Court File and Parties

COURT FILE NO.: CV-12-109990

DATE: 20131004

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Good Vibrations Disc Jockey Services Ltd., Plaintiff

-and-

The Royalton Hospitality Inc., Defendant

BEFORE: The Honourable Mr. Justice M. K. McKelvey

COUNSEL:
Daniel W. Simard, for the Plaintiff
Nidhi Punyarthi, for the Defendant

HEARD: September 19, 2013

ENDORSEMENT

Introduction

[1] The plaintiff in this action is suing for breach of contract. It alleges that it had a contract with the defendant to supply disc jockey services which was breached. The plaintiff brought a motion for summary judgment returnable on September 19, 2013. In support of its motion the plaintiff filed an affidavit from Edwin Quezada who is the operations manager of the plaintiff corporation. In response the defendant filed a series of affidavits. It also elected to cross-examine Mr. Quezada on his affidavit.

[2] Shortly before the hearing of the motion the plaintiff filed a further affidavit by its president, Gino Santarossa. The defendant asserts that this affidavit should not be received by the court. In the alternative, the defendant seeks leave to file further affidavit material in response. The plaintiff maintains that having elected to cross-examine Mr. Quezada the defendant is precluded from filing any further responding material pursuant to rule 39.02 of the Rules of Civil Procedure.

Factual Background

[3] The following is a brief chronology of the relevant events in connection with the motion:

April 25, 2013 The plaintiff issues its motion record.

May 8, 2013 The parties attend at a long motion assignment court. This motion is scheduled to be heard during the week of September 16, 2013.

August 29, 2013 The defendant delivers a responding motion record which includes a number of affidavits relied upon by the defence in response to the motion. The defence also requests a cross-examination of Mr. Quezada who swore the plaintiff’s affidavit in support of the motion.

September 5, 2013 The defence conducts its cross-examination of Mr. Quezada.

September 9, 2013 In the morning, the defence delivers its factum and brief of authorities for this motion.

September 9, 2013 That evening, the plaintiff delivers a further affidavit in support of its motion sworn by Mr. Gino Santarossa.

September 10, 2013 The plaintiff delivers its factum and brief of authorities on the motion.

Position of the Parties

[4] The defence position is that the affidavit of Mr. Santarossa should not be received by the court on this motion. It argues that having set out its strategy by delivering its factum the plaintiff should not be allowed to deliver a responding affidavit which attempts to get around the problems on its motion for summary judgment. The defendant further asserts that the delivery of the affidavit of Mr. Santarossa violates the spirit of rule 39.02. Finally, the defendant states that if reliance on the affidavit of Mr. Santarossa is permitted it should be permitted to file a responding affidavit.

[5] The plaintiff maintains that there is no prohibition under the rules from its delivering the affidavit of Mr. Santarossa. The prohibition against delivery of a further affidavit under rule 39.02 only applies to a party who has elected to cross-examine on the other party’s affidavit (which they have not done). The plaintiff also asserts that the defendant has no right to file a further affidavit based on the fact that it has cross-examined Mr. Quezada on his affidavit. The plaintiff relies upon the provisions of rule 39.02.

Analysis

[6] Rule 39.02 provides that a party to a motion who has served every affidavit on which the party intends to rely and who has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.

[7] Rule 39.02(2) states,

A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

[8] The defendant argues that rule 39.02 should be read with the purpose of the rule in mind. It is suggested that the purpose of the rule is to ensure that all affidavit material is delivered before cross-examinations take place. They, therefore, argue that the delivery of further affidavit material by the plaintiff after the cross-examination of Mr. Quezada should be prohibited unless the plaintiff can satisfy the provisions for leave under rule 39.02(2). The defendant has not been able to refer to any authority which supports their position in this regard. In my view, a plain reading of rule 39.02 makes it clear that the prohibition against delivering further affidavit material applies only to, “a party who has cross-examined on an affidavit delivered by an adverse party”. Because the plaintiff had elected not to cross-examine on the defence affidavits it was, in my view, not precluded by rule 39.02 from delivering a further affidavit prior to the hearing of the motion.

[9] Rule 39.02 is an important procedural rule which governs the conduct of motions and applications. It is clearly designed to place limits on the delivery of affidavits after cross-examinations have taken place. However, it would be wrong, in my view, to extend an interpretation of the rule beyond its clearly stated wording.

[10] This does not mean, though, that the court has no power to control its own process on the hearing of a motion. In NRS London Realty Ltd. v. Glenn (1989), 1989 4322 (ON SC), 67 O.R. (2d) 704, the court dealt with a situation where a motion was adjourned due to inclement weather. Prior to the resumption of the motion a further affidavit was served by the defendant. In that decision the court makes reference to the decision of Master Sandler in Chitel v. Robert Rothbart, 42 C.P.C. 217, where Master Sandler comments that it would be wrong, except in most unusual circumstances, to allow a counsel to repair damage to his case by allowing further evidence to be introduced as the motion is being argued because holes are being punched into the structure by opposing counsel’s submissions. In that case Master Sandler had begun hearing the motion in the late afternoon and adjourned it to the following day. Prior to the resumption of argument, the plaintiff’s counsel tendered an affidavit on behalf of his client which had been prepared overnight. The affidavit was rejected by Master Sandler.

[11] Similarly in the NRS London Realty Ltd. case the court declined to receive a further affidavit from the defendant based on the principles outlined by Master Sandler in the Chitel decision.

[12] The defendant argues in this case that having delivered its factum and disclosed its motion strategy it would be unfair to allow the plaintiff to file further affidavit material.

[13] I have difficulty in extending the principle described by Master Sandler to a situation where an affidavit is delivered prior to the hearing of the motion and which is otherwise in conformance with the Rules of Civil Procedure. In addition, it is apparent in the facts of this case that the defendant must accept at least some responsibility for the problem which occurred by waiting until very shortly before the hearing of the motion to deliver its responding material. The motion date was set in May, 2013 but the defendant waited until August 29th before delivering its responding material. This left very little time for the parties to organize any cross-examinations or for the plaintiff to prepare and deliver any responding affidavit material. It is common in long complex motions for the parties before the court to set a schedule for the exchange of documentation and scheduling of cross-examinations. Unfortunately, the parties did not set such a schedule in this case.

[14] For the above reasons I conclude that the plaintiff is entitled to rely on the affidavit of Mr. Santarossa.

[15] This leaves the question of whether the defendant should be entitled to file a responding affidavit. In the present case plaintiff’s counsel did not give any advance notice to defence counsel of his intention to file a further affidavit. I was left with the impression that this was done for strategic purposes on the basis that there was no specific rule which required him to disclose his intention to do so. This overlooks the reasonable expectation of the court that parties will work in a cooperative manner on procedural issues to ensure that motions can be heard in a prompt and effective manner. Cooperation between counsel on these types of procedural matters is to be encouraged and is one of the underlying reasons why courts expect parties to work out a schedule for delivery of material prior to the hearing of a motion. The result in this case is that the better part of a day was spent on arguing procedural issues instead of the motion for summary judgment itself.

[16] There is good authority to suggest that leave under rule 39.02 to deliver further affidavit material after cross-examination on the other party’s affidavit should be granted sparingly. In Brock Home Improvement Products Inc. v. Corcoran (2002), 2002 49425 (ON SC), 58 O.R. (3d) 722, the court noted that the words “ought to be permitted to respond” found in rule 39.02(2) impose a burden on a party who seeks leave to show more than the absence of non-compensable prejudice to the opposite party. In addition, those words impose a requirement for the party who seeks leave to provide a satisfactory explanation for its failure to include the proposed additional evidence as part of its pre-cross-examination case. In addition, the rule further provides that the purpose for delivery of any further affidavit material is to “respond to any matter raised on the cross-examination”.

[17] I have concluded that this is one of those rare cases where leave should be granted to the defendant to deliver further responding affidavit material. The plaintiff has not pointed to any prejudice it will suffer from an order granting leave to the defendant to file further affidavit material. In addition, the request for leave to file further affidavit material does appear to flow from the cross-examination conducted by the defence of Mr. Quezada. This cross-examination identified a number of significant weaknesses in the plaintiff’s case which were subsequently responded to in the supplemental affidavit filed by the plaintiff. For example, it is apparent in reviewing the transcript from the cross-examination of Mr. Quezada that he had little actual knowledge for a number of significant events in question. The supplemental affidavit of Mr. Santarossa is clearly an attempt to address the situation.

[18] So, for example, at his cross-examination Mr. Quezada was asked about a client complaint which was referenced in the defendant’s material. He was asked at page 53 the following question:

Q. I mean, let’s say the event with free sound or whatever went ahead...I have to confirm if it did. Do you know if it did? Do you know if Christina came back after Gino’s offer?

A. I don’t recall.

Q. Okay.

A. Yes, I don’t recall.

Q. If Gino actually ended up resolving the issue with Christina, did he ever tell you?

A. No.

In the affidavit of Mr. Santarossa he comments in paragraphs 12 to 14 on the particular complaint and how it was dealt with by the plaintiff corporation. This could not reasonably have been anticipated by the defence prior to its cross-examination of Mr. Quezada.

[19] In the circumstances I have concluded that it would be unfair to deny the defendant an opportunity to respond to the affidavit of Mr. Santarossa which responds to weaknesses in the plaintiff’s case that emerged in the cross-examination of Mr. Quezada.

Conclusion

[20] For the above reasons, I order that the affidavit of Mr. Santarossa may be received and relied upon by the plaintiff at the hearing of this motion. However, the defendant is granted leave to deliver affidavit material in response to the affidavit of Mr. Santarossa. Costs of the attendance today are left to the judge hearing the motion for summary judgment.

Justice M.K. McKelvey

Released: October 4, 2013