ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-08-0012
DATE: 2013-01-23
B E T W E E N:
LINDA COLISTRO
Michael Cupello, for the Plaintiff
Plaintiff
- and -
TBAYTEL, THE CORPORATION OF THE CITY OF THUNDER BAY, and STEVE BENOIT
Lorne Firman and Derek Zulianello for the Defendant TBaytel
Jennifer Lohuis, for the Defendant The City of Thunder Bay
Chris Hacio, for the Defendant Steve Benoit
Defendants
HEARD: January 16, 2012,
at Thunder Bay, Ontario
Mr. Justice J.F McCartney
Decision on Motion
[1] This is a motion under Rule 36 of the Rules of Civil Procedure to examine a witness before trial, that witness being Peter Dietrich. Peter Dietrich had originally been a defendant in this action.
[2] The plaintiff brings this motion because she says that it is apparent that Peter Dietrich, who was at one time the CEO and president of TBaytel, may well have important evidence to give at trial regarding the hiring of the defendant Steve Benoit by TBaytel.
[3] The plaintiff initially had an examination for discovery of a witness set up on December 7, 2012 when the witness was in Thunder Bay. However, at that time other parties would not consent to such an examination, and before the plaintiff had time to get to court for an order for the examination, Peter Dietrich was working and living outside of the country, apparently in Australia.
[4] The trial of this matter has now been set for the jury sittings in 2014, so it is important for the plaintiff to be able to make arrangements to have him examined before trial in case he is unavailable for whatever reason to be in Thunder Bay at the time of the trial.
[5] I have reviewed what I believe to be the most important objections of the other parties to this motion.
[6] TBaytel says:
- e-mail correspondence shows that Mr. Dietrich has a distain for counsel
- there is no good evidence about where Mr. Dietrich is and plaintiff’s counsel won’t provide that information
- there is no evidence of when he will be available
- there is a presumption (rule 53.01(1) that evidence should be given at trial, Rule 36 is an exception to this
- this is a jury trial, the viva voce evidence before jurors is much more effective than a video or audio tape
- the fact to be taken into consideration by the court under Rule 36 in deciding a motion of this nature are not supported by the evidence herein.
[7] As far as the City of Thunder Bay is concerned, it adopts the position of TBaytel, but in addition asks that if the plaintiff is successful in this motion, then rules should be set up now as to the procedure for the proposed examinations.
[8] As for the defendant Steve Benoit, his reasons for objecting to the motion are that since there is no evidence that Mr. Dietrich knew about the situation complained of by the plaintiff when Mr. Benoit was hired, there is no reason that he should be examined. Furthermore, he says that examination sought would prejudice him when
- all undertakings are not completed
- presentation of the witness before the jury is critical
- there is no expert reports in as yet
- there are other ways to get the evidence without using Rule 36, i.e. on Application for Letters Rogatory
[9] It seems to me Rule 36 was established for this kind of case. The plaintiff has, to my mind, established that the witness may well have evidence crucial to the plaintiff’s case. He is obviously out of the court’s jurisdiction at the present time, but from his e-mails it appears he is prepared to come and testify as long as the examinations are properly set up i.e. it is all done at his convenience. Further, it may be that if it is done at his convenience, he will be in the jurisdiction and avoid the costs of the travel.
[10] One of the main objections of the defendants is that there is a presumption that witnesses evidence should be given at trial- and Rule 36 is an exception to this rule. I agree. Further, the parties argue that the fact that the action against TBaytel and Steve Benoit is before a jury makes it even more important to follow the general rule, since Peter Dietrich has shown a disdain for counsel, credibility is an issue, and such matters are best brought out or explored in the face of the jury. This may be the case, but these objections to my mind can be largely overcome by having the presentation of the examination to the jury by video as well as by audio presentation.
[11] Steve Benoit is also concerned that he would be prejudiced if such an examination is conducted before all undertakings are fulfilled, and before any expert reports are served. He also points out there are other ways to obtain evidence form a witness in such situations, i.e. for applying for letters rogatory.
[12] Quite frankly I do not understand what expert reports have to do with the witness in question. Furthermore, unfulfilled undertakings can be dealt with in the usual fashion, before the Examination. And clearly, Rule 36 is a much more efficient way to proceed than by an Application for Letters Rogatory.
[13] The City of Thunder Bay, for its part, also wants strict procedures be set up in the event of an examination. Section 36. 02 sets out the procedure to be followed, so there is no reason for the court to become involved unless difficulties arise.
[14] As plaintiff’s counsel has pointed out this motion merely asks for “leave” to examine the witness before trial. The actual setting up of the examination should be done with the cooperation of all parties according to the usual fashion under the rules.
[15] For all of the above reasons the motion is allowed. The examinations are to be videotaped for presentation at trial. Undertakings are to be fulfilled prior to the Examination.
Costs
[16] Parties spoke to costs at the conclusion of their argument. Plaintiff’s counsel indicated that he was claiming costs in the range of $5000-$7500. The plaintiff being the successful party she should have her costs. Costs herein are fixed at $6000.00 divided equally among the defendants.
The Hon. Mr. Justice J.F. McCartney
Released: January 23,2013
COURT FILE NO.: CV-08-0012
DATE: 2013-01-23
ONTARIO
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LINDA COLISTRO
Plaintiff
- and –
TBAYTEL, THE CORPORATION OF THE CITY OF THUNDER BAY, and STEVE BENOIT
Defendants
DECISION ON MOTION
McCartney, J
Released: January 23,2013
/mrm