SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-CV-369735
MOTION HEARD: April 4, 2012

RE: Albert J. Latner

v.

Elise Latner-Assaraf

BEFORE: Master Thomas Hawkins

COUNSEL:
Orestes Pasparakis
for moving defendant
Fax No.: 416-216-3930

Ronald B. Moldaver Q.C.
for responding plaintiff
Fax No.: 416-869-0369

REASONS FOR DECISION

[ 1 ] This is a motion by the defendant in part for an order under subrule 34.15(1) that the plaintiff answer undertakings given and questions refused on his examinations for discovery held on June 18, 2010.

[ 2 ] On the case of questions refused on the ground of lack of relevance, I have applied the relevance to a matter in issue test laid down in subrule 31.06 (1).

[ 3 ] The undertakings portion of this motion has been resolved.

[ 4 ] Questions 68 and 69 were argued first. These questions were answered at questions 70, 71, and 72: the witness can’t recall.

[ 5 ] Question 73 is about possibilities. In my view such a question is not relevant and need not be answered. At question 72 the witness testified that he could not recall if he purchased those coins in Toronto.

[ 6 ] Question 553, like question 73, is about possibilities. It need not be answered for the same reason as question 73.

[ 7 ] Question 647 is not relevant to any matter in issue in this action and need not be answered. There is nothing in the pleadings about assets other than coins.

[ 8 ] Question 502 is proper as relevant to the central issue of ownership of the coins in the Miami, Florida safety deposit box. It is different from previous questions beginning at question 498 because it is about a supposed event in Israel. Question 502 should be answered.

[ 9 ] Defence counsel is withdrawing this motion in respect of questions 448 and 449. He concedes my ruling on question 647 applies to these questions.

[ 10 ] Question 635 was argued next. The point of the question is not clear from the transcript. I am therefore unable to say whether question 635 is or is not proper.

[ 11 ] Question 670 (page 197 lines 4 to 8) is not relevant and need not be answered. The affidavit which counsel sought to put to the witness was sworn in another action, not this one. The affidavit makes no reference whatsoever to the coins that are the subject matter of this action or to the letters referred to in paragraphs 10 and 11 of the statement of claim.

[ 12 ] Defence counsel concedes my ruling on question 670 applies to questions 187 and 190.

[ 13 ] Defence counsel has withdrawn this motion in respect of questions 35, 38, 44, 55, 57, 58, 63, 628, 728, in light of my rulings.

[ 14 ] I then dealt with that part of the defendant’s motion seeking directions under rule 34.14 respecting the conduct of plaintiff’s counsel at the plaintiff’s examination for discovery on June 18, 2010.

[ 15 ] Rule 34.14 provides as follows.

34.14 (1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limiting its scope, where,

(a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections;

(b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined;

(c) many of the answers to the questions are evasive, unresponsive or unduly lengthy; or

(d) there has been a neglect or improper refusal to produce a relevant document on the examination.

Sanctions for Improper Conduct or Adjournment

(2) Where the court finds that,

(a) a person’s improper conduct necessitated a motion under subrule (1); or

(b) a person improperly adjourned an examination under subrule (1), the court may order the person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the examination and the court may fix the costs and make such other order as is just.

[ 16 ] In the present motion defence counsel submits that his examination for discovery of the plaintiff was interfered with by an excessive number of improper interruptions or objections from plaintiff’s counsel.

[ 17 ] In Madonis v. Dezetti, 2010 ONSC 2180 Dash M. laid down a number of principles which counsel defending an examination for discovery should follow. Dash M. said (at paragraph 16) that these principles include the following:

(a) not to interrupt the examining lawyer unnecessarily;

(b) when clarifying an unclear or ambiguous question, to do so in a manner that does not provide a cue to the party being examined on how to answer the question;

(c) not to answer on behalf of the client if the examining lawyer has clearly objected to such assistance to the client;

(d) not to correct answers given by the examined party; and

(e) not to communicate with his client during the course of the examination in a manner that interferes with the flow of the examination or that suggests how the client should answer a question.

[ 18 ] Defence counsel drew to my attention repeated examples of plaintiff’s counsel infringing several of these principles, particularly the principles set out in clauses (a), (b) and (c).

[ 19 ] Subrule 34.14(1) contemplates in part examining counsel adjourning an examination before its conclusion or the purpose of moving for directions from the court. That did not happen here. Examining counsel completed his examination of the plaintiff subject to undertakings and refused questions.

[ 20 ] The undertakings part of this motion was resolved. There were few of them. Of the refused questions I ordered that only one of them be answered. The practical result of all this is that the resumed examination of the plaintiff should not last very long. Nevertheless I direct plaintiff’s counsel to conduct himself on the resumed examination of the plaintiff in a manner consistent with the principles which Dash M. laid down in Madonis.

[ 21 ] Success on this motion was divided. Nevertheless, I do not wish to be seen as rewarding in any way the conduct of plaintiff’s counsel on June 18, 2010 of which defence counsel complains. I fix the costs of this motion at $1,000 and order the plaintiff to pay such costs to the defendant within 30 days.

Master Thomas Hawkins

DATE: May 16, 2012