counsel for the Defendants informed the court that one of his law partners unexpectedly died just prior to cross-examinations being conducted. He indicates that in retrospect, he overlooked the need for an affidavit from Bibi, which he attributes to his mental state following the death of his partner. Counsel asks that the court not penalize his clients for his oversight in not serving the affidavit of Bibi prior to the cross-examinations being conducted.

[18] The Defendants argue that a consideration of the criteria for admitting the supplementary affidavit under Rule 39 weighs in favour of granting leave to admit the affidavit into evidence for the summary judgment motion. They argue that refusing to grant leave to admit the affidavit is a technical, but impractical approach to the litigation, and that granting leave will lead to the most just and timely resolution of the dispute.

The Position of the Plaintiffs

[19] The Plaintiffs submit that permitting the Defendants to now file an affidavit with evidence that directly contradicts the evidence of Patricia after Patricia’s cross-examination has been conducted violates the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), as the Defendants intend to use the affidavit of Bibi to impeach Patricia’s credibility. The Plaintiffs therefore argue that admitting Bibi’s affidavit into evidence is highly prejudicial to the Plaintiffs, in a way that cannot be compensated for by costs.

[20] The Plaintiffs argue that up until the delivery of Bibi’s affidavit in October of 2023, the Defendants had not denied that promises had been made to Patricia regarding the future ownership of the house. In support of this point, the Plaintiffs refer to the Statement of Defence, which does not plead that the promises were never made, but rather, pleads that the discussions between the parties were contractual negotiations where there was no meeting of the minds, or alternatively, that the discussions were mere promises and unenforceable.

[21] The Plaintiffs also argue that as they have already conducted cross-examinations, they will be prevented from filing any further evidence responding to the Defendants' new evidence without leave, and would thus be obliged to meet the evidential burden to file further evidence to be permitted to respond to the new affidavit from Bibi.

[22] The Plaintiffs dispute that there is an inconsistency between the allegations in the Statement of Claim, and the affidavit and oral evidence of Patricia.

[23] The Plaintiffs submit that the Defendants chose to lie in wait while gathering as much evidence from Patricia as they could before revealing their contradictory evidence, including extensive questioning of Patricia regarding the promise she claims was made by Bibi. The Plaintiffs argue that having made that strategic decision, the Defendants should now be obliged to live with the consequences of it, and should not be now permitted to file an affidavit from Bibi. They further argue that the Defendants have now obtained a strategic advantage by preparing an affidavit after transcripts of the cross-examinations have already been obtained.

[24] The Plaintiffs also submit that if the Defendants are granted leave to file Bibi’s affidavit, the Plaintiffs ought to be permitted to:

i) file any further evidence they wish to respond to the Defendants' new evidence; ii) conduct a further cross-examination of Elizabeth; and iii) cross-examine Bibi.

[25] The Plaintiffs also submit that if leave is granted to file the affidavit of Bibi, the Defendants should not be permitted to file any further evidence with respect to this motion.

The Law

[26] Rule 39.02(2) of the Rules of Civil Procedure states:

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 or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

[27] The legal test for admission under Rule 39.02(2) is set out in First Capital Realty Inc. v. Centrecorp Management Services Ltd. (2009), 258 O.A.C. 76 (Div. Ct.), at para. 13:

1. Is the evidence relevant?
2. Does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time?
3. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?
4. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

[28] All four criteria should be weighed evenly when considering the facts of each case in determining whether it is appropriate to grant leave (First Capital Realty Inc., at para. 24).

[29] The test for admission should be applied in a flexible, contextual manner to ensure a just, timely resolution of the dispute with regards to Rule 1.04 of the Rules of Civil Procedure. An overly rigid interpretation can lead to unfairness by punishing a litigant for the oversight of counsel (First Capital Realty Inc., at para. 14).

[30] Leave under Rule 39.02(2) should be granted sparingly (Shah v. LG Chem, Ltd., 2015 ONSC 776, 124 O.R. (3d) 570, at para. 23).

[31] The preference for adjudicating disputes on a full and complete record with all relevant evidence before the Court is a significant consideration in assessing whether to exercise a discretion to admit new affidavits (Drew v. Drew, 2023 ONSC 2612, at para. 15).

[32] In Browne v. Dunn (1893), 6 R. 67 (H.L.), Lord Chancellor Herschell explained that a party seeking to impeach the credibility of a witness must put the contradictory evidence to the witness in order to provide an opportunity for the witness to respond and explain the contradiction. Rule 39.02(2) is consistent with the rule in Browne v. Dunn, as it requires that all evidence upon which a party intends to rely be delivered before cross-examinations are conducted. In this manner, the witness is given a fair opportunity to respond to any evidence which contradicts their evidence and might be used to impeach their credibility.

Analysis

[33] I note the mandatory language in Rule 39.02(2) that the court “shall” grant leave if it is satisfied that a party ought to be able to respond to any matter raised in the cross-examination, on such terms as are just.

[34] The law is clear that there is a four-part test to determine if additional evidence may be permitted to be filed after cross-examinations have been conducted, pursuant to Rule 39.02(2). I will deal with each aspect of the test in turn.

Is the evidence relevant?

[35] Both parties agree that credibility is a central factor in this case. Patricia and Bibi clearly have different versions as to the conversations that took place between them, which is central to the issue in dispute between the parties. I have no difficulty in finding that the affidavit evidence from Bibi is relevant to the summary judgment motion.

Does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time?

[36] Patricia was questioned extensively both at her discovery, and at her cross-examination regarding her conversations with Bibi pertaining to the eventual ownership of the property. The evidence from Bibi responds to matters addressed during Patricia’s cross-examination. There is a dispute between the parties as to whether Patricia’s affidavit and cross-examination brought forward new evidence regarding the issues in dispute. As this branch of the test does not require the evidence at the cross-examination to be raised for the first time, I make no finding as to whether Patricia’s evidence changed between her discovery and her cross-examination.

Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?

[37] This element of the test goes to the heart of the concerns raised by the Plaintiffs if Bibi’s affidavit is permitted into evidence. I acknowledge that the Defendants appear to be advancing arguments and evidence that may not have been previously advanced in the case, that is, evidence from Bibi that she never made a promise to transfer ownership of the house to Patricia. However, I am not satisfied that the decision of the Defendants to arguably follow a different strategy in their defence violates the rule in Browne v. Dunn.

[38] Patricia was asked questions under oath at her discovery and at her cross-examination about her conversations with Bibi pertaining to the transfer of ownership of the house. This is not a situation where the Defendants are seeking to introduce new evidence of prior or inconsistent statements made by Patricia without giving her an opportunity to explain the statements. This situation involves the Defendants responding to a Statement of Claim, where they are now providing evidence as part of their defence that was not previously provided.

[39] Best practices and the Rules dictate that Bibi’s affidavit ought to have been served in advance of Patricia’s discovery. However, I am not satisfied that allowing Bibi’s affidavit into evidence now will prejudice the Plaintiffs in a manner that cannot be compensated for with costs. Patricia gave her evidence regarding her recollections of the content of her conversations with Bibi. Bibi apparently has a different recollection. This is a credibility matter for the trier of fact to determine. I understand the Plaintiffs’ concern that this credibility dispute may make the issues in dispute difficult to resolve on a summary judgment motion. But this concern is not a sufficient reason to preclude the Defendants from presenting relevant evidence at the summary judgment motion.

[40] The Defendants have offered the Plaintiffs the opportunity to cross-examine Bibi, to further cross-examine Elizabeth, and to file reply evidence if required to respond to the evidence of Bibi. I am satisfied that these procedural accommodations permit the Plaintiffs an adequate opportunity to respond to this new evidence from the Defendants in a manner that will not cause them procedural prejudice.

Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

[41] The Defendants state that their reason for not serving Bibi’s affidavit earlier was that they wanted Patricia to confirm her evidence under oath before going to the expense of obtaining an affidavit from Bibi. I do not accept this as a legitimate reason to delay serving Bibi’s affidavit on the Plaintiffs. This case is factually different from the cases where the parties waited to have the evidence of the opposing party confirmed before going to the expense of obtaining an expert report, for example. The affidavit from Bibi is less than five pages long. It likely did not create substantial additional expense for the Defendants to have it prepared.

[42] During oral argument, counsel for the Defendants also advised that just prior to the cross-examinations, his law partner died suddenly. Upon reflection, he acknowledges that the better course of action would have been to adjourn the cross-examinations so that he could have proceeded with them in a calmer frame of mind. There is no affidavit evidence from counsel for the Defendants as to the manner in which his response to his partner’s death might have impacted his analysis of the Defendants’ evidence prior to the cross-examinations being conducted. However, I accept his candid admission during submissions that in retrospect, he ought to have adjourned the cross-examinations.

[43] I acknowledge that leave under Rule 39.02(2) should be granted sparingly. At the same time, I also acknowledge the objective of Rule 1.04, which is to apply the Rules in a flexible, contextual manner to ensure a just, timely resolution of the dispute. To deny the Defendants’ request to admit the affidavit of Bibi punishes them for an oversight on the part of their counsel.

[44] I also find that the evidence of Bibi on this central issue will be very helpful for the judge hearing the summary judgment motion to consider. As was found in Drew, the Court’s preference to adjudicate disputes on a full and complete record with all relevant evidence before the Court is a significant consideration in exercising my discretion to permit Bibi’s affidavit into evidence.

Conclusion

[45] The Defendants are permitted to file the affidavit of Bibi Goriah. I am not satisfied that allowing Bibi’s affidavit into evidence after cross-examinations have been conducted causes prejudice to the Plaintiffs that cannot be addressed through costs.

[46] I make the following Orders:

1. The Defendants are permitted to file the affidavit of Bibi Goriah dated October 6, 2023 in evidence for the summary judgment motion;
2. The Plaintiffs are permitted to cross-examine Bibi Goriah on her affidavit;
3. The Plaintiffs are permitted to further cross-examine Elizabeth Hurray-Goriah with respect to the contents of Bibi’s affidavit;
4. The Plaintiffs are permitted to file reply evidence with respect to the evidence contained in the affidavit of Bibi Goriah. All affidavits must be served and filed before any further cross-examinations are conducted. The Plaintiffs are not limited in the number of affidavits they seek to file.
5. Cross-examinations may also address affidavit evidence filed with respect to the motion.
6. If the parties are unable to agree upon a schedule for cross-examinations and the Plaintiffs’ delivery of additional motion materials, the parties may contact the trial office to obtain a date to attend at long motions triage court.

[47] The Plaintiffs’ materials also seek a ruling that the Defendants not be permitted to file any additional affidavit materials with respect to this motion. I decline to make this order at this time, as it is unknown what additional affidavit materials may be filed by the Plaintiffs in response to the affidavit of Bibi Goriah. However, should the Defendants wish to file additional affidavit evidence they will once again be required to seek leave to do so pursuant to Rule 39.02(2), and they will have to explain to the motions judge why any additional requests for additional affidavit evidence did not form part of the motion before me.

Costs

[48] Although the Defendants were successful in their motion, I decline to award them costs for this motion. The Plaintiffs raised legitimate issues and concerns regarding the Defendants’ failure to serve Bibi’s affidavit prior to the cross-examination of Patricia. The relief granted was discretionary. It was appropriate for this matter to proceed to a motion.

Wilkinson J. Released: March 18, 2024