COURT FILE NO.: 06-CV-306081

DATE HEARD: February 27, 2014

ENDORSEMENT RELEASED: March 24, 2014

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STEVE MOORE, JACK MOORE and ANNA MOORE v. TODD BERTUZZI, ORCA BAY HOCKEY LIMITED PARTNERSHIP, ORCA BAY HOCKEY, INC. dba THE VANCOUVER CANUCKS HOCKEY CLUB, VANCOUVER CANUCKS LIMITED PARTNERSHIP and VANCOUVER HOCKEY GENERAL PARTNERS INC.

BEFORE: Master R. Dash

COUNSEL: Timothy Danson and Marjan Delavar, for the plaintiffs

Steven Frankel, for the non-party John McCaw Jr.

REASONS FOR DECISION (AMENDED)

[1] This is a motion by the plaintiffs to issue a commission and letter of request to the judicial authorities in the State of Washington to compel John McCaw Jr. (“McCaw”), the former owner and CEO of the Orca Bay defendants, to give evidence as a witness in this action by attendance at trial in person in Toronto, or alternatively to attend at a location in Seattle to give evidence live at trial by videoconferencing or alternatively to attend for examination under oath prior to trial. McCaw is an American citizen and resident of Seattle, Washington.

[2] McCaw opposes the granting of any relief. He asserts that there is no lawful basis for the first two alternatives and that the third alternative should be refused as the plaintiffs have failed to satisfy the court that McCaw has material evidence to give that is not merely corroborative of evidence obtainable from other witnesses. McCaw has delivered a factum but has served no affidavits or other materials in response to the motion. I therefore accept the facts as set out in the evidence of the plaintiffs.

[3] None of the defendants take a position on the motion.

BACKGROUND

[4] The action by the plaintiff Steve Moore (“Moore”) and his parents arises out of an assault committed by the defendant Todd Bertuzzi (“Bertuzzi”) on Moore during a National Hockey League (“NHL”) game on March 8, 2004. The facts as relevant to the motion before me commence with an earlier NHL game on February 16, 2004 when Moore, a hockey player with the Colorado Avalanche, checked Markus Naslund, the team captain of the Vancouver Canucks and the league’s then leading scorer, resulting in injuries to Naslund. There was no penalty or disciplinary action taken. Between those two games, remarks were made in the media by several Canucks’ players, including Bertuzzi, as well as by the Canucks’ then general manager and coach that suggested, according to the plaintiffs’ allegations, that there was a bounty on Moore and that the Canucks would retaliate against Moore in a future game. Two games later on March 8, 2004 Bertuzzi, a player with the Canucks, struck Moore from behind and drove his face into the ice causing Moore to suffer severe injuries. Bertuzzi received a multi-game suspension and pleaded guilty to criminal charges of assault causing bodily harm.

[5] In this action Moore has named as defendants Bertuzzi and the Orca Bay corporations, who are the corporate owners of the Canucks (collectively “Orca Bay”).

[6] The plaintiffs’ claims against Orca Bay were originally pled in vicarious liability but by order made on February 1, 2008 I permitted amendments to the statement of claim to include allegations of direct negligence. The amendments specifically plead that the Orca Bay defendants are directly liable as a result of persons in a position of management encouraging players to effect retribution against and failing to take reasonable measures to prevent violence against Moore. In particular it is pled that then Canuck president and general manager Brian Burke (“Burke”) and then head coach Marc Crawford (“Crawford”) made comments following the February 16, 2004 game that constituted a “calling out” to Canucks’ players to take retaliatory action and effect “payback” against Moore – in effect putting a “bounty” on Moore. It is also pled that between the second and third period of the March 8, 2004 game Crawford told Canuck players that Moore had to “pay the price”.

[7] The amended claim alleges that Orca Bay knew of and condoned threats made by players and the “calling out” by management. It alleges that “they” knew it was likely that Bertuzzi would, given the control Burke and Crawford had over the players and the circumstances of the March 8 game, act on threats he had made following the earlier game. It is alleged that Orca Bay made no effort to “turn down the temperature” and prevent retribution. They allege that “by failing to take control of a clearly escalating problem” the Orca Bay defendants gave Bertuzzi “their approval to exact revenge” on Moore when an opportunity presented itself. The amendments allege that Orca Bay owed a duty of care to Moore and the failure of Canuck ownership or management to take positive action to prevent a retaliatory payback against Moore despite concerns expressed by NHL executives constituted negligence of Orca Bay.

[8] A particularly salient plea of negligence as against the Orca Bay corporations for purposes of this motion is set out as follows (emphasis added): “Had ownership and/or management instructed all Canuck players, and in particular those players who had threatened some sort of ‘payback’ against Moore, not to fight or otherwise assault Moore, no retaliation would have occurred”.

[9] In subsequent amendments made in June 2008, the plaintiffs plead that Orca Bay was “wholly owned by John McCaw Jr. through various entities” and that in 2006 and 2007 McCaw sold his interest in Orca Bay to the Aquilini Investment Group. In evidence presented on this motion it is alleged that despite the sale, McCaw retains a financial interest in this action since his sale price to the Aquilinis will be reduced by 50% of any settlement or judgment that Orca Bay must pay to Moore and that McCaw must approve any settlement. None of these allegations are denied. No motion was ever made by Orca Bay to strike these pleadings as scandalous or irrelevant to the causes of action pled.

[10] The plaintiffs examined David Nonis (“Nonis”), the Vice-President of the Canucks, for discovery as the representative of Orca Bay. From having case managed this action for over six years and having heard and determined numerous motions, I am aware that part of his examination involved undertakings to obtain information from Crawford, but there is little evidence on this motion as to the questions asked or answered by Nonis on his examination as to the knowledge or actions of ownership or other members of management.

THE ISSUES ON THIS MOTION

[11] The plaintiffs claim that the evidence of McCaw is material and essential for a fair trial of this action on issues of both vicarious liability and direct negligence of Orca Bay as a corporate entity as well as punitive damages. The plaintiffs are of the view that McCaw should be compelled to give testimony as a witness in this action which is scheduled to be heard by a jury. They prefer he give his testimony in person at the trial in Toronto, or alternatively by videoconference live from Seattle during the trial. Only if the court is unable or unwilling to provide such order, the plaintiffs seek to take his testimony before trial and to have a videotape available to play at trial.

[12] If McCaw lived in Ontario he could be served with a summons to witness pursuant to rule 53.04 and he would be required to attend at the trial. No grounds are required to support the issuing of a summons. If he failed to attend, the rule provides that the presiding judge could cause his apprehension by warrant of arrest. If McCaw lived elsewhere in Canada his attendance at trial could be compelled pursuant to section 5 of the Interprovincial Summonses Act[^1] where the party issuing the summons satisfies an Ontario judge that the witness’s attendance is reasonable and is necessary for the due adjudication of the proceeding and the due administration of justice in Ontario. The judge could then sign a certificate to attach to the summons, and the court in the reciprocating province would be required to receive and adopt the summons as an order of the reciprocating court.

[13] Mr. McCaw however is an American citizen residing in the State of Washington. He is beyond the reach of both rule 53.04 and the Interprovincial Summonses Act. His attendance, whether before trial, or if permitted, at trial, can be compelled only by a Washington court providing assistance by giving effect to a letter of request issued by an Ontario court.

[14] Three questions must be asked. First, does McCaw have material evidence to give at or for the trial of this action that meets the test in the jurisprudence for commission evidence? Secondly, what are the limitations on the assistance I can ask a Washington court to provide? Am I limited to commission evidence taken under oath in Washington prior to trial and videotaped for replay during the trial of this action or do I have authority to seek assistance to compel McCaw to give his evidence live during the trial either in Toronto or alternatively in Washington through videoconferencing facilities? Thirdly, if more than one option is available, which is most appropriate in the circumstances of this case?

THE RULES FOR TAKING COMMISSION EVIDENCE

[15] I start with the rules respecting the taking of commission evidence for use of trial.

[16] Rule 36 governs the taking of evidence before trial. Rule 36.02 provides:

A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person’s testimony available to be tendered as evidence at the trial.

[17] Rule 36.01(3) sets out the considerations for the exercise of the court’s discretion to order the taking of evidence before trial:

In exercising its discretion to order an examination under subrule (2), the court shall take into account,

(a) the convenience of the person whom the party seeks to examine;

(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;

(d) the expense of bringing the person to the trial;

(e) whether the witness ought to give evidence in person at the trial; and

(f) any other relevant consideration.

[18] Clearly subrule 36.01(3)(c) applies since McCaw resides outside the jurisdiction of the court and has indicated he will not voluntarily come into the jurisdiction at the time of trial. This favours the granting of an order for the taking of evidence. Also subparagraphs (a) and (d) would favour taking evidence before trial, since McCaw will not attend the trial in Toronto and it would be more convenient to him and less expensive for him to be examined in Washington. While (e) favours McCaw coming to Toronto, he will not do so voluntarily and there is no means to compel him to do so. The test under rule 36.01 is satisfied.

[19] That however does not end the matter since McCaw does not reside in Ontario. Rule 36.03 provides as follows:

Where an order is made under rule 36.01 for the examination of a witness outside Ontario, the order shall, if the moving party requests it, provide for the issuing of a commission and letter of request under subrules 34.07 (2) and (3) for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction, and the order shall be in Form 34E.

[20] Rule 34.07 governs the taking of evidence for examinations where the person to be examined resides outside of Ontario. Rule 34.01 sets out the types of examinations to which rule 34.07 applies. They include examinations for discovery, cross-examinations on an affidavit, examinations of witnesses before the hearing of a motion, examinations in aid of execution and applicable to the matter before me:

(b) the taking of evidence before trial under rule 36.01, subject to rule 36.02

[21] Clearly Rule 34 applies to the taking of evidence under oath of Mr. McCaw in the State of Washington before trial. It is obvious, as Mr. Frankel points out, that Rule 34 does not speak to the examination of Mr. McCaw in the State of Washington during the trial, by videoconference or otherwise. I will have more to say about that later in these reasons.

[22] Rule 34.07(1) governs terms for an order for conducting an examination where the person resides outside Ontario:

Where the person to be examined resides outside Ontario, the court may determine,

(a) whether the examination is to take place in or outside Ontario;

(b) the time and place of the examination;

(c) the minimum notice period;

(d) the person before whom the examination is to be conducted;

(e) the amount of attendance money to be paid to the person to be examined; and

(f) any other matter respecting the holding of the examination.

[23] The court may order the examination in Ontario of a non-Ontario resident only if the person is a party to the action or an officer, director or employee of a corporate party and typically only for the examination for discovery of the party or for cross-examination on an affidavit proffered by a party. While McCaw was once the owner and officer of the Orca Bay defendants he is not at this time. The plaintiffs chose or agreed to accept David Nonis as the corporate representative of Orca Bay for examination for discovery. Therefore, if I order McCaw to attend for examination as a witness before trial, I would order that the examination be conducted in the State of Washington in a judicial centre convenient to Mr. McCaw.

[24] The process for compelling the attendance of the non-resident witness to give evidence before trial is to grant an order for the issue of a commission and letter of request for the issuance of process by judicial authorities in the jurisdiction where the witness resides, in this case the State of Washington. Rule 34.07(2) provides:

Where the person is to be examined outside Ontario, the order under subrule (1) shall be in Form 34E and shall, if the moving party requests it, provide for the issuing of,

(a) a commission (Form 34C) authorizing the taking of evidence before a named commissioner; and

(b) a letter of request (Form 34D) directed to the judicial authorities of the jurisdiction in which the person is to be found, requesting the issuing of such process as is necessary to compel the person to attend and be examined before the commissioner.

[25] Rules 34.07(3) to (7) provide for the registrar issuing the commission and letter of request, the fixing of any attendance money to be paid, the duties of the commissioner conducting the examination (in Washington) in accordance with Ontario rules and law of evidence and preparation and service of a transcript.

THE TEST FOR COMMISSION EVIDENCE

[26] I have been directed by the lawyers for McCaw to several Ontario authorities setting out the evidentiary requirement for the granting of a letter of request to obtain commission evidence. In a 1947 decision Master Conant stated: “It is well-settled law that a commission will not be granted unless the Court is satisfied, among other things, that the witness to be examined can give evidence material to the issue…It is not enough to say that possibly it may be of some use on some collateral matter – that it may be useful for the purpose of corroborating a witness, or something of that kind; it must have a closer bearing on the issue.”[^2] The master goes on to say that there must be “proper evidence before the Court that the proposed witness will, or may be expected to, give the evidence indicated”. He adds that the moving party’s deponent must state his belief as to what the proposed witness will say, and the grounds for his belief, and not simply state that the deponent “desires” to obtain such evidence from the proposed witness.[^3] (This of course is consistent with our current rule 39.01(4)).

[27] In a 1985 decision Pennell J. stated: “The granting of a commission is a matter of judicial discretion to be exercised according to the circumstances of each case…The main consideration is a fair and full trial. The evidence sought must be material to the issue…and not merely corroborative.”[^4] The last reference was to the above decision of Master Conant.

[28] In a more recent case, on a motion for a commission to examine experts who had given evidence in underlying proceedings in Turkey as to their bias, Gans J.stated that the foreign judgment was final and unimpeachable and there was not a scintilla of evidence as to any improprieties in the experts’ appointments or as to a reasonable apprehension of bias. Gans J. stated: “While I recognize that the law with respect to witnesses on a pending motion does not require a party to establish that the examination will yield some helpful evidence, it surely does not eliminate the need to establish, as a minimum, that the inquiry is something more than a fishing expedition.”[^5]

[29] Some cases have suggested that before the court orders commission evidence respecting a Rule 36 examination, it should be satisfied that the request is bona fide, that the witness has material evidence to give and there is good reason why the witness cannot attend the trial in person.[^6]

[30] In summary, before issuing a commission and letter of request there must be proper evidence before the court of what the moving party believes the evidence will be of the proposed witness such that the proposed examination is not simply a fishing expedition. The anticipated evidence must be material to an issue in the action, as opposed to a collateral matter, and must be more than merely corroborative of evidence of other witnesses. The request must be bona fide and there must be good reason why the witness cannot attend personally at trial. The overriding principle however in the granting of a commission is a fair and full trial. The determination is a matter of judicial discretion to be exercised according to the circumstances of each case.

[31] There is also authority that “a party should not be dilatory in applying for a commission”[^7], but in that case the sittings had already commenced. It may be appropriate to deny an order for commission evidence if it will result in loss of a fixed trial date.[^8]

HAS THE TEST FOR COMMSSION EVIDENCE BEEN MET?

[32] Dealing with the last point, McCaw points out that the trial is now fixed to proceed on September 8, 2014 for 18 weeks. This is the third fixed trial date. McCaw claims that there is insufficient time between now and the trial date to hear this motion, proceed through levels of appeal in Ontario, move before the courts in Washington to enforce the letter of request and proceed through levels of appeal in Washington, thereby jeopardizing the fixed trial date in Ontario. There are three answers to that. First, the plaintiffs made this request as early as October 25, 2013, two weeks after the trial date was set. Secondly, Mr. Danson has undertaken to the court that the trial will proceed whether or not the matter of enforcing Mr. McCaw’s attendance is finally disposed of. He will not seek to adjourn the trial to enforce McCaw’s attendance. Third, McCaw has gone to great length to emphasize that he is not a party to this action. As such it is of no concern to him whether the trial proceeds on September 8 or is adjourned. The defendants, who would have a legitimate interest respecting any trial delays, have not opposed this motion. The cases where delay has been raised as an issue involve concerns by the parties to those actions. There is no basis to deny this motion based on delay.

[33] The plaintiffs have satisfied me that McCaw has material evidence to give both on the issue of Orca Bay’s direct negligence causing or contributing to Moore’s damages and on the issue of Orca Bay’s vicarious liability for the assault on Moore by Bertuzzi as well as on the issue of punitive damages. These are not collateral issues and McCaw’s evidence as owner at the relevant times is not “merely” corroborative of other evidence. The areas of anticipated evidence are particularized and it is not simply a fishing expedition.

Corporate Negligence

[34] On the issue of corporate negligence, it is not disputed that McCaw was at all material times between the February 16, 2004 Naslund incident and the March 8, 2004 assault by Bertuzzi the owner and chief executive officer of Orca Bay. He was the person at the top of the organization and ultimately responsible for the actions of management and for either setting the corporate culture of the organization or delegating that responsibility to others. He would have been the person who appointed Brian Burke as president and general manager of the Canucks and determined that he was an appropriate person for that position.

[35] After the February 16 incident, Bertuzzi and at least three other Canucks players made remarks widely reported in the press that suggested that there was a “bounty” on Moore, there was “going to be pay up time” and “absolutely” there would be retaliation and “situations would present themselves”. The Canucks’ coach Marc Crawford was reported in the media as saying that Moore’s “cheap shot” on Naslund “needs to be answered”. The Canuck’s general manager Brian Burke made remarks in the press that the hit on Naslund was “a marginal player going after a superstar” and the Canucks “cannot afford to have players like that sitting on the sidelines because some grinder decides to rake him out with a cheap shot.” (Naslund was out for three games.) He added that players who have the biggest impact on a team’s success (Naslund) “have always been protected to a higher level”. While not stated in so many words, the plaintiffs suggest that such comments by Burke amount to a “calling out” of Canucks’ players to effect retribution.

[36] I refer to these statements in the media because the evidence of Orca Bay, in response to answers to undertakings, acknowledged that Canucks’ public relations people monitored all news and media reports between February 16 and March 8, 2004 which he provided to staff daily “via a company wide email”, however “there was no monitoring of the extent to which these emails were read.” While there is no evidence (yet) that McCaw read those emails or was otherwise informed about the statements of the players and management or even generally about the escalating situation, it is fair to assume a reasonable likelihood he would have been made aware of the situation. There was no responding evidence provided by McCaw or by anyone else based on information and belief to indicate that McCaw had no knowledge. I do not suggest that McCaw had an onus to provide evidence on the motion – proving that McCaw has relevant evidence for trial is the responsibility of the plaintiffs – but it would not have been difficult for him to have done so and put an end to this enquiry.

[37] It is also pled that NHL Commissioner Gary Bettman and Executive Vice President of the NHL, Colin Campbell, attended a game between the Avalanche and the Canucks on March 3, 2008, between the Naslund incident on February 16 and the assault on March 8 to discourage retaliation and prior to the start of the game on March 8, 2004 Campbell cautioned Nonis about carrying out continued threats of “payback”. It is not (yet) known if Nonis communicated this to McCaw.

[38] In my view it is material to the issue of Orca Bay’s negligence to obtain the evidence of the man “at the top” as to whether he knew about the events of February 16, whether he knew about the statements by players and management in the media or the concerns of the NHL executive or generally that matters were escalating, what if anything he did about it either personally or by delegation to others and if he did nothing, why not? Did he encourage retribution against Moore? Alternatively, did he take steps to “turn down the temperature” by directing management to take steps to prevent retaliation.

[39] While the plaintiffs have the discovery evidence of David Nonis on behalf of Orca Bay, and while it is possible that the evidence of Brian Burke and Marc Crawford, neither of whom are current employees of Orca Bay, may be available at the trial of this action if they choose to attend, only McCaw can testify as to what he, as the ultimate owner of the Canucks (through ownership of Orca Bay) did or did not do with respect to whatever information he had about the events between February 18 and March 8, 2004, what he chose to say or not say to management and whether he was indifferent to the risks created by the employees of Orca Bay under his ultimate ownership.

Vicarious Liability

[40] In terms of vicarious liability, it is instructive to note remarks by the Supreme Court of Canada in Bazley v. Curry[^9] dealing with the vicarious liability of a children’s foundation for sexual assaults on children committed by a pedophile they employed in one of their residential homes. The court set out the two alternate bases for vicarious liability as follows:

[E]mployers are vicariously liable for (1) employee acts authorized by the employer; or (2) unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.[^10]

[41] With respect to the second basis for vicarious liability, the court has made remarks that are salient to the examination of McCaw:

Fixing the employer with responsibility for the employee's wrongful act, even where the employer is not negligent, may have a deterrent effect. Employers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision.[^11]

Beyond the narrow band of employer conduct that attracts direct liability in negligence lies a vast area where imaginative and efficient administration and supervision can reduce the risk that the employer has introduced into the community. Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, and hence, reduce the risk of future harm.[^12]

A wrong that is only coincidentally linked to the activity of the employer and duties of the employee cannot justify the imposition of vicarious liability on the employer…Where vicarious liability is not closely and materially related to a risk introduced or enhanced by the employer, it serves no deterrent purpose...[^13]

Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer's enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.[^14]

The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires…Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business.[^15]

In determining the sufficiency of the connection between the employer's creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:

(a) the opportunity that the enterprise afforded the employee to abuse his or her power;

(b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee)…[^16]

What is required is a material increase in the risk as a consequence of the employer's enterprise and the duties he entrusted to the employee, mindful of the policies behind vicarious liability.[^17]

[42] In summary, to prove vicarious liability for an intentional tort that is not directly authorized by the employer, the plaintiffs must establish that the nature of the employer’s enterprise has created or enhanced a risk that the employee would commit the intentional tort such that the tort is closely and materially related to or significantly connected to that risk. This includes an examination of the opportunity that the employer’s enterprise has afforded the employee to commit the wrongful act, the extent to which the wrongful act may have furthered the employer’s aims and whether the employer has taken steps to reduce intentional wrongs through “efficient organization and supervision.”

[43] In the context of this action, one of the questions that can legitimately be asked on the issue of vicarious liability, is whether the manner in which Orca Bay organized and supervised its hockey operations created or enhanced the risk that a player would exact violence on the ice that overstepped the boundaries of professional hockey such as to become an assault or other wrongful act. This of course would include retributive violence.

[44] It would be relevant and material on the issue of vicarious liability to ask Mr. McCaw questions respecting the corporate culture at Orca Bay since he was the owner of that organization. This could include, but not be limited to, questions relating to the promotion or alternatively the control of violence by players for the Canucks, the promotion or alternatively the control of retribution for attacks on Canucks’ star players as well as instructions McCaw may have given or not given to management with respect to these issues in general. It would also include steps taken or not taken or instructions given or not given following the Naslund incident that would have created or enhanced the risk, or alternatively reduced the risk that players such as Bertuzzi would have exacted retribution and committed a wrongful act against Moore in a subsequent game.

[45] Again, although Burke and Crawford may be testifying at the trial, only McCaw can speak directly as the owner, chief executive officer and overall directing mind of the company as to the corporations culture with respect to the promotion of violence.

[46] The Plaintiffs also wish to examine McCaw about whether violence and retribution by players on his company’s payroll was something he believed was financially lucrative for the Canucks, and ultimately himself i.e. does it sell tickets? While it will be up to the trial judge whether to permit this line of enquiry it appears prima facie relevant to issues of vicarious liability (as well as punitive damages), particularly as the Supreme Court of Canada has stated that one of the factors in addressing vicarious liability is “the extent to which the wrongful act may have furthered the employer's aims.” Presumably one aim of Orca Bay was to make money.

Punitive Damages

[47] McCaw’s evidence is also material to the plea supporting claims for punitive damages in the statement of claim that during the three week period of threats to carry out retribution, “the Orca Bay defendants not only did nothing to stop such conduct, they encouraged it even in the face of warnings and cautions by the NHL.”

[48] In summary, I am satisfied from the plaintiff’s evidence that McCaw has material evidence to give at trial on issues of corporate negligence, vicarious liability and punitive damages and McCaw has chosen to provide no evidence on this motion to the contrary.

Questions Respecting McCaw’s Financial Interest in the Action

[49] The plaintiffs also wish to examine McCaw on his continuing financial interest in this lawsuit resulting from the contractual requirement that his sale price to the Aquilinis will be reduced by 50% of any judgment or settlement that Orca Bay must pay to Moore. While I am not satisfied this has any direct relevance to the issues in this action as defined by the pleadings, it may have some relevance to McCaw’s credibility, but that may depend on the evidence he gives in response to other questions. That however is for the trial judge to determine and it is not a matter I can address in this endorsement.

[50] The plaintiffs also want to examine McCaw on the requirement that he approve any settlement by Orca Bay. Consequent upon that, they also want to examine him on his role in the agreement among Orca Bay, Bertuzzi and Crawford to dismiss crossclaims and a third party claim in exchange for a proportional sharing of any damages awarded, referred to by the plaintiffs as a “secret agreement” because it was not immediately disclosed, and which forms the subject matter of endorsements by myself and by Justice Perell.[^18] Prima facie I fail to understand how questions to McCaw about any settlement could meet the test of relevance, but as this is trial evidence, the admissibility of this line of questioning would need to be made by the trial judge.

Conclusions on Ordering a Commission for the Taking of Evidence before Trial

[51] The motion is bona fide and for the purpose of compelling material evidence. The reason such motion is necessary is because McCaw refuses to attend at trial to give his evidence.

[52] In my view the plaintiffs have met the test for compelling evidence from McCaw on issues of direct negligence of Orca Bay, vicarious liability and punitive damages. At a minimum an order would be made to issue a commission and letter of request to the judicial authorities in the State of Washington to compel Mr. McCaw to attend as a witness for an examination under oath before trial at a convenient location in the State of Washington.

[53] Pursuant to rule 34.07(1)(f) I would order that the examination be videotaped for replay at the trial of this action in such manner as directed by the trial judge. Indeed “if the credibility of the witness becomes of importance at the trial, the fact that a videotape of the examination is available for the trier of fact, and not just a written transcript of the evidence, should assist the trier of fact in assessing the credibility of the evidence given by the witness on his or examination for discovery. That of course is not available if a videotape of the discovery has not been taken.”[^19]

JURISDICTION TO ORDER COMMISSION FOR THE GIVING OF EVIDENCE AT TRIAL

[54] This leads to the question whether there is jurisdiction to grant to the plaintiffs their primary relief requested – to issue a commission and letter of request to Washington judicial authorities to compel Mr. McCaw to attend as a witness at the trial in Toronto or alternatively by attendance at a convenient location in the State of Washington and give live evidence during the trial by videoconference or similar facility.

[55] Clearly there is no provision in Rule 34.07 or elsewhere in the rules of civil procedure that specifically authorizes either request.

[56] Mr. Danson argues that I should consider the application of rules 1.04 (1) and (2) as well as rule 1.08, which I discuss later in these reasons, and the principles of comity.

Principles of Comity

[57] The general principle of comity, as it relates to enforcing foreign letters of request, has been stated as follows by the Supreme Court of Canada in a case dealing with enforcing of letters rogatory from a foreign tribunal pursuant to section 43 (now section 46) of the Canada Evidence Act[^20] as follows:

[T]he jurisdiction of a nation within its own territory is necessarily exclusive and absolute, susceptible of no limitation not imposed by itself, but common interest impels sovereigns to mutual intercourse and an interchange of good offices with each other.

It is upon this comity of nations that international legal assistance rests. Thus the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation but out of mutual deference and respect. A foreign request is given full force and effect unless it be contrary to the public policy of the jurisdiction to which the request is directed...[^21]

[58] In that case, the court had noted that in general our courts had ordered examination “for the purpose of gathering evidence to be used at a trial” in a foreign jurisdiction, but decided that there was no reason it could not also be ordered at a pre-trial or discovery stage. While that is not directly relevant to the matter I must decide, the court set out the following broad principle:

I do not think it would be wise to lay down an inflexible rule that admits of no exceptions. The granting of an order for examination, being discretionary, will depend on the facts and particular circumstances of the individual case.[^22]

[59] The same broad principle has been stated as follows:

The enforcement of letters rogatory...is based upon international comity or courtesy proceeding from the law of nations...As a matter of principle Courts of justice of different countries are in aid of justice under a mutual obligation consistent with their own jurisdiction to assist each other in obtaining testimony upon which the rights of a cause may depend; so generally are individuals under a duty to give their testimony to Courts of justice in all inquiries where it may be material. Courts in Canada recognize, and have often said, that, in the interests of comity, judicial assistance should whenever possible be given at the request of Courts of other countries.[^23]

[60] Consistent with these broad principles of comity it might be said that absent public policy considerations to the contrary, Ontario should give effect to foreign letters of request for the taking of evidence just as Ontario would expect the foreign jurisdiction to enforce our letters of request.

Jurisdiction for a Commission to Order Attendance at Trial in Toronto

[61] The plaintiffs’ request to issue a commission and letter of request to the judicial authorities in Washington to compel Mr. McCaw to attend the trial of this action in Toronto must fail.

[62] No Ontario court would ever honour a request from a foreign court to require a Canadian citizen, resident in Ontario, to cross an international border to attend as a witness at a civil trial in a foreign country. The plaintiffs have found no case where that relief was ever granted, or for that matter ever refused or even discussed. There is a good reason for that. It would be preposterous for any country to make that request of another country, other than a request for extradition, which is a very different matter. Just as Ontario would not honour such a request, so should Ontario courts decline to make that request of another country. It makes no difference that such request would be made to a friendly country such as the United States, or that it would be to a state that borders Canada.

[63] It also matters not that McCaw, a U.S. resident, once owned Orca Bay, a corporation that carried on the business of professional hockey in Canada and that was subject to Canadian law or that Orca Bay attorned to the jurisdiction of the Ontario courts while under McCaw’s ownership. He also cannot be ordered to cross the border to testify in a civil action in Toronto simply because the team which was then owned by him is a party to this action or because actions taken by a player on that team while “under his watch” caused injury to the plaintiff, whether or not he had a role in promoting those actions.

The Advantages of Testimony at Trial by Videoconferencing over Testimony before Trial

[64] A request to issue a commission for the taking of evidence by videoconference link from the State of Washington live at the trial in Toronto is a more reasonable proposition. Such a request would not require Mr. McCaw to cross an international border. It would require his attendance to give evidence live by videoconference at the trial at presumably the same facility in the State of Washington where he would otherwise attend to give videotaped evidence before the trial.

[65] There would be numerous advantages to having McCaw give his evidence during the trial, rather than before trial, in the particular circumstances of this case. In my experience, most cases of taking evidence before trial involve a party examining his own witness, the witness is not opposed to the taking of the evidence and there are few if any issues as to the relevance of questions. In this case, McCaw is opposite in interest to the plaintiffs, he is opposed to the taking of his evidence in any form and once at examination, there are bound to be many questions refused on the grounds of relevance, settlement privilege or admissibility.

[66] There will need to be rulings by the trial judge during the examination of Mr. McCaw. For example:

(a) Mr. Danson intends on cross-examining McCaw, despite the fact that he is a witness called by the plaintiffs, on the basis that he is a hostile witness. That will require a ruling by the trial judge and typically can only made once an evidentiary foundation is set with preliminary questions and may depend on the answers to those questions. It is impossible to make such a ruling in advance for an examination before trial. Even if the examination were interrupted in order to obtain a ruling, I am not convinced that such ruling could made by any judicial officer other than the trial judge.

(b) I have noted that Mr. Danson may wish to examine on issues related to McCaw’s continuing financial interest in the outcome of this action. It was my preliminary view that such questions go only to issues of credibility and may depend on answers given to questions asked on substantive issues relating to negligence and vicarious liability. It will require a ruling by the trial judge whether to permit this line of questioning.

(c) It is unknown what direction the trial judge may give on permitting evidence or cross-examining on issues related to the “secret agreement” and as such it may not be possible to know in advance whether questions on that issue may be directed to McCaw.

(d) Given Mr. McCaw’s opposition to testifying in any manner at or before the trial of this action, there are bound to be questions refused. If the examination is conducted in advance of the trial there will be further interlocutory motions required in Ontario to determine whether the questions were proper, and even if brought some questions may need to be reserved to the trial judge. While it may be possible to direct questions to be answered but leave admissibility to the trial judge, this may require appropriate splicing and redacting of the videotape by the trial court. It could all be avoided if the examination was conducted by videoconference and the judge could make rulings as the questions were asked and in the context of the trial as a whole.

[67] I therefore conclude that there is a significant advantage to the fair and orderly conduct of the trial of this action if the examination of McCaw were live at trial by videoconference from the State of Washington. The question therefore is whether there is authority for me to order a commission and letter of request to the courts in Washington to enforce McCaw’s live attendance at the trial via videoconference link from Washington.

Jurisdiction for a Commission and Request to Order Attendance at Trial by Videoconferencing

[68] As noted, there is no provision in rule 34.07, or indeed in any of the rules of civil procedure, that permits me to make an order for a commission and letter of request for the taking of evidence at trial by means of videoconference. Rule 34.01(b) enables a commission and letter of request under rule 34.07(2) only for the taking of evidence before trial under Rule 36.

[69] Rule 1.08 does however make reference to the giving of evidence by videoconference and rule 1.08(1)4 specifically permits the taking of oral evidence at trial by means of videoconference. Rule 1.08 provides as follows:

1.08 (1) If facilities for a telephone or video conference are available at the court or are provided by a party, all or part of any of the following proceedings or steps in a proceeding may be heard or conducted by telephone or video conference as permitted by subrules (2) to (5).

4. At trial, the oral evidence of a witness and the argument.

Other subsections of rule 1.08(1) permit the conduct of a motion, an application, a status hearing, a reference, an appeal, a pre-trial conference or a case conference by videoconference.

[70] Rule 1.08(3) is a key provision and provides as follows:

(3) If the parties do not consent, the court may, on motion or on its own initiative, make an order directing a telephone or video conference on such terms as are just.

[71] It is therefore clear that the court can order that a party give oral testimony at trial by videoconference, even without the consent of the parties. The court’s order that McCaw give his evidence at trial by videoconference however cannot be enforced against McCaw, a resident of the State of Washington, without the assistance of judicial authorities in Washington.

[72] As previously noted, the only rule that provides for the issuing of a commission and letter of request to a foreign judicial authority to enforce this court’s order to attend for an examination is rule 34.07(2). Rule 34.01 sets out the types of examinations to which Rule 34, including rule 34.07(2), apply. That includes the taking of evidence before trial under Rule 36, but does not include the taking of evidence by videoconference at trial. There are no other rules that expressly permit an Ontario court to seek the assistance of foreign judicial authorities to enforce an order made under rules 1.08(1)4 and (3) directing the oral evidence of a witness at trial by videoconference.

[73] There are also no rules (or any statutes brought to my attention) that prohibit an Ontario court from seeking the assistance of foreign judicial authorities to enforce an order made under rules 1.08(1)4 and (3) directing the oral evidence of a witness at trial by videoconference.

[74] Therefore the rules provide for an order directing the taking of oral evidence at trial by videoconference with no means to enforce the rule if the witness to be examined resides outside of Ontario. Simply put, there is a right without a remedy.

[75] In my view this is precisely the situation that cries out for the application of rule 1.04(2) which reads as follows:

Where matters are not provided for in these rules, the practice shall be determined by analogy to them.

[76] Where there is a procedure authorized in the rules, in this case the right of the court under rules 1.08(1)4 and 1.08(3) to order that the oral evidence of a witness at trial be given by videoconferencing, but no specified means are set out to enforce that order as against a non-resident witness, and yet means exist to enforce other types of examinations of non-residents (such as examinations before trial by commission and letter of request under rule 34.07(2)), then it would be appropriate to analogize to rule 34.07(2) to provide for the means of enforcing an order for an examination under rule 1.08(1)4.

[77] That leads inexorably to the conclusion that an order to compel the oral evidence at trial by videoconferencing under rule 1.08 of a non-resident witness may be made by issuing an order for a commission and letter of request to the judicial authorities in the jurisdiction where the witness resides.

[78] Such order would request that the witness attend in the jurisdiction where he resides to give his evidence during the trial in Ontario by two-way videoconferencing facility.

[79] I also rely on rule 1.04(1) which provides:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[80] For reasons set out earlier in this endorsement, and in particular the numerous evidentiary rulings that will have to made during McCaw’s testimony in the particular circumstances of this case, it could result in innumerable delays to have the examination, if taken before trial, interrupted for rulings as to relevance, privilege and whether the witness is hostile. Indeed, as stated earlier some of these rulings can only be made by the trial judge and after an evidentiary foundation has been established. Even if some questions are relevant, it should be solely up to the trial judge to rule on admissibility based on the issues that have arisen and evidence given during the trial.

[81] For these reasons I have liberally construed rules 1.08 and 34.07 to permit a commission and letter of request to issue to compel McCaw to give evidence as a witness at trial by videoconferencing from Seattle in order to provide the most appropriate and expeditious means to present his evidence to the trial court and enhance the determination of this action on its merits.

[82] That rule 1.08(1)4 applies to witnesses residing outside of Ontario, and indeed outside of Canada, is supported by a number of decisions of our court which have made orders for the taking of live evidence at trial by videoconference from foreign jurisdictions[^24]. Those orders however involved witnesses willing to testify at trial by videoconference but who did not want to come to Ontario for the trial. Those motions were opposed, not by the witness, but by adverse parties who wanted the witness to testify in Ontario.

[83] I take some comfort in making this order by virtue of the wording of section 46 of the Canada Evidence Act[^25], the provision that permits Canadian courts to enforce letters of request from foreign jurisdictions and in particular section 46(2). Relevant portions of that section are as follows (emphasis added):

46. (1) If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court... the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined....

(2) For greater certainty, testimony for the purposes of subsection (1) may be given by means of technology that permits the virtual presence of the party or witness before the court or tribunal outside Canada or that permits that court or tribunal, and the parties, to hear and examine the party or witness.

[84] The plain reading of the emphasized portion of the Evidence Act suggests that an Ontario court could order an Ontario resident to testify by videoconference technology live during a trial in a foreign jurisdiction. If it were otherwise, how could the witness have “virtual presence” in the foreign jurisdiction and even more importantly, without the witness live by videoconference, how could the court “examine...the witness”? This could not be done by a videotape replay. By rules of comity, if an Ontario court could enforce a request from a foreign court, for example the State of Washington, to have a witness in Ontario examined live, by videoconferencing technology, during a trial in Washington, so could an Ontario court request that a court in Washington enforce its request that a witness in Washington testify live during a trial in Ontario.

[85] An order for a commission and letter of request for evidence live at trial by videoconferencing, while not directly addressed by any Canadian appellate authority brought to my attention, is supported by the broad language of the Supreme Court of Canada previously referenced which addressed the scope of the types of examinations that could be subject to an order for commission evidence and which bears repeating:

I do not think it would be wise to lay down an inflexible rule that admits of no exceptions. The granting of an order for examination, being discretionary, will depend on the facts and particular circumstances of the individual case.[^26]

[86] Mr. Danson also asks that I consider U.S. case law which suggests that American judicial authorities would enforce most foreign orders for a commission and letter of request, presumably including one for videotaped evidence during trial. I agree with Mr. Frankel however that expert evidence would be necessary to prove U.S. laws to determine whether Washington courts would enforce such a request. I do not however believe that it is necessary that I make a determination whether Washington courts would give effect to any order I may make requesting their assistance. That will be a matter for the plaintiffs to contend with when they attend before judicial authorities in Washington. My concern is whether under Ontario law there is jurisdiction to make and whether it is appropriate to make the order requested.

[87] I do however note that there are both U.S. federal rules and Washington State rules that deal with enforcing foreign letters of request. For example Federal Court rule 28 U.S.C. 1782 provides:

The district court of the district in which a person resides…may order him to give his testimony …for use in a proceeding in a foreign…tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign…tribunal…and may direct that that the testimony…be given…before a person appointed by the court…The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country…for the taking of testimony…

[88] While being careful not to interpret U.S. law or to determine what response a U.S. court may make to a letter of request in the circumstances herein, I have been provided with a decision of the U.S. Supreme Court which appears to broadly interpret U.S. Rule 1782. It was acknowledged that while a foreign court has control over the giving of evidence of both resident and non-resident parties to a proceeding, non-participants (for example non-party witnesses such as McCaw) may be beyond the foreign tribunal’s jurisdictional reach and would be unobtainable absent rule 1782.[^27]

[89] While I have not been directed to any U.S. jurisprudence considering letters of request for a U.S. resident to give evidence at a foreign trial by videoconferencing, I have been provided with an order issued by a U.S. District Court in California pursuant to 28 U.S.C. 1782. That order requires a named person to appear at the office of named attorneys in California at a specified date and time “or at such other date and time as may be necessary on 48 hours’ notice” to “give testimony” during a trial in the High Court of Justice of England and Wales and that his “testimony will at that time and place be transmitted via satellite link to proceedings in the United Kingdom where he will be subject to direct questioning and cross-examination by the parties to the action and the High Court”. The court ordered that the testimony “shall be taken in accordance with the laws and rules prevailing in proceedings before the High Court.”[^28]

[90] I have been provided with no context for that order and it appears to have been uncontested. It has no jurisprudential value except as an acknowledgment that 28 U.S.C. 1782 has been used to order testimony by videoconferencing from California during a trial proceeding in England. It provides limited, if any assistance to my determination of this matter.

[91] I conclude that I have jurisdiction to make an order for a commission and letter of request to the judicial authorities in the State of Washington to order McCaw to give testimony as a witness from the State of Washington by videoconferencing link during the trial in Toronto of this action.

[92] I also note that even if McCaw gives his evidence live by videoconferencing, the trial judge may at any time set aside that order by virtue of rule 1.08(4) which provides: “The judge or officer presiding at a proceeding or step in a proceeding may set aside or vary an order made under subrule (3).”

SHOULD A COMMISSION BE ORDERED FOR TESTIMONY BY VIDEOCONFERENCE?

[93] The factors to consider before ordering videoconferencing is set out in rule 1.08(5):

In deciding whether to permit or to direct a telephone or video conference, the court shall consider,

(a) the general principle that evidence and argument should be presented orally in open court;

(b) the importance of the evidence to the determination of the issues in the case;

(c) the effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) the importance in the circumstances of the case of observing the demeanour of a witness;

(e) whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) any other relevant matter.

[94] Factors (a) and (b) clearly relate to determining whether evidence should be provided live by videoconferencing rather than by having the witness attend the trial in person. As I cannot order McCaw to attend the trial in Toronto these factors have no relevance to the analysis. Factor (d), and to some extent (c), is also directed to a live versus videoconference attendance, however recent authorities have held that while live testimony may be preferable, given advances in videoconferencing technology, the court can still evaluate a witness and make findings of credibility.[^29] Factor (e) supports videoconferencing because McCaw’s refusal to testify as a witness at trial, and the court’s inability to compel him to attend trial in Toronto, constitutes “any other reason” he is unable to attend the trial in person.

[95] Factor (f) also supports an order for videoconferencing. For the plaintiffs, the inability to compel McCaw to attend the trial in person outweighs any inconvenience to McCaw attending a videoconferencing facility in Washington, near his home. It would be no more inconvenient for McCaw to attend the same facility to give his evidence during the trial by videoconference as it would be for him to attend the same facility before trial where his evidence would be videotaped. McCaw has given no evidence of inconvenience.

[96] The benefits of attending live by videoconference has been stated as follows and constitute “other relevant matters” as per factor (g):

Videoconferencing is an interactive technology. It is conducted in real time. The witnesses, who would attend a video conference site in the United States, would be able to see and hear what is going on in the courtroom. Those in the courtroom in Toronto would be able to see and hear the witnesses "live". Questions could be asked and answered. Examination in chief, cross-examination and redirect examination could be conducted live, though not in person.[^30]

[97] It has been stated:

Indeed, it seems to me that an order for evidence by video-conference… leaves ample scope to the trial judge to control proceedings at trial in such a way as to ensure that the trial is a fair one and that justice is properly rendered.[^31]

[98] One case has suggested that the test for giving witness testimony at trial by videoconferencing order should include a reference to the test for commission evidence as part of “other relevant factors”:

Add to these factors the test for commission evidence applied by the Court under rule 36, namely that the Court be satisfied that the application is bona fide, the issue is one which the Court ought to try, the witness have material evidence and there is a good reason why the witness cannot attend at trial.[^32]

[99] I have earlier in this endorsement determined that the test for commission evidence has been met. The request is bona fide and McCaw has material evidence to give. I also conclude that the test for requiring McCaw’s oral evidence to be given at trial by videoconferencing under rule 1.08 has also been met. The plaintiffs are entitled to a commission and letter of request directed to judicial authorities in the State of Washington to compel McCaw to attend a facility in the State of Washington either to be examined under oath before trial and videotaped for replay at trial or to give his evidence orally at trial by means of videoconferencing.

[100] For reasons stated earlier in this endorsement, and in particular at paragraph 66, the giving of McCaw’s evidence live at trial by videoconference is preferable in the circumstances of this case since the witness is adverse to the examining party and rulings will have to made by the trial judge on issues of whether the plaintiffs can cross-examine him as a hostile witness and there are areas of intended examination that will require rulings as to relevance and admissibility depending on the evidence that has developed during the trial to that point and depending on the evidence given by McCaw. It is also the order preferred by the plaintiffs and is the appropriate order to make in all the circumstances.

[101] Mr. Frankel raises a concern that a commission and letter of request for evidence at trial by videoconference is not specifically provided for in the rules and if I give a liberal interpretation to the rules and make such order by analogy to the rules for a commission for obtaining evidence prior to trial, every litigant would want to take advantage of that procedure. In my view that is not a valid concern to deny the plaintiffs relief herein. The relief granted was specific to the circumstances presented and in particular that it would require rulings by the trial judge whether counsel for the plaintiffs had a right cross-examine McCaw as a hostile witness and whether questions could be asked in certain contentious areas. None of these rulings could be made except in the context of the evidence as developed during the trial. Whether other situations will present themselves as appropriate for requesting a foreign court to order evidence at trial by videoconference is best left for consideration in future cases and in the circumstances specific to each case.

ANCILLARY TERMS FOR VIDEOCONFERENCING

[102] Rule 1.08(6) provides as follows with respect to arranging the videoconferencing facility:

Where the court permits or directs a telephone or video conference, the court may direct a party to make the necessary arrangements and to give notice of those arrangements to the other parties and to the court.

[103] All arrangements for videoconferencing facilities, both with the trial court in Toronto as well as an examination facility in the State of Washington shall be made by the plaintiffs. All expenses related to the videoconferencing facilities at both ends shall initially be borne by the plaintiffs, subject to such costs disposition as may be made by the trial judge. Also, there is no reason that prescribed conduct money should not be paid to McCaw. He is a non-party that the plaintiffs choose to examine as a trial witness and his wealth should not be a factor.

COSTS OF MOTION

[104] The plaintiffs were successful on this motion and are entitled to their costs. Even though they were unsuccessful in obtaining an order to compel McCaw to attend in Toronto to give evidence at trial, they were successful in obtaining an order to attend by either of the alternate methods – either by examination before trial and videotaped or live at trial by videoconferencing. I do not consider this a division of success. McCaw resisted all proposed methods for giving evidence and made no offer to provide his evidence by any method. While a commission and letter of request for the giving of evidence live by videoconference may have been novel and reasonable to resist, McCaw also resisted the more traditional remedy of giving commission evidence prior to trial.

[105] The motion was complex because of the requests for a commission and letter of request for evidence at trial in person or by videoconference. Although the plaintiffs’ lawyers spent far more time on the motion than McCaw’s lawyers, it was the plaintiffs that provided all of the evidence on the motion. The motion was important given the need to obtain the evidence of ownership when the corporation denied liability both for its own negligence and for vicarious liability and the need to establish what corporate culture was set and what actions were taken by ownership.

[106] The plaintiffs claim that three lawyers spent a total of 92.7 hours in extensive research on Canadian and U.S. law and analysis on the various issues in this action, preparing and amending a notice of motion, affidavits, several motion records, factums and authorities as well as the time of two lawyers at this five hour hearing. Costs shall be on a partial indemnity scale. Costs claimed on a partial indemnity scale consist of $28,230 fees, $2,121 disbursements plus HST for a total of $31,760. The fixing of costs is not a simple mathematical exercise of multiplying hours spent by an hourly rate. I must determine costs that are fair and reasonable in the circumstances and that would be within the reasonable expectation of the losing party. In my view, despite the novelty of two of the heads of relief, the costs as claimed are excessive for a motion of this nature and beyond any reasonable expectation of McCaw. As part of that, there should be some deduction for time spent on the unsuccessful attempt to compel McCaw to attend trial in Toronto. I would also disallow costs of research on issues of “legal theories of negligence, vicarious liability and punitive damages”. These issues are important, but the costs of research into those issues are more appropriately considered as costs in the action brought against those parties against whom negligence and vicarious liability are alleged and not costs of a motion to compel evidence of a non-party.

[107] In my view costs of $15,000, inclusive of disbursements and HST, are fair and reasonable and within what should have been the reasonable expectations of McCaw. Although McCaw’s costs are considerably less, all of the evidence on the motion was provided by the plaintiffs.

ORDER

[108] I hereby order as follows:

(1) A commission and letter of request to the judicial authorities in the State of Washington shall be issued requesting the issuance of such process as is necessary to compel John McCaw Jr. to attend at a suitable location in the State of Washington to be examined at the trial of this action by live two-way videoconferencing or other form of satellite transmission on such date after the commencement of the trial of this action on 48 hours’ notice.

(2) The plaintiffs shall at first instance be responsible for all costs associated with the videoconferencing facilities in both the State of Washington and at the trial in Toronto.

(3) The plaintiffs shall pay John McCaw Jr. attendance money payable in accordance with section 21 of Part II of Tariff A under the Courts of Justice Act.

(4) The laws of evidence of the Province of Ontario and the Ontario rules of civil procedure shall apply to the examination under the direction of the trial judge, and subject to such further or other order as may be made by the trial judge.

(5) John McCaw Jr. shall pay to the plaintiffs their costs of this motion within 30 days fixed in the sum of $15,000.00

Master R. Dash

DATE: March 24, 2014

[^1]: Interprovincial Summonses Act, R.S.O. 1990, Chapter I.12 [^2]: Maynard v. Maynard, [1947] O.W.N. 493 (H.C.J. – Master) at para. 3 [^3]: Maynard, supra, at para. 5. [^4]: Simpson v. Vanderheiden, [1985] O.J. No. 2426 (H.C.J.) at para.21 [^5]: Metalsac Ticdaret Ve Sanayi Ltd. STI v. Taylor Steel Inc., [2001] O.J. No. 271 (S.C.J.) [^6]: Wright v. Wasilewski, 2001 CanLII 28026 (ON SC), [2001] O.J. No. 248, 52 O.R. (3d) 410 (SCJ – Master) at para. 10 [^7]: Simpson v. Vanderheiden, supra, at para. 24 [^8]: Proietti v. Raisauda, [1992] O.J. No. 662 (O.C.G.D.) at p. 4. In that case the defendant wanted to examine one of the plaintiffs by commission evidence as he had left the jurisdiction. In addition to losing a trial date Meehan J. also considered that the defendant had already secured the plaintiff’s examination for discovery evidence. [^9]: Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] S.C.J. No. 35, [1999] 2 S.C.R. 534 [^10]: Ibid, para. 10 [^11]: Ibid, para. 32 [^12]: Ibid, para. 33 [^13]: Ibid, para. 36 [^14]: Ibid, para. 37 [^15]: Ibid, para. 41(2) [^16]: Ibid, para. 41(3) [^17]: Ibid, para. 42 [^18]: Moore v. Bertuzzi, 2012 ONSC 59, 2012 ONSC 597, [2012] O.J. No. 665, 110 O.R. (3d) 124, affirmed 2012 ONSC 3248, [2012] O.J. No. 2485, 110 O.R. (3d) 611 [^19]: Midland Resources Holding Ltd. v. Shtaif, 2009 CanLII 67669 (ON SC), [2009] O.J. No. 5216, 99 O.R. (3d) 550 (S.C.J.) at para.25. See also paragraph 20 and 27. Although Justice Newbould was discussing the videotaping of an examination for discovery outside of Ontario, the rationale for videotaping applies equally to evidence taken before trial under Rule 36. [^20]: Canada Evidence Act, R.S.C. 1985, c. C-5. This provision, as well as similar provisions in section 60 of the Ontario Evidence Act, R.S.O. 1990, c. E.23, provide the statutory authority for a Canadian court to enforce letters of request from foreign jurisdictions. [^21]: R. v. Zingre, 1981 CanLII 32 (SCC), [1981] S.C.J. No. 89, [1981] 2 S.C.R. 392 at p. 7 [^22]: Ibid, at p,. 8 [^23]: Gulf Oil Corp. v. Gulf Canada Ltd., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39 at p. 12 [^24]: See for example Archambault v. Anstalt Kalandi, [2006] O.J. No. 3428, affirmed [2007] O.J. No. 258 (S.C.J.); Wright v. Wasilewski, 2001 CanLII 28026 (ON SC), [2001] O.J. No. 248, 52 O.R. (3d) 410 (SCJ – Master); Pack All Manufacturing Inc. v. Triad, [2001] 5882 (S.C.J.); [^25]: Canada Evidence Act, R.S.C. 1985, c. C-5. A similar provision in section 60 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 also provides for the enforcement of foreign letters of request, but without subpargarph 2. It provides that where “the obtaining of the testimony in or in relation to an action…pending in or before such foreign court…of a witness out of the jurisdiction thereof and within the jurisdiction of the court or judge so applied to, such court or judge may order the examination of such witness before the person appointed, and in the manner and form directed by the commission…” [^26]: R. v. Zingre, supra, at p. 8. Although the Supreme Court used this language to expand the use of commission evidence from the giving of evidence before trial to examinations for discovery, the principle stated is quite broad. [^27]: Intel Corporation v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) [^28]: Order of the Hon. Victor B. Kenton, United States District Court, Central District of California, Benfield Greig Limited v. David Kirkpatrick, May 21, 2003, case no. 03-00047-VBKx. [^29]: See Pack All Manufacturing Inc. v. Triad, supra at paras. 6 and 7; Midland Resources Ltd. v. Sharif, supra, at paras.20, 22, 25 and 26. [^30]: Wright v. Wasilewski, supra at para. 6 [^31]: Pack All Manufacturing Inc. v. Triad, supra at para. 9 [^32]: Wright v. Wasilewski, supra at para. 10. Also see Archambault v. Anstalt Kalandi, supra, at para. 33.