COURT FILE NO.: 08-CV-40618
DATE: 2012/04/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARAH BESNER, HAILEY BESNER and JOHN BESNER (by His Litigation Guardian SARAH BESNER)
Appellants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ONTARIO PROVINCIAL POLICE, DETECTIVE CONSTABLE GEORGE TYO, DETECTIVE CONSTABLE GASTON THIBODEAU, and OFFICER CHARLENE DAVIDSON
Respondents
Lawrence Greenspon, for the Appellants
Jim Smith, for the Respondents
HEARD: March 1, 2012 (Ottawa)
REASONS FOR DECISION ON APPEAL
Kershman J.
[1] The Appellants (the Plaintiffs) appeal a decision of Master Roger dated March 19, 2011, which dismissed their Motion to exclude the Respondent police officers (the Defendants) from being present during the examinations for discovery of the other police officers at least until after they have been examined.
Jurisdictional Issue
[2] Prior to the hearing of the motion, the Respondents raised a jurisdictional issue as to whether the matter could be heard by a Superior Court Judge or Divisional Court. At the hearing, the Court was advised that jurisdiction was no longer an issue and the motion proceeded.
Issue
What is the Standard of Review in Relation to the Appeal of a Decision of the Master?
Appellants’ Position
[3] The Appellants argue that Master Roger erred in law by failing to apply all of the requisite factors to be considered in determining whether the Respondent police officers should be excluded from the examinations for discovery.
[4] The Appellants rely on the case of R. v. Tomlinson, [2007] O.J. No. 4743 (S.C.) at para. 10 wherein Archibald J. states that the basis for the discretion of the exclusion order is three‑fold:
10 In both civil and criminal trials, a trial judge has the discretion to order the exclusion of witnesses. Some of the underlying reasons why a judge may order the exclusion of witnesses are as follows:
One purpose is to ensure that a witness' testimony is not influenced by hearing the evidence of another witness and, accordingly, changing his or her evidence to conform to it.
A second reason to exclude witnesses from being present in the courtroom during the hearing of other evidence arises from the possibility that a witness may anticipate in advance questions to be posed of that witness thereby reducing the effectiveness of cross-examination.
A third reason given is the potential danger of witnesses colluding with each other to tailor their testimony. See John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at p. 902.
[5] The Appellants argue that Master Roger should have given equal weight to the following four factors:
(1) the common interest, common counsel, joint investigation and the potential for tailoring of evidence since the Defendants would be able to listen to each other’s testimony;
(2) the prejudice to the Plaintiffs and the lack of prejudice to the Defendants;
(3) that this would be the only opportunity that the defendant officers would have to sit out the testimony; and
(4) the credibility of the parties.
[6] The Appellants argue that the Master only gave real weight to the issue of credibility.
Respondents’ Position
[7] The Respondents argue that the standard of review in an appeal in relation to the decision of a Master is set out in the case of Fresco v. Canadian Imperial Bank of Commerce (2010), 2010 ONSC 4724, 103 O.R. (3d) 659 (Div. Ct.) (“Fresco”) by Swinton J. at para. 36.
[36] On appeal, the standard of review on a question of law is correctness. The standard of review for findings of fact is palpable and overriding error, while questions of mixed fact and law are on a spectrum. If a legal question can be separated out, it will be reviewed on a standard of correctness. Otherwise, questions of mixed fact and law will not be overturned absent palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, at paras. 8, 10 and 36-37).
[8] The Respondents argue that this is a mixed question of fact and law and as such, the standard that the Appellants have to demonstrate is that there was a palpable and overriding error committed by the Master failing which, the appeal should be dismissed.
Analysis
[9] Master Roger at para. 7 of his Decision sets out in detail the factors that the Plaintiffs were relying on.
[10] Thereafter, he set out the position of the Respondents with respect to those factors.
[11] Lastly, he went through a lengthy analysis of the onus to exclude, which varied from a light one to a heavier one, and then went on to deal with the issue of credibility.
[12] The question in this case is one of mixed fact and law. Based on the Fresco, decision, the Court agrees that in order to overturn a mixed question of fact and law, the Master must have made a palpable and overriding error.
[13] This Court agrees with the Respondents’ counsel that the Master thoroughly reviewed the applicable law in his decision.
[14] Furthermore, this Court is of the view that Master Roger considered the evidence at the motion which consisted of a single Affidavit sworn by an articling student in the Appellants’ counsel’s law office. The Affidavit sets out in detail the efforts made to arrange the examination for discovery of the Respondents and what occurred when counsel attended at the examination for discovery, i.e. that the discoveries were not held because the Respondents wanted to be present throughout the discoveries.
[15] The Affidavit did not make any reference as to why the Respondents should be excluded, notwithstanding that the Appellants had sufficient materials available to them to set out why the Respondents should have been excluded. Appellants’ counsel were the same at both the criminal proceedings and at these proceedings. The criminal proceedings were very extensive and included 1400 pages of police notes, six days of cross‑examinations of the defendant police officers and the relevant transcripts of those examinations.
[16] Notwithstanding the aforesaid, the articling student’s Affidavit materials contained no references as to why the Respondents should be excluded.
[17] Based on the aforesaid, this Court finds that the Master made no palpable or overriding error.
[18] Accordingly, the appeal is dismissed.
Costs
[19] Each party has submitted a Bill of Costs. As the Respondents were successful on the motion, they should be entitled to their costs. The Court sees no reason why the costs should be anything other than partial indemnity costs. Taking into account the factors set out in Rule 57.01(1) of the Rules of Civil Procedure and in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), this Court fixes the Defendants’ costs at $4,500 inclusive of disbursements and HST. These costs are to be paid within 60 days from the date hereof. In the event that the aforesaid costs are not paid, the Appellants shall not be able to take any fresh step in the action until such time as the costs are paid.
[20] Order accordingly.
Mr. Justice Stanley J. Kershman
Released: April 12, 2012
COURT FILE NO.: 08-CV-40618
DATE: 2012/04/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARAH BESNER, HAILEY BESNER and
JOHN BESNER (by His Litigation Guardian SARAH BESNER)
Appellants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ONTARIO PROVINCIAL POLICE, DETECTIVE CONSTABLE GEORGE TYO, DETECTIVE CONSTABLE GASTON THIBODEAU, and OFFICER CHARLENE DAVIDSON
Respondents
REASONS FOR DECISION ON APPEAL
Mr. Justice Stanley J. Kershman
Released: April 12, 2012