SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-395664
DATE: 20120928

RE: Attorney General of Ontario, Plaintiff

AND:

Condominium Units 1210 and 1310 at 8 Scollard Street, Toronto; Contents of Various Bank Accounts, Safety Deposit Boxes et al ; TD Canada Trust et al . and Royal Bank of Canada et al, in rem ; Jack Singer, Roslyn Singer, Jason Singer, Brent Steinberg, Stephen Riley, Patrick Demattos, Corinna Chahor and John Curnew; Stay in Plane Renovations Inc., 1679615 Ontario Limited, 1460376 Ontario Inc. and 1246428 Ontario Inc., inter alia ., Defendants

BEFORE: Carole J. Brown J.

COUNSEL:
Sandra Nishikawa ; Sandra Di Ciano , for the Plaintiff

Jack Singer; Roslyn Singer; Jason Singer, self-represented

HEARD: September 27, 2012

ENDORSEMENT

[ 1 ] The defendants, Roslyn Singer and Jason Singer, move to have themselves exempted from examinations for discovery for medical reasons.

[ 2 ] Pursuant to the Rules of Civil Procedure, 31.03 (1) "a party to an action may examine for discovery any other party adverse in interest…" and, pursuant to Rule 31.03 (2), on behalf of a corporation, "the examining party may examine any officer, director or employee on behalf of the corporation…". Pursuant to Rule 31.03 (5), "where an action is brought by or against a party under disability, the litigation guardian may be examined in place of the person under disability or, at the option of the examining party, the person under disability may be examined if he or she is competent to give evidence…"). In this case, there is no litigation guardian for either Jason or Roslyn Singer and no evidence to indicate that either of these defendants is incompetent to give evidence. Pursuant to the Rules, the court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time: Rule 2.03

[ 3 ] Pursuant to the Rules, the AG has a prima facie right to examine all parties adverse in interest, which would include both Roslyn Singer and Jason Singer. The AG, as a party to a proceeding, is entitled to "the fullest and most complete discovery possible" in order to know the case to be met at trial and also to make and consider pretrial settlement proposals: McGowan et al v Haslehurst , [1977] O.J. No 2418 (H. C.) ; Ferrera v Roman Catholic Episcopal Corp. for the Diocese of Toronto in Canada , [1996] OJ. No 2164 (Gen. Div.) . Given that Roslyn Singer and Jason Singer are defendants in the AG's action, the AG has a prima facie right to examine them, subject to the Court's discretion to make an order as necessary in the interest of justice.

[ 4 ] Further, Roslyn Singer is the President of the Corporate defendant, Stay In Place Renovations Inc., and in 2007, received a $50,500 management fee from Stay in Place, and a $60,000 management fee in 2008. Further, the evidence indicates that she is the Director and an Officer of 1679615 Ontario Inc. and is designated as Secretary and Treasurer of that Corporation. The evidence indicates that she certified the tax returns for the Corporation. The evidence further indicates that she is the registered owner of one of the condominium units which is subject to a preservation order.

[ 5 ] Jason Singer, in addition to being a defendant in his personal capacity, is the sole Officer and Director of the Corporate defendant, 1460376 Ontario Inc., and is the registered owner of a condominium unit, also subject to a preservation order in this proceeding.

[ 6 ] I agree with the AG that both Roslyn Singer and Jason Singer, as defendants and as Officers and Directors of the subject Corporations, are relevant parties and that the plaintiff is prima facie entitled to examine them for discovery.

[ 7 ] The issue to be determined on this motion is whether, based on the evidence before me and the relevant caselaw, there is any basis on which I should exercise my discretion to exempt the defendants, Roslyn Singer and Jason Singer, from examinations for discovery for medical reasons, or whether oral discovery for the specified parties should proceed. The onus is on the moving party to establish that oral discovery for the specified parties should not proceed: Ferrera , supra , at paragraph 16.

[ 8 ] In Ferrera, the Court noted with approval the Master's statement that exemption from examination for discovery should only be granted "in the clearest and most positive of cases, where the avoidance of certain injury to a litigant offsets the rights of the litigants to due process under the Rules: Ibid. at paragraph 15. The Court further held that the moving party must provide persuasive medical evidence that he/she is unable to attend for discovery: Ibid. at paragraphs 10, 15 and 16. Motions to exclude parties from examinations for discovery require "cogent medical evidence" that a party would be harmed by the process: Kidd v Lake (1998), 42 O. J. (3d) 312 , CarswellOnt 4169 at paragraph 28 .

[ 9 ] In the present case, there is a handwritten note from a Dr. Anca Facey, indicating that Roslyn suffers from depression and is not able to testify at an examination for discovery. There are no details provided with respect to her illness, nor any details about the potential effects on her condition of participating in an examination for discovery.

[ 10 ] The medical letter provided by Dr. Robert Silver regarding Jason indicates that he suffers from Type I diabetes and that involvement in the litigation process, generally, would have "extreme deleterious effects on his future health as a future provider of his young family" and that" the long term consequences could be dire". Dr. Silver entreats "those involved with this legal action to cease and desist" from involving him. His letter addresses the issue in vague terms, without detail and without specifically addressing the potential effects of examination for discovery on his health. It appears to suggest that Jason should take no part in the litigation process generally, despite the fact that he is both defendant in his personal capacity and is a representative of his company. Further, Dr. Silver's letter appears to address the issues more in the manner of an advocate than an independent witness who clearly understands the process: see Botiuk v Campbell , 2011 ONSC 1632 , [2011] O. J. No. 1138 (Master).

[ 11 ] The AG argues that this correspondence does not constitute "persuasive", "compelling" or "cogent" medical evidence which is sufficient to remove the right of the plaintiff to examine all parties for discovery and to be entitled to due process under the Rules. I agree with the AG in this regard. The evidence is not sufficient to remove the plaintiff’s right of discovery of relevant and seminal parties to this action, to know the defendants' case and to obtain the information necessary to make its case. The defendants have failed to discharge the onus upon them to prove that oral discovery should not proceed with respect to Roslyn Singer and Jason Singer.

[ 12 ] Roslyn Singer further submits that she has already undergone extensive cross examinations on affidavits regarding the preservation order issued in this proceeding, and has given significant evidence. She indicates that no more evidence will be adduced at examination for discovery than that she has already given and that it is her husband who knows the most about the issues raised in this action. As with Ms. Singer, Jason Singer also submits that that he has already undergone extensive cross-examination on affidavits in the context of the preservation order and has given significant evidence and is unlikely to give more evidence on examinations for discovery. As I indicated during the course of the parties' submissions, the issues raised in the Amended Statement of Claim and the questions relevant to the facts as pleaded are broader in scope than the issues addressed in the affidavits and cross-examinations thereon and, therefore, the defendants contention that they have already answered all relevant questions on cross-examination on their affidavits does not take into account the broader context of examinations for discovery. Their submissions in this regard do not constitute a reason for exempting them from examinations for discovery as independent defendants and Officers and Directors of the named Corporate defendants.

[ 13 ] I order that both Roslyn Singer and Jason Singer appear at and undergo examinations for discovery as defendants in their personal capacity and as Officers and Directors of the named Corporate defendants.

[ 14 ] As stated by Justice Lax in Ferrera at paragraphs 10 and 16, "absent compelling medical evidence, which is not present here, the best that can be done by a court in these circumstances is to make the process least painful" for the parties in question. In the event that they need extra time to respond to questions, or can only attend at examinations for discovery for a half day at a time, such accommodation should be afforded to them. This is not to say that they can, on the basis of all of the evidence and submissions before me, avoid examination for discovery, but that they may be accommodated, as required, regarding the conduct of examinations for discovery. If, as a result of any accommodation, more time is required for examination for discovery than the minimum prescribed by the Rules, this will be permitted. Should the parties require a telephone conference with me in this regard, they should make arrangements for this with the Motions Office.

[ 15 ] I dismiss the defendants' motion. The parties may make written submissions regarding costs, limited to three pages with bill of costs, within 10 days of the release of this decision.

Carole J. Brown J.

Date: September 28, 2012