Court File and Parties

CITATION: Sellors v. State Farm, 2021 ONSC 1655

DIVISIONAL COURT FILE NO.: 007/20 (Brampton)

DATE: 20210305

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Bradley Sellors, Applicant / Moving Party AND: State Farm Insurance Co., Respondent / Responding Party

BEFORE: D.L. Corbett J.

COUNSEL: Mr Sellors, self-represented Moving Party / Applicant Nadine Nasr, for the Responding Party / Respondent

HEARD by videoconference: March 3, 2020

ENDORSEMENT

[1] Mr Sellors seeks an order compelling State Farm’s deponent to re-attend to complete his cross-examination on his affidavit filed in this application. State Farm opposes on the basis that Mr Sellors terminated his cross-examination without justification and the cross-examination that was conducted was disproportionate, improper and has already been much longer than it should have been.

[2] At the conclusion of the hearing I directed that the cross-examination continue by way of written questions.

[3] These brief reasons explain this disposition.

[4] Cross examinations in Divisional Court are infrequent and generally brief. That is because the issues before this court are decided, for the most part, on the basis of the record before the decision-maker below. Where, as here, the decision under review is quasi-adjudicative, being a decision from an Umpire appointed under the Insurance Act, there are very limited exceptions to the principle that the proper record before this court is the record that was before the Umpire.

[5] Mr Sellors purported to terminate the cross examination after it had been underway for 5.5 hours. I have read the entire transcript and it is clear that the cross examination was conducted as if it was an examination for discovery rather than a cross examination. This prompted numerous objections, which will be the subject-matter of another motion.

[6] In oral argument, Mr Sellors took the position that he is entitled to 7.0 hours for his cross-examination, as provided in the Rules of Civil Procedure, that he may cross-examine on anything raised in the deponent’s affidavit (even if it is irrelevant to the issues on this application), that his cross examination was impeded by numerous improper interjections from counsel, and that technological problems interfered with his cross-examination such that he was justified in adjourning it until those issues could be rectified.

[7] Mr Sellors is self-represented, and allowances must be made for the fact that he is not a lawyer. However, the cross examination was unfocused, excessive and apparently immaterial.

[8] State Farm argued that the so-called technological problems were minor and could easily have been overcome. It also argued that the impact of these problems was exacerbated by Mr Sellors’ unreasonable approach to the cross-examination. Mr Sellors was seeking to put portions of documents to the deponent. He would not allow the witness to control the screen to manipulate the documents so that he could see them. Nor would he identify where the document could be found in the record so that the witness could retrieve a copy of the document in paper or electronic form. I agree that this was unreasonable: the witness was entitled to have a copy of the document on which he was being cross-examined put in front of him, and not just the portion of the document that Mr Sellors wanted him to look at. Further, it may be difficult for the transcript to be of much use since the document was not identified on the record – counsel for the respondent could not protect the record by identifying the document herself because Mr Sellors would not tell her where it was in the record. In my view it was incumbent on both sides to be practical in facilitating the ability of the witness to see the document about which he was being questioned.

[9] On the current record before the court, Mr Sellors filed no materials before the Umpire. He and his representative did not attend the hearing before the Umpire. Mr Sellors telephoned in to the hearing but apparently did not continue to listen to the hearing after being denied permission by the Umpire to record the proceedings. Establishing the record that was before the Umpire should not be complicated, given these circumstances, however Mr Sellors is entitled to explore the facts giving rise to the Umpire proceeding in his absence.

[10] I do not agree with Mr Sellors’ suggestion that the Rules of Civil Procedure provide for a prima facie entitlement to cross examinations of seven hours. The provision to which Mr Sellors refers is Rule 31.05.1(1), which limits examinations for discovery to seven hours. This Rule does not apply to cross examinations and does not establish a prima facie length entitlement in any event: any examination is subject to the bounds of being proper and proportionate.

[11] There is no set time limit, or prima facie time entitlement on a cross examination on an affidavit, in the same way that there is no set time limit or time entitlement to cross examine a witness at trial. There is a presumptive (though not absolute) entitlement to cross examine, but it is limited by principles of materiality and proportionality, assessed in light of the matters in issue.

[12] In an application for judicial review from a tribunal, such as an Umpire, the issues before the court are focused. In this case, where fairness and other procedural issues are raised, the proper scope may go beyond the metes and bounds of the materials placed before the Umpire at the hearing below, but the right must be exercised reasonably and proportionately. In many, perhaps most, applications for judicial review, there is no need for cross examination at all and none are conducted. There is a basis for cross examination in this case, but it could have been exercised appropriately by competent counsel in 90 to 120 minutes. Allowances must be made for self-represented litigants, but on any measure this cross examination was excessive.

[13] I agree with State Farm that the so-called technological impediment to the cross-examination was not overcome because of the applicant’s unreasonable refusal to identify the documents to the deponent so that the deponent could find a copy of it in the papers before him. However, I do not accept the argument that this was some kind of ruse to adjourn the examination to another day. I conclude that the adjournment was based on unreasonable conduct, but not that it was in bad faith.

[14] On balance, I consider that the applicant should have an opportunity to ask questions about areas of cross examination that he has not covered, but that this should not be done by way of a further oral examination. Mr Sellors may complete his cross examination by way of written questions. These questions are not to repeat questions asked already or questions which have already been refused during the oral cross examination. The deponent’s answers to the questions shall be provided under oath, which may be commissioned virtually. This disposition enables Mr Sellors to cover material areas that have not been addressed already, but will prevent a repetition of what happened at the initial attendance.

[15] I am not imposing a deadline for Mr Sellors to provide his written cross examination questions. There is a further motion in this case scheduled in early May, and the parties shall seek further directions from the motions judge to complete the written questions and answers, any motion thereafter respecting refusals, and any other scheduling order that should be made for this case. I am not seized of the motion in May, nor am I precluded from hearing it. I am seized of the refusals motion, as stipulated in my prior endorsement.

D.L. Corbett J.

Date: March 5, 2021