Bothwell-Accurate v. Peel Condo, 2015 ONSC 278

COURT FILE NO.: 03-CV-245647CM

MOTION HEARD: April 8 & August 27, 2014

SUPERIOR COURT OF JUSTICE - ONTARIO

Re: Bothwell-Accurate Co. Ltd.

Plaintiff

v.

Peel Condominium Corporation No. 16

Defendant

BEFORE: Master Thomas Hawkins

COUNSEL: Robert F. Tighe for moving plaintiff

F (416) 863-9504

Puja Walia for responding defendant

F (416) 489-7794

REASONS FOR DECISION

Nature of Motion

[1] The purpose of the present motion is to resolve an impasse between the parties as to who should be the witness on the continued examination for discovery of the defendant.

[2] This action is in case management before me. Under subrule 77.04 (1)(e) I have jurisdiction to make orders, impose terms and give directions as is necessary to carry out the general purpose of Rule 77. One such purpose is to assist the parties in moving an action expeditiously to trial or other resolution.

[3] Most disputes over who should be examined for discovery on behalf of a corporation are resolved by a motion by the corporation under subrule 31.03(2), brought before the examination for discovery of the corporation begins. No such motion was brought in this action because, initially, there was no dispute between the parties as to who should be the discovery witness for the defendant.

[4] The initial discovery witness for the defendant was, by agreement, Simon Mayfield. Mr. Mayfield was examined for discovery on behalf of the defendant on October 18, 2012. I say that Mr. Mayfield was the discovery witness for the defendant by agreement in part because the plaintiff did not have the right to examine Mr. Mayfield on behalf of the defendant on October 18, 2012. At that time, Mr. Mayfield was not an officer, director or employee of the defendant. That is true at the present time as well. Mr. Mayfield is still not an officer, director or employee of the defendant.

[5] In an affidavit sworn in support of this motion a law student in the office of the lawyers for the plaintiff states that the notice of the examination for discovery for the defendant simply referred to “a representative” of the defendant. This notice of examination did not nominate any particular person to be the defendant’s discovery witness. It was the defendant who selected Mr. Mayfield as its discovery witness. The plaintiff did not object and proceeded to examine Mr. Mayfield for some five hours on October 18, 2012.

[6] The defendant’s decision to put forward Mr. Mayfield as its discovery witness makes sense. Mr. Mayfield was the building director of the defendant at the time of a fire which damaged parts of the defendant’s building including the roof. This fire was one of the events giving rise to this action. Mr. Mayfield was a witness to the fire and, following the fire, was involved with some of the repair and replacement work on the roof and other parts of the defendant’s building which the plaintiff carried out. There is a dispute between the parties as to the quality of the work which the plaintiff performed.

[7] As I have said, Mr. Mayfield was examined for discovery on behalf of the defendant on October 18, 2012. Mr. Mayfield’s examination did not conclude that day. That being so, on September 30, 2013 William Greenley, one of the plaintiff’s lawyers, telephoned Michael Campbell, one of the defendant’s lawyers, to make arrangements to resume and conclude the examination for discovery of the defendant. Mr. Greenley says that during this telephone conversation, he and Mr. Campbell agreed that Mr. Mayfield would be the defence witness on the continued examination for discovery of the defendant.

[8] In an email sent to Mr. Campbell later the same day, Mr. Greenley confirmed this telephone conversation and specifically, the fact that Mr. Campbell would produce Mr. Mayfield as the defence witness on the reattendance on discovery. Mr. Campbell did not immediately respond to this email.

[9] There was another exchange of emails between Mr. Greenley and Mr. Campbell on November 19 and 21, 2014 in which Mr. Campbell stated that he had made inquiries about the availability of Mr. Mayfield and that he would get back to Mr. Greenley.

[10] There was a further exchange of correspondence in December 2013 and January 2014. On January 3, 2014 Mr. Greenley wrote Mr. Campbell stating that on September 30, 2013 Mr. Campbell had agreed to produce Mr. Mayfield for a re-attendance. He also enclosed a notice of examination stating that Mr. Mayfield was to be examined for the defendant on March 3, 2014. Mr. Campbell did not immediately reply.

[11] On February 26, 2014 Mr. Greenley sent an email to Mr. Campbell inquiring if Mr. Mayfield would be produced on March 3, 2014. Mr. Campbell responded later the same day by email advising that Mr. Mayfield would not be produced on March 3, 2014. He further stated that he intended to respond “fulsomely” to Mr. Greenley’s January 3, 2014 letter in separate correspondence.

[12] In a letter also dated February 26, 2014 Mr. Campbell wrote to Mr. Greenley advising that he (Mr. Campbell) had agreed to a continued examination for discovery of the defendant but that he had said nothing to the effect that the defendant would produce Mr. Mayfield as opposed another representative. This was the first time Mr. Campbell denied that he had agreed with Mr. Greenley to produce Mr. Mayfield for the continued examination for discovery of the defendant. This denial came almost five months after the September 30, 2013 Greenley/Campbell telephone conversation.

[13] When cross-examined, Mr. Campbell said that he did not take any notes of the September 30, 2013 telephone conversation. He also conceded that generally speaking, it is a good and proper practice after a phone call to confirm the content of that phone call in writing shortly thereafter. Mr. Campbell did not do this.

[14] On the issue of whether or not Mr. Campbell agreed that Mr. Mayfield would be produced on the continued examination for discovery of the defendant, I prefer the evidence of Mr. Greenley, contemporaneously confirmed as it was by email. I do not imply that Mr. Campbell is not being frank with this court. I am simply of the view that Mr. Greenley’s version of events is more reliable because it was promptly confirmed in an email that was not denied or corrected for almost five months.

[15] In argument before me, defence counsel raised several objections to Mr. Mayfield as a discovery witness. He said that Mr. Mayfield gave evasive answers when examined for discovery on October 18, 2012. Mr. Campbell was present throughout that five hour examination. At the end of that session Mr. Campbell must have known what sort of a witness Mr. Mayfield was. In an affidavit which he swore in response to this motion Mr. Campbell did not complain that Mr. Mayfield gave evasive testimony on October 18, 2012. If Mr. Campbell felt that Mr. Mayfield was not suitable as a witness on the continued examination for discovery of the defendant because Mr. Mayfield has a propensity to give evasive answers, I expect that Mr. Campbell would have rejected out of hand any proposal that Mr. Mayfield be the defence witness on the continued examination. Mr. Campbell did not do so.

[16] I therefore reject this objection to Mr. Mayfield as a continued defence discovery witness.

[17] Next, defence counsel submitted that if Mr. Mayfield is the continued discovery witness for the defence, Mr. Mayfield will not personally know the answers to many questions put to him. He will therefore have to give many undertakings to answer question which will saddle the defence with an onerous task, defence counsel submits.

[18] The defendant proposes that the defence discovery witness be Audrey Mills. Ms. Mills is currently the owner of a unit in the defendant’s building. She has lived in the building since the 1970’s. She is currently a member of the defendant’s board of directors.

[19] In my view, the objection that on the continued examination for discovery, Mr. Mayfield will have to give many undertakings to answer questions he cannot answer from his personal knowledge is a speculative objection. We do not currently know what questions plaintiff’s counsel will put to the defence discovery witness. I cannot say that Mr. Mayfield will have to give more undertakings to answer questions than Ms. Mills would have to give any more than I can say the reverse. I simply do not know which of the two will have to give more undertakings.

[20] Lastly, defence counsel submits that having Mr. Mayfield as the defence discovery witness will put the defendant to onerous expense. Mr. Mayfield charged the defendant an hourly fee for the time he spent preparing to be examined for discovery on October 18, 2012, being examined on that day and gathering the information needed to answer the undertakings which he gave that day.

[21] This expense objection was not raised in Mr. Campbell’s responding affidavit. Before me defence counsel submitted that at least some members of the defendant’s current board of directors are prepared to devote time to assisting on the continued examination for discovery of the defendant at no charge to the defendant for their time.

[22] I find it difficult to weigh this expense objection because it was not raised in Mr. Campbell’s affidavit. I do not know how many undertakings will be given on the continued examination or how long it will take to answer those undertakings. This expense objection is full of sheer speculation.

[23] Nothing in my disposition of this motion should be understood as preventing current members of the defendant’s board of directors from assisting with that examination (by helping to answer undertakings, for example) at no charge to the defendant.

[24] The expense objection to Mr. Mayfield can be dealt with by making my order disposing of this motion subject to the following term. Any sum which the defendant pays to Mr. Mayfield for time which Mr. Mayfield spends preparing for his continued examination or discovery on behalf of the defendant, attending at that examination, and preparing answers to undertakings given at that examination as well as travel expenses, meals and hotel accommodation (if any) which Mr. Mayfield charges to the defendant are deemed to be a proper Tariff A disbursement item of the defendant and are reserved to the trial judge. The trial judge may allow the defendant to recover from the plaintiff all of such disbursement sums, some of such disbursement sums, or none of such disbursement sums.

[25] For all these reasons, I order that Mr. Mayfield be the witness examined on behalf of the defendant at the continued examination for discovery for the defendant, subject to the term set out in paragraph [ 24 ] above.

[26] The plaintiff has been successful on this motion and is entitled to the costs of it. I fix those costs at $5,000 and order the defendant to pay such costs to the plaintiff within 30 days.

(original signed) ___

Date: January 21, 2015 Master Thomas Hawkins