Court File and Parties
CITATION: Colistro v. TBAYTel and the City of Thunder Bay, 2013 ONSC 7506
COURT FILE NO.: DC-13-004
DATE: 2013-Dec-05
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
Taliano, Whalen, Sproat, JJ.
B E T W E E N:
LINDA COLISTRO
Michael Cupello, Counsel for the Respondent
Respondent
- and -
TBAYTEL and CITY OF THUNDER BAY
G. Lorne Firman and Derek Zulianello, Counsel for the Appellants (TbayTel)
William Babcock and Sarah Manilla, Counsel for the Appellants (City of Thunder Bay)
Appellants
HEARD: December 04, 2013
Endorsement
[1] The Appellants appeal the order of McCartney J. granting leave to the Respondent/ Plaintiff to examine Peter Diedrich (“the witness”) on oath or affirmation before trial for the purpose of having Mr. Diedrich’s testimony available to be tendered as evidence at trial. The order was made pursuant to Rule 36.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] The factors giving rise to the decision include the following: the witness had information which was crucial to the Plaintiff’s case; the witness was out of the jurisdiction and was believed to be in Australia; the witness had a disdain for all counsel involved in the case and for the judicial process; no information was available as to when or if the witness would make himself available to give evidence at trial; the witness had indicated that he would only participate in the proceeding if he was formally compelled to do so, and; the witness had been, but was no longer, a party to the proceeding which may account for his hostility.
[3] McCartney J. granted the request, but he ordered that the examination be videotaped. He denied any further conditions on the grounds that Rule 36.02 sets out the procedure to be followed for such an examination. That being the case, there was no reason for the court to become further involved “unless difficulties arose”.
[4] We agree with the motions court judge that the circumstances of the case satisfied the provisions of Rule 36.01(2) with one qualification.
[5] Counsel for the Appellants submitted that since the witness has shown himself to be hostile to all counsel and to the judicial process, problems could be expected to occur during his examination which may require judicial rulings.
[6] Counsel further submitted that issues may arise with respect to solicitor-client privilege, for which rulings may also be required.
[7] During the course of the appeal, all counsel agreed that should the examination proceed, it would be ideal to conduct the examination in the presence of a judge, and preferably the trial judge, because it is unlikely the witness would wait for rulings and return for a continuation of the examination on another date. All counsel expect that this will be a “one hit affair”.
[8] The need and benefit of having a judge available to preside over the examination was discussed by counsel for the first time today but had received little if any attention during the hearing before the motions court judge.
[9] This court acknowledges the need for such an order and accordingly we allow the appeal in part, by requiring that a judge (preferably the trial judge) be present (or in the judge’s discretion, available) during the examination to resolve any objections or other issues that may arise.
[10] We cannot over emphasize the importance of appointing a trial judge for this somewhat unusual case at the earliest possible date to ensure not only that justice is done but that it is done efficiently and with dispatch.
[11] With respect to costs, the emphasis of the Appellants’ submissions was for the court to reverse the order permitting the examination. Since the Respondent was successful in upholding the order, and in view of the fact that costs of $6000 were assessed against her in the leave to appeal application before McCartney J., in accordance with the proportionality principle, we award her partial indemnity costs in accordance with the bill submitted by her counsel in the sum of $11,387.58 inclusive and payable forthwith.
Justice Taliano
Justice Whalen
Justice Sproat
Released: 05 December 2013
/ket
CITATION: Colistro v. TbayTel and the City of Thunder Bay, 2013 ONSC 7506
COURT FILE NO.: DC-13-004-00
DATE: 2013-Dec-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LINDA COLISTRO
Respondent
- and –
TBAYTEL and CITY OF THUNDER BAY
Appellants
ENDORSEMENT
Taliano, Whalen, Sproat, JJ.