SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-188
DATE: 20140429

RE: CRAIG GAMMIE Applicant

v.

TOWN OF SOUTH BRUCE PENINSULA Respondent

BEFORE: THOMPSON J.

COUNSEL:
S. Gadbois, for the Applicant
T.J. McGurrin, for the Respondent

E N D O R S E M E N T

Thompson J.

[1] Counsel for the Municipality seeks leave to summons and examine Angie Cathrae as a witness.

[2] Angie Cathrae is the Clerk of the Municipality.

[3] In his Application Craig Gammie is seeking to have the Court quash Resolutions R-793-2012 (Nov. 20, 2012) and R-423-2013 (Aug. 20, 2013).

[4] In combination, the Resolutions prohibited the Applicant from essentially attending any official meeting sponsored by the Municipality; attending any municipal Council meetings including Committee meetings; from physically attending at the Municipal Town Hall for any reason; restricting how he could file nominations papers to stand as a candidate for municipal office; and prohibiting him from contacting or interacting with Municipal staff with the exception of the Municipality’s Administrator.

[5] A brief history of the litigation to date is as follows:

(i) Mr. Gammie, as a self-litigant, issued the Application on Sept. 5, 2013;

(ii) Mr. Gammie retained counsel, Mr. Gadbois, who filed a Notice of Appointment of Lawyer on Jan. 22, 2014. He had been retained in November 2012;

(iii) On January 10, 2014, I signed a consent “basket order” setting out litigation timetables. That order stated that the Municipality was to file responding material by Feb. 14, 2014. There is no issue that the Municipality essentially complied with the Order, serving and filing affidavits by Jacqueline Farrow-Lawrence (Administrator for the Municipality), John Close (Mayor of the Municipality) and Michael McMillan. Conspicuous by its absence was any responding affidavit of Angie Cathrae (Clerk of the Municipality), who by all appearances was a significant witness to events leading to, and a possible contributor to, the Municipality’s passing of the Resolutions in question;

(iv) In accordance with the Order of Jan. 10, 2014, counsel arranged for the cross-examinations of the deponents of the affidavits filed on each of the parties’ behalf. Those cross-examinations have taken place;

(v) Angie Cathrae, although requested by the Municipality to provide an affidavit, presumably supporting their position, declined to do so prior to the commencement of cross-examinations of those who did provide affidavits;

(vi) Counsel for Mr. Gammie expressed an interest in examining Angie Cathrae (and other possible witnesses) as non-party witnesses prior to the commencement of the cross-examinations of the deponents of the affidavits;

(vii) Counsel for Mr. Gammie, subsequent to the cross-examinations of the 4 affiants advised counsel for the Municipality that he no longer had a desire to examine anyone as a non-party witness including Angie Cathrae;

(viii) Angie Cathrae has now apparently determined that, although she will not provide an affidavit, she will consent to being examined as a non-party witness by counsel for the Municipality (and thereby making herself available for cross-examination by counsel for Mr. Gammie);

[6] If this was a case of the Municipality seeking leave to file an affidavit of Angie Cathrae after cross-examinations had been completed, such a request would have little chance of success. In this hypothetical situation of attempting to file an affidavit by Angie Cathrae, that hypothetical court would have been in an enviable position. At least that court would have known what the proposed evidence was.

[7] What then am I to take from the Municipality’s desire to now examine their own employee who had previously declined to author an affidavit (and still maintains that position) after all cross-examinations have been completed on filed affidavits in support of the parties’ positions?

[8] Is it?:

(i) that the Municipality, thwarted in its attempt to propound its position by having its own employee swear an affidavit supporting its position, was relying upon Mr. Gammie to gratuitously provide it with the evidence it desired by examining Angie Cathrae and then permitting the Municipality to cross-examine their employee (leading questions are permitted in cross-examination); or

(ii) that thwarted by the refusal of its employee to provide it with an affidavit, it was always the intent of the Municipality to examine its own employee to seek evidence upon which it would rely in this Application. If this was the case, where is the evidence of such intent? There is none; or

(iii) that counsel for Mr. Gammie was a superior tactician and had somehow snookered counsel for the Municipality? If so, the Municipality contends that in the interests of justice the mistakes of counsel should not be visited on it. An admirable mea culpa by counsel! Determinative of this issue is the fact that both counsel express the utmost respect for each other and deny that any such behavior could have occurred; or

(iv) that counsel for the Municipality, having seen holes punched in the affidavits it relied upon during cross-examinations of its supportive affiants, now wishes to plug the holes in the leaking dike.

[9] Either option (i) or option (iv) could apply.

[10] If option (i) is applicable, then the Municipality gambled and it lost. Mr. Gammie chose not to assist the Municipality in its quest. Such is life.

[11] If option (iv) is applicable, then the Municipality faces an uphill climb in its request for leave to examine Angie Cathrae. The Municipality had to know of the probable importance of her evidence – after all she is an integral part of the Municipality’s administration. They had to have known whether she was a witness to the events central to the passage of the attacked Resolutions.

[12] Of course, what all this leads to is the question --- what is the expected evidence of Angie Cathrae?

[13] What does the material filed in support of this motion by the Municipality reveal?

(i) The affidavit of Jacqueline Farrow-Lawrence:

“Angie Cathrae is the Clerk of the Town and is clear based upon the cross-examinations completed that Angie Cathrae has relevant evidence and was a firsthand witness to several events on which evidence was given at cross-examinations, including evidence introduced by the Respondent during his cross-examination”. [sic]

“I believe that Ms. Cathrae is first hand witness to matters and events addressed during cross-examinations, including events which Mr. Gammie raised at his cross-examination”. [sic]

(ii) While the Court appreciates being advised as to what Ms. Farrow-Lawrence’s opinion is, that information reveals nothing about what facts Ms. Angie Cathrae is expected to testify to. It is for the Court to assess Ms. Cathrae’s proposed testimony, not Ms. Farrow-Lawrence. It would be helpful if the Court knew what the proposed evidence is.

(iii) No evidence of any nature was ever preferred as to what Ms. Angie Cathrae’s evidence would be – no written or other statements from Ms. Cathrae – just some speculation.

(iv) The Municipality’s Confirmation of Motion form advised that I should refer to its Motion Record, the relevant contents of which I have already referenced.

(v) Of note, neither of the affidavits of Jacqueline Farrow-Lawrence (her first affidavit on which she was cross-examined) or John Close (Mayor) were filed with the Court. Consequently, the contents of those affidavits are unknown to this Court.

(vi) Reference was made to the transcripts of Mr. Gammie. Apparently Mr. Gammie related his version of certain events during cross-examination. Counsel for the Municipality asserts that Mr. Gammie’s version of events differs considerably from what Ms. Cathrae would say. Unfortunately for the Municipality, the assertions are not evidence.

[14] The Divisional Court in First Capital Realty v Centrecorp Managements Services Ltd. Set out the criteria a party seeking to adduce evidence after cross-examinations have been completed must meet. That criteria is as follows:

(i) Is the evidence relevant?

(ii) Does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time?

(iii) Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?

(iv) Does the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

[15] Has the Municipality met the established criteria?

(i) Difficult to know as the proposed evidence is unknown.

(ii) One suspects that the proposed testimony might address issues testified to by Mr. Gammie, but there is no evidence to support this possibility except the assertions of counsel which of course are not evidence.

(iii) Again hard to assess because of the lack of evidence.

(iv) Not really. Any explanation even suggesting that Mr. Gammie would gratuitously plug the gaping hole visited on the Municipality by its employee refusing to give them the evidence they so wanted does not fall on sympathetic ears. In the alternative, if the Municipality realizes, after cross-examinations, that its position has less than a solid foundation and now wishes to shore that foundation up, simply put, it is too late – the horse is out of the barn. To permit the Municipality to bring the evidence of Angie Cathrae in the back door would be permitting the Municipality to sandwich Mr. Gammie. Splitting one’s case is not permissible.

[16] Mr. Justice Stinson, in Brock Home Improvement Products Inc. v Corcoran stated:

“Rule 39.02(1) and (2) are an important and integral part of the procedural code governing the conduct of motions and applications. These rules are designed to place finite limits on the evidentiary element of those proceedings, an element that is all too frequently time-consuming, expensive and drawn-out. These rules oblige the parties to consider the issues and to put all relevant evidence forward before embarking upon cross-examination of the opposite party’s witnesses. This is the approach mandated by the rules to achieve the “just, most expeditious and least expensive determination” of motions and applications. Consistent with that approach, it is only in exceptional cases that resort should be had to rule 39.02(2).” [my emphasis]

[17] The Municipality, having apparently decided not to press one of its key witnesses to assist it in providing all relevant evidence to the Court in the first instance, cannot now try to alter its previously chosen path.

[18] Leave to summons and examine Angie Cathrae is denied.

[19] Obviously, Mr. Gammie is entitled to his costs on this motion. The only issue is the quantum.

[20] If the parties cannot agree as to the quantum, I will receive cost submissions of two single-spaced pages plus counsel’s Bill of Costs and accompanying time dockets by May 7, 2014 at 12 noon.

Thompson, J.
DATE: April 29, 2014

COURT FILE NO.: 13-188
DATE: 20140429

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CRAIG GAMMIE

v.

TOWN OF BRUCE PENINSULA

BEFORE: THOMPSON

COUNSEL:
S. Gadbois, for the Applicant
T.J. McGurrin, for the Respondent

ENDORSEMENT

Thompson J.

DATE: April 29, 2014