SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-412421
DATE: 20130108

RE: Cody et al. v. Culley et al.

BEFORE: Master Glustein

COUNSEL: Allan Rouben for the plaintiffs

Sandi J. Smith for the defendant Morell Kelly, Professional Corporation

HEARD: January 8, 2013

REASONS FOR DECISION

Nature of motion

[1] The plaintiffs Connie Cody and William Cody (collectively “the plaintiffs”) bring a motion for an order that Bruce Kelly (“Kelly”) be excluded from attending the continued examination for discovery of Lisa Morell (“Morell”). While the initial notice of motion sought an order for reattendance from Morell, that issue was resolved prior to service of the motion record as counsel for the defendant Morell Kelly, Professional Corporation (“MKPC”) advised that Morell would be available to reattend during the week of January 7, 2013.

Analysis

[2] Counsel for the plaintiffs makes two submissions with respect to the relief sought against Kelly:

(i) A corporation cannot have a different representative (in this case, Kelly) attend at examination for discovery when the adverse party has selected another representative to be examined for discovery (in this case, Morell was selected by the plaintiffs); and

(ii) Even if a corporation can have a different representative attend at examination for discovery when the adverse party has selected another representative to be examined for discovery, the evidence from the first examination for discovery of Morell demonstrates a possibility that Kelly could taint Morell’s evidence on discovery and as such Kelly should be excluded from attending Morell’s continued examination for discovery.

[3] I address each submission below.

(a) Attendance by another corporate representative

[4] A corporation is a separate and independent legal personality. It acts through its officers, directors, and employees, who make decisions on its behalf.

[5] Consequently, when an adverse party selects a representative of a corporation to be examined for discovery, the corporation has the right to attend the examination for discovery, as an independent legal entity. That attendance can only be effected by an individual on behalf of the corporation.

[6] The adverse party will often select an employee, officer, or director of a corporation for examination for discovery based on that person’s knowledge of the events at issue. The representative selected may be an employee (e.g. if the employee was allegedly negligent acting on behalf of the corporation), or officer or director if the individual was involved in the events at issue.

[7] However, the corporate representative selected by the adverse party for examination for discovery is not required to have any corporate decision-making ability. It is reasonable that a corporation might want a representative at the examination for discovery who can either decide litigation issues, or at least be in a position to report back to management level for such decisions. Such representatives could include senior management or in-house counsel.

[8] The attendance by such a representative may assist the litigation process through increased ability to settle the case or to provide more informed instruction to counsel. Such a corporate representative is not attending to be examined for discovery, but merely to be the person who acts on behalf of the separate corporate legal entity to assist in the litigation decision-making process.

[9] Consequently, MKPC should be entitled to have Kelly attend as a corporate representative so that he could be more informed in the litigation process.

[10] The plaintiffs rely on a decision of Master Garfield in Comark Inc. v. King Valve Centre Ltd. (1994), 35 C.P.C. (3d) 11 (Gen. Div. – Mast.) (“Comark”), in which Master Garfield refused to allow the plaintiff’s director of real estate (Mr. Poupard) to be present at the examination for discovery of the plaintiff’s discovery representative as selected by the adverse party (Mr. Brenninkmeyer). In Comark, the plaintiff submitted that “common sense dictates that Mr. Poupard be immediately available to answer anticipated undertakings by Mr. Brenninkmeyer” (Comark, at 12).

[11] The concern at issue in Comark does not apply in the present case, as there is no suggestion that Kelly attend to answer anticipated undertakings of Morell. Consequently, Comark does not apply.

[12] Further, to the extent that Master Garfield’s reasons can be taken to set out a general proposition that another corporate representative may not attend examination for discovery of the selected corporate representative, I would respectfully not follow such a conclusion for the reasons set out above.

[13] Consequently, I reject the first submission of the plaintiffs.

(b) Evidence re: tampering with discovery evidence

[14] I do not agree that the following evidence relied upon by the plaintiffs (from the first examination for discovery) demonstrates any concern that Morell’s discovery evidence would be affected by the presence of Kelly:

(i) The fact that Morell had her telephone turned on during the examination for discovery and Kelly attended with a laptop, without any evidence of communication between the laptop and telephone, raises no concern that Morell and Kelly were attempting to communicate with each other during the examination for discovery;

(ii) The fact that the plaintiffs’ counsel noted on one occasion that Morell was looking at Kelly does not suggest that Kelly was seeking to influence Morell’s evidence. Representatives examined for discovery can from time to time look at their counsel or someone else and as such one “look” without any other evidence is not sufficient to demonstrate a concern of tampering. Further, once the plaintiffs’ counsel raised the issue, Morell answered that “I won’t look at him” and MKPC’s counsel advised that “Mr. Kelly is not involved in this”;

(iii) While Kelly is Morell’s spouse and law partner, there is no evidence that Kelly had any involvement in the claim and the plaintiffs make no such allegation;

(iv) The fact that Morell was typing on one occasion into her smart phone does not demonstrate any communication with Kelly, and Morell immediately agreed to turn off her phone when requested by the plaintiffs’ counsel;

(v) The evidence that Kelly whispered once to MKPC’s counsel does not demonstrate any concern of tampering with Morell’s evidence, particularly as the whispering took place while the plaintiffs’ counsel was marking an exhibit; and

(vi) The fact that Kelly spoke out once on the record does not demonstrate any concern of tampering. Kelly only said that Morell was putting her concerns about a potential conflict with the plaintiffs’ counsel on the record, and Kelly made the statement only after Morell raised those concerns.

[15] Consequently, I find that the evidence does not support an order that Kelly be precluded from attending at Morell’s continued examination for discovery. I do not find any concern about tampering raised by the above evidence.

Order and costs

[16] On consent, counsel agreed to March 8, 2013 as the date for Morell’s continued examination for discovery. Consequently, I order Morell to attend for her continued examination for discovery on March 8, 2013 and I order that Kelly can attend the continued examination. Counsel for MKPC advised the court that Kelly would not bring a laptop and that Morell would keep her telephone turned off during the examination for discovery.

[17] MKPC was successful on the issue of Kelly’s attendance at Morell’s continued examination for discovery, which was the only issue before the court. MKPC’s counsel sought costs of $800, which I find to be reasonable given that attendance at court alone took a half day of counsel time. I order the plaintiffs to pay costs in the amount of $800 to MKPC within 30 days of this order.

[18] I thank counsel for their submissions which were of great assistance to the court.

Master Benjamin Glustein

DATE: January 8, 2013