SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: York University, Plaintiff

AND:
Michael Markicevic, Janet Fleming, Mima Veronica Markicevic, Aleeyah Apparel Inc. operating as A-Tech Construction and Design Inc., Aleeyah Inc., AFC Inc. operating as Arsenal Facility Consulting Inc., Toronto Engineering Company, Guga’s International, Canadian & American Concrete Renovation & Drain-Layer Ltd., Roman Ritacca, Luigi Lato, Phil Brown, Riaz Jadavji, Helen Saoulli Georgiou, Vasos Georgiou, George Saoulli, Georgia Saoulli, Guram Sekhniashvili, Gia Sekhniashvili, John Doe #1, John Doe #2, John Doe#3, Jane Doe #1, Jane Doe #2 and Jane Doe #3, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
W. McDowell and B. Kolenda, for the Plaintiff/moving party

B. Shiller, for the Defendant, Michael Markicevic

HEARD: September 20, 2012

REASONS FOR DECISION

I. Motion to exclude a party from an out-of-court cross-examination

[1] The plaintiff, York University, seeks an order excluding the defendant, Michael Markicevic, from the planned cross-examination of Jack McCann, whose affidavit the University has filed in support of a motion which will consider whether a form of Mareva injunction obtained by the University will continue in force. Mr. Markicevic opposes his exclusion. For the reasons set out below, I will not exclude Mr. Markicevic, but I impose terms regarding the conduct of Mr. McCann’s cross-examination.

II. Overview of the dispute

[2] The University’s Campus Services and Business Operations unit deals with the construction, maintenance and operation of its campuses. Until January, 2010, Michael Markicevic was the Assistant Vice-President and Head of CSBO. That month he and the University parted company.

[3] In January, 2012 the University commenced this action making serious allegations of fraud against Mr. Markicevic. I understand that Mr. Markicevic learned of those allegations this past June when the University sought a Mareva -style injunction against him. The motion was on notice and resulted in a consent interim preservation order made by Newbould J. on June 14, 2012.

[4] A hearing is set for October 30, 2012 to consider the continuation of that order and other matters.

[5] In late July Mr. Markicevic, his wife and his daughter filed responding materials. Mr. Markicevic filed a very lengthy affidavit denying the allegations made against him.

[6] Earlier this month the University filed reply materials, which included an affidavit from Mr. Jack McCann, a University carpenter and the former President of CUPE Local 1356. Mr. McCann worked in the unit previously headed by Mr. Markicevic. The University relies on facts asserted in Mr. McCann’s affidavit to support its allegations of fraud against Mr. Markicevic.

III. The proposed cross-examination

[7] Counsel for Mr. Markicevic wishes to cross-examine Mr. McCann on his affidavit. Mr. Markicevic wishes to be present during that cross-examination. The University moves to exclude Mr. Markicevic because of Mr. McCann’s history of depression, what it alleges was a history of “abusive and manipulative treatment” of Mr. McCann at the hands of Mr. Markicevic, and the advice of Mr. McCann’s treating psychiatrist that his cross-examination could be detrimental to his mental state, especially if Mr. Markicevic were to be present.

III. The case law

[8] The law regarding the right of a party to be present during an out-of-court examination in a civil case was described in detail in K.F. (Litigation guardian of) v. White [1] and Roe v. Leone . [2] Let me summarize the applicable principles:

(i) There is an inherent right for parties to an action to be present during the cross-examination or examination for discovery of other parties to, or witnesses in, an action;

(ii) The court has the discretion to exclude parties from attending such cross-examinations or examinations for discovery;

(iii) However, the court does not establish classes of cases which eliminate a party’s inherent right to be present at an examination – “blanket exclusions” do not form part of our procedural law;

(iv) The person seeking to exclude a party from an examination bears the onus, on a balance of probabilities, of showing cause to justify such an exclusion;

(v) Cause depends on the circumstances of the case. Courts have defined cause as a realistic and substantial cause, circumstances that would cause prejudice to the party to be examined, or circumstances that make exclusion necessary to secure the ends of justice; and,

(vi) Demonstrated intimidation by one party towards the other is a justifiable reason to exclude, however a court should guard against assuming intimidation from a set of circumstances. Intimidation must be proven.

IV. Evidence

[9] No evidence was filed on the motion indicating that Mr. Markicevic has acted in an intimidating manner towards Mr. McCann during this litigation.

[10] Mr. McCann did not file an affidavit describing his concerns about the presence of Mr. Markicevic during his cross-examination.

[11] The University relied, in part, on statements made by Mr. McCann in his reply affidavit about his relationship at work with Mr. Markicevic. Mr. McCann deposed that at work Mr. Markicevic had been insulting towards staff, including himself, “either excessively loyal and supportive or extremely abusive and threatening” towards him, and “manipulative and cruel”. Mr. McCann stated that Mr. Markicevic displayed an “aggressive temper, vulgar language and endless threats”, specifically threats to fire him.

[12] The University filed a reply affidavit from Humberto Correia, a University painter, who deposed that he had witnessed incidents where Mr. Markicevic had yelled at Mr. McCann about the quality of certain construction or renovation work. Mr. Correia deposed that on one such occasion he “saw tears in McCann’s eyes”.

[13] The University filed an affidavit on this motion from its counsel’s secretary who recounted a conversation with the University’s in-house counsel in which that counsel described Mr. McCann’s reaction to the prospect of a cross-examination by Mr. Markicevic’s counsel in the presence of Mr. Markicevic – “he immediately expressed horror and showed profound distress and revulsion at the thought of being in the presence of Markicevic.” Quite frankly, I have difficulty assessing evidence from a law firm secretary which recounts a conversation which she had with York’s in-house counsel who, in turn, described her observations when she told Mr. McCann that he would have to testify.

[14] The secretary’s affidavit also attached a September 6, 2012 letter from Dr. Z. Aleksiejuk, a psychiatrist, who has been treating Mr. McCann for depression for some time. She wrote that Mr. McCann’s “mental state got worse over the last few weeks since he met with York University lawyers to discuss the traumatic events from a few years back.” Dr. Aleksiejuk wrote:

In my opinion, dealing with cross-examination (which Mr. McCann reported is now pending) could be detrimental to Mr. McCann’s mental health. I strongly advised the patient against it, especially if the accused was to be present. Mr. McCann has always felt intimidated, manipulated and threatened by the accused.

In his August 22, 2012 affidavit Mr. McCann deposed that he began seeing a psychiatrist in 2006, following a serious car accident, “to cope with ongoing symptoms of depression and anxiety”.

[15] Mr. Markicevic filed an affidavit on this motion denying that he was a violent person or had ever inflicted acts of emotional cruelty or physical trauma upon Mr. McCann. Mr. Markicevic deposed that Mr. McCann had paid several visits to his home following his departure from the University in January, 2010.

[16] Mr. Markicevic wants to be present at the cross-examination so that he can assist his counsel in light of the detailed allegations made against him in Mr. McCann’s affidavit. He deposed:

I have full respect for the legal process and I can assure the court that I am not going to talk to McCann during the cross-examination or do anything at all to obstruct his testimony or intimidate him.

V. Analysis

[17] In my view the evidence does not support a finding that realistic and substantial cause exists to exclude Mr. Markicevic from the cross-examination of Mr. McCann. There is no evidence of any prior assault or attempted assault against Mr. McCann. The University characterized the workplace conduct of Mr. Markicevic towards Mr. McCann as intimidating and threatening; defence counsel placed it more in the category of a heavy management style. I cannot resolve that dispute on affidavit evidence.

[18] I have no doubt that Mr. McCann is anxious about his pending cross-examination. Evidently he has suffered from anxiety and depression since the time of his 2006 car accident. I have no doubt that his involvement in this litigation has only increased his level of anxiety; that is perfectly natural and understandable. But, this is a case about money, and whether or not it was properly used and accounted for. It is not a case involving a past physical altercation between the party and the affiant, nor is it a matrimonial case, two types of cases in which the particular circumstances occasionally have resulted in an exclusion order.

[19] Mr. McCann’s psychiatrist expressed concern about the effect of a cross-examination in the presence of Mr. Markicevic on her patient’s mental state because Mr. McCann had always felt “intimidated, manipulated and threatened” by Mr. Markicevic. That evidence does not rise to the level of justifying the exclusion of Mr. Markicevic.

[20] That said, in order to forestall any further dispute over the circumstances surrounding the planned cross-examination of Mr. McCann, and without pre-judging in any way how any person might act during that cross-examination, case management prudence dictates that I should impose some terms on the cross-examination in order to ensure that it proceeds smoothly and to provide reasonable comfort to the witness that the out-of-court examination will take place in an environment equivalent to that which would occur under the watchful eyes of a presiding judge.

[21] Accordingly, I dismiss the motion by the University to exclude Mr. Markicevic from the cross-examination of Mr. McCann, but I direct the University to arrange that one or two video-cameras are present during the cross-examination so that the conduct and demeanour of both Mr. McCann and Mr. Markicevic will be recorded during the cross-examination. If any dispute arises about what transpired on the cross-examination, the video recordings will be available for the judge to view at the October 30, 2012 hearing.

[22] In the first instance York shall bear the costs of the video-tapping. I leave the issue of the costs of this motion and the ultimate costs of the video-tapping to the judge hearing the motion on October 30, 2012.

_______ (original signed by) __________

D. M. Brown J.

Date : September 20, 2012

[1] [2000] O.J. No. 922 (S.C.J.)

[2] 2009 26359 (ON SC) .