SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

COURT FILE NO.: 09-CV-8343CL
MOTION HEARD: July 17 and October 16, 2012

RE: Doreen Green

Plaintiff

v.

Mirtech International Security Inc. et al

Defendants

BEFORE: Master Thomas Hawkins

COUNSEL:
Harvey S. Dorsey for
moving defendants
Fax No.: (416) 943-0811

Peter T.J. Danson for
responding plaintiff
Fax No.: (416) 929-2192

REASONS FOR DECISION

[1] I have before me a motion within a motion. The events leading to the present motion begin with a motion by the defendants in part for directions respecting the terms on which the plaintiff is to examine the defendants for discovery in this action.

[2] Stephen Reich is a lawyer associated with the law firm representing the plaintiff. On March 13, 2012 he swore a lengthy affidavit with some 27 exhibits in response to the defendants’ discovery directions motion.

[3] On April 2, 2012 defence counsel cross-examined Mr. Reich on his affidavit. At that time Mr. Reich refused to answer a number of questions. That led the defendants’ lawyers to bring a motion before me for an order under subrule 34.15(1) that Mr. Reich answer questions which he had refused to answer when he was cross-examined on April 2, 2012.

[4] In response to the defendants’ refusals motion the plaintiff’s lawyers delivered two more affidavits, namely a second affidavit by Mr. Reich sworn June 26, 2012 and an affidavit by Arnold Recht sworn July 3, 2012. Mr. Recht is a partner in the law firm representing the plaintiff. Both these affidavits were sworn and delivered some time after Mr. Reich was cross-examined on April 2, 2012.

[5] The defendants have now moved before me for an order striking out the second Reich affidavit and the Recht affidavit on several grounds.

[6] First, defence counsel submits that the June Reich affidavit is an improper attempt to further explain and expand upon the evidence in the March Reich affidavit and some of the answers which Mr. Reich gave when he was cross-examined on April 2, 2012. For example, the Reich June affidavit attempts to explain what Mr. Reich meant when he used the phrase “financially burdensome on the plaintiff” in his March affidavit. Defence counsel submits that the June Reich affidavit is a blatant attempt to cooper up, repair and explain away some of Mr. Reich’s previous evidence.

[7] Defence counsel also submits that the Reich June affidavit is really the belated re-examination of a witness in affidavit form, contrary to subrule 34.11 (3). I agree.

[8] Subrules 34.11 (2) and (3) provides as follows.

(2) A person being cross-examined on an affidavit or examined in aid of execution may be re-examined by his or her own lawyer.

(3) The re-examination shall take place immediately after the examination or cross-examination and shall not take the form of a cross-examination.

[9] Clause 4.04 (e) of the Rules of Professional Conduct of the Law Society of Upper Canada is also relevant. That clause provides as follows.

Subject to the direction of the tribunal, the lawyer shall observe the following rules respecting communication with witnesses giving evidence: ….

(e) between completion of cross-examination and commencement of re-examination, the lawyer who is going to re-examine the witness ought not to have any discussion about evidence that will be dealt with on re-examination ….

[10] In his factum defence counsel makes the following submission.

The combined effect of rule 34.11 (3) and rule 4.04 (e) of the Rules of Professional Conduct, ensures that the re-examination, on one hand, provides an opportunity for the deponent to explain his or her, evidence given in cross-examination but on the other hand, poses a risk to the re-examining party that the evidence on re-examination will be harmful to the re-examining party and/or helpful to the opposing party. In other words, it provides a balanced approach and Counsel must carefully consider whether they should re-examine and to what extent. The filing of a second affidavit after cross-examination, to explain away evidence, removes entirely, the balanced approach and neuters to a significant extent, the purpose of a cross-examination.

[11] Once again, I agree.

[12] I am aware that rule 2.03 authorises me to dispense with the requirement to comply with any rule in the Rules of Civil Procedure where it is in the interest of justice to do so. Rule 2.03 provides as follows.

The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.

[13] For example, it would be in the interest of justice to dispense with the requirement to comply with rule 34.11 (3) if there were evidence that immediately after the conclusion of a cross-examination, the person being cross-examined or the lawyer who wished to re-examine the witness became seriously ill with the result that the re-examination of that witness could not proceed at that time.

[14] There is no evidence before me explaining why the Reich June affidavit could not have been sworn and delivered prior to Mr. Reich’s cross-examination.

[15] There is no evidence before me explaining why the re-examination of Mr. Reich could not proceed immediately after the conclusion of his cross-examination.

[16] Subrule 34.11 (3) is mandatory in its language: the re-examination shall take place immediately after the cross-examination.

[17] In short, the plaintiff has not provided any basis on which I should exercise my jurisdiction under rule 2.03 to exempt the plaintiff and her lawyers from complying with the requirement that the re-examination of Mr. Reich proceed immediately after the conclusion of his cross-examination. The plaintiff has definitely not shown that it is in the interest of justice to dispense with the requirement that her lawyers comply with subrule 34.11 (3).

[18] The Recht affidavit could have been but was not sworn before Mr. Reich was cross-examined on April 2, 2012 because that affidavit identifies an extract from the transcript of the defendant Marvin Miller’s cross-examination on another motion in this action held February 25, 2010.

[19] For two reasons I propose to disregard completely the Recht affidavit. First that affidavit identifies an extract from the transcript of Marvin Miller’s February 25, 2010 cross-examination, as I have said. This affidavit is not necessary. On the refusals motion counsel may refer to that transcript if it is relevant to an issue on the refusals motion without filing an affidavit identifying the transcript. Secondly, that affidavit does not provide any information not in the transcript itself. The Recht affidavit adds nothing to the record already before this court. If that transcript is not relevant on the refusals motion that is another reason to disregard the Recht affidavit.

[20] For all these reason an order will issue striking out the June Reich affidavit. I will not strike the Recht affidavit. I will simply disregard it as both unnecessary and useless.

[21] I will deal with the costs of this motion when I deal with the costs of defendants’ refusals motion.

__ (original signed) __

Master Thomas Hawkins

DATE: November 30, 2012