SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-CV-397570
MOTION HEARD: DECEMBER 19, 2012

Between: Brett Salvisburg, in his personal capacity, and as Executor of the Estate of Norene French, Helen Murphy, Lisa Robinson, Michael Robinson, Blair Salvisburg, Sue Milne, and Brett Salvisburg, Blair Salvisburg, Lisa Robinson, Trustees of the Norene French Family Trust

v.

Jeff Willis, IPC Securities Corporation, IPC Investment Corporation, IPC Estate Services Inc., Journey Partners International Corp, AIG Life

Insurance Company of Canada now BMO Life Assurance Company, Industrial Alliance Insurance and Financial Services Inc., 1320180 Ontario Inc., Cornerstone Professional Inc. and 1743079 Ontario Limited (formerly 2090460 Ontario Inc.) and World Serve Ministries, Every Home For Christ International/Canada, Street Challenge Ministries International and Canadian Diabetes Association

BEFORE: Master Thomas Hawkins

COUNSEL:
A. Benson Forrest for moving defendants
Jeff Willis and 1320180 Ontario Inc.
F: (416) 601-1818

Meredith Rady for responding plaintiffs
F: (416) 860-0003

Vanessa Voakes for responding defendant
Industrial Alliance Insurance and Financial Services Inc.
F: (416) 947-0866

Nicolette Holovaci for responding defendant
BMO Life Assurance Company
F: (416) 365-0021

Christopher Somerville for responding
defendants IPC Securities Corporation,
IPC Investment Corporation and IPC Estate Services Inc.
F: (416) 360-5960

No one for the other defendants

REASONS FOR DECISION

[1] In this action for alleged negligent investment advice and other civil wrongs, the defendants Jeff Willis and 1320180 Ontario Inc. move in part for directions under rule 34.14 respecting the adjourned and uncompleted examination for discovery of the plaintiff Brett Salvisberg.

[2] Counsel for BMO Life Assurance Company and for the IPC defendants supported this part of the moving defendants’ motion. Counsel for Industrial Alliance Insurance and Financial Services Inc. took no position.

[3] I have already dealt with the part of this motion in which the moving defendants sought an order under subrule 34.15(1) that Mr. Salvisberg answer undertakings given and questions refused on his examination for discovery. The other parts of this comprehensive motion have been resolved without the need for any order from me.

[4] Rule 34.14 provides as follows.

(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.

(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 examination and the court may fix the costs and make such other order as is just.

[5] The moving defendants complain that their examination for discovery of Brett Salvisberg held on July 17, 2012 was interfered with by an excess of improper interruptions or objections from counsel who represented Mr. Salvisberg at his examination.

[6] I hasten to add that the counsel whose conduct is the subject of the moving defendants’ complaint is not Ms Rady, who represented the responding plaintiffs before me.

[7] I have read the transcript of Mr. Salvisberg’s examination for discovery. I recognize that since I do not have a tape recording of that examination, I am unable to tell whether the questions that were asked and the objections that were taken were asked and taken in a civil tone of voice or not.

[8] In all, 419 questions were asked over 91 pages of transcript. Plaintiffs’ counsel instructed Mr. Salvisberg not to answer a question some 38 times. In assessing whether this was an excess of improper objections one must take into account the fact that several times examining counsel asked a series of questions on a subject which subject counsel for Mr. Salvisberg evidently thought was irrelevant, with the result that he instructed Mr. Salvisberg not to answer all the questions on that subject. I say “evidently thought” because for the most part, counsel for Mr. Salvisberg did not during the examination, give a reason for his objections, contrary to subrule 34.12(1).

[9] Subrule 34.12(1) provides as follows.

Where a question is objected to, the objector shall state briefly the reason for the objection, and the question and the brief statement shall be recorded.

[10] I have said that counsel for Mr. Salvisberg took some 38 objections to questions during the examination. Initially, the moving defendants sought answers to 34 refused questions. By the time the Form 37C charts were properly completed, counsel for the moving defendants withdrew the motion in respect of four questions while Mr. Salvisberg answered three questions initially refused. Questions were objected to on the ground of lack of relevance 19 times and on the ground of privilege eight times. A small number of questions were objected to on both grounds. When the refusals part this motion was argued on December 19, 2012 I was asked to rule on 27 questions. On some five occasions groups of three or more questions were argued together. In the result, I ruled that objections to 11 questions were proper.

[11] Taking into account the facts and considerations I have set forth in paragraphs [8] and [10], I have come to the conclusion that counsel for Mr. Salvisberg did not interfere with the right of counsel to examine Mr. Salvisberg with an excess of improper objections.

[12] That conclusion does not dispose of all the grounds for this part of the moving defendants’ motion. On two occasions during the examination counsel for Mr. Salvisberg lapsed into uncivil sarcastic conduct. At question 118 he asked examining counsel “are you deaf?”. At question 208 examining counsel asked Mr. Salvisberg why he was made the sole executor of his mother’s estate. Counsel for Mr. Salvisberg responded “why don’t you pull out a Ouija board and ask his mother? What kind of question is that?” This implies that it is abundantly obvious that Mr. Salvisberg would not know the answer to this question. This is not the case. For example, Mr. Salvisberg may have had a discussion with his mother about why he was to be her sole executor even though he had adult siblings.

[13] These two occasions were serious lapses by counsel for Mr. Salvisberg on Mr. Salvisberg’s examination for discovery. Fortunately there were only two such occasions. All in all, I do not feel that this was an occasion where the conduct of counsel for Mr. Salvisberg was such that the examination for discovery of Mr. Salvisberg on July 17, 2012 was a complete waste of time, with the result that Mr. Salvisberg must undergo a complete new examination. The fact that counsel for the moving defendants sought relief under subrule 34.15(1) respecting undertakings and refusals on this examination implies that the examination was of some benefit. In any event, Mr. Salvisberg is prepared to attend a continuation of his examination.

[14] I trust there will not be a recurrence of the uncivil conduct I have criticised in paragraphs [12] and [13] above. If such conduct does recur, any motion for directions under rule 34.14 will come before me as the master case managing this action. Counsel who read these reasons for decision will know how I feel about such conduct.

[15] I know turn to the subject of the costs of this motion. While it is fair to say that success on both parts of this motion (the subrule 34.15(1) part and the rule 34.14 part) was divided, on balance the moving defendants were more successful than the responding plaintiffs. In addition, I do not want to be seen as rewarding in any way the misconduct I have described in paragraphs [12] and [13]. For these reasons I have concluded that the moving defendants are entitled to the costs of this motion on a partial indemnity basis. I fix those costs at $ 5,127.00 and order the plaintiffs to pay such costs to the moving defendants within 30 days.

(orginal signed)___

Master Thomas Hawkins

DATE: April 19, 2013