COURT FILE NO.: 04-CV-026293

DATE: 25/08/2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OZ MERCHANDISING INC. et. al., Plaintiffs

AND:

CANADIAN PROFESSIONAL SOCCER LEAGUE INC., et. al., Defendants

BEFORE: MASTER MACLEOD

COUNSEL: Andrew Ferguson and Haiyan Zhang, for the plaintiffs Jane M. Bachynski, for the defendants, Eastern Ontario District Soccer Association (EODSA) and Ontario Soccer Association (OSA) Brent Craswell, for the defendant Canadian Soccer Association (CSA) Colin Holland, for the defendants Canadian Soccer League Inc. (CSLI), Ira Greenspoon, Vincent Ursini, Cary Kaplan and Stan Adamson

HEARD: August 25th, 2015

ENDORSEMENT

[1] This is one of Ottawa’s longest running civil litigation files. The action was started in 2004 and the events in question date from 2003 although subsequent events also figure in the “Further Fresh as Amended Statement of Claim” dated December 14, 2012.

[2] Not surprisingly there have been many motions and several changes of counsel. Currently the action is proceeding in accordance with a firm timetable set by my colleague Master Roger (as he then was). In fact there are several motions scheduled between now and January. The plaintiff is nevertheless required to set the action down for trial by December 31, 2015.[^1]

[3] The motion before the court today was a motion by the plaintiff for several heads of relief. One of those matters, directions regarding examination of Mr. Ursini, had been settled and the parties had attempted to get a consent order at express motions court on August 7th. Justice Sheard adjourned it to be spoken to today because it was part of the plaintiff’s larger motion and because she was concerned that a piecemeal order might offend the timetable put in place by Master Roger. I granted the order.

[4] The following issues were argued:

a. A motion to examine Marc Thibault, a non party and former officer of EODSA;

b. A motion to examine Kevan Pipe, a non party and former officer of CSA;

c. A motion to amend the claim to remove Omur Sezerman as a plaintiff in his personal capacity and to delete his name from the title of the proceedings.

[5] The plaintiff also sought an increase in the time allowed for discovery, costs and other consequential relief.

[6] I commend Mr. Ferguson who was brought into this matter to argue the motion. He made valiant efforts to persuade the court but for the reasons that follow, the request to examine non parties must be dismissed. As will also be apparent I am prepared to permit the plaintiff to withdraw any personal claim against the defendants but I agree there should be terms along the line proposed by the defendants.

Examination of Non Parties

[7] Common law systems take various approaches to discovery. In England or Australia, oral discovery is rarely permitted whereas in the United States widespread use of depositions is freely available. Ontario takes a middle position. Oral discovery of parties is available as of right in civil proceedings (though now subject to time limits and the need for a discovery plan) but discovery of non-party witnesses is allowed only with leave. Leave is only to be granted in certain circumstances.

[8] Rule 31.10 reads as follows:

(1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation. R.R.O. 1990, Reg. 194, r. 31.10 (1).

(2) An order under subrule (1) shall not be made unless the court is satisfied that,

(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not,

(i) unduly delay the commencement of the trial of the action,

(ii) entail unreasonable expense for other parties, or

(iii) result in unfairness to the person the moving party seeks to examine.

[9] The conjunctive test reflects the intention that this remedy be granted sparingly and not routinely. The moving party must first satisfy the court that that party has been unable to obtain the information from the other party through the discovery process. If that is the case then the court must consider the other tests in subrules (b) and (c).

[10] Neither of the proposed witnesses appeared at the motion nor were any of the counsel present instructed to speak for them. It must therefore be presumed that the witnesses themselves neither opposed the motion nor sought specific terms. No evidence was before me concerning prejudice or hardship to the witnesses. The defendants on the other hand objected vociferously. As each of the witnesses is in a slightly different position, I must consider each separately.

Marc Thibault

[11] There is no doubt that Mr. Thibault may have relevant information. He was in office at the relevant time. The plaintiff cannot meet the first branch of the test however because when Mr. Monaghan was examined on behalf of EODSA he undertook to obtain information from Mr. Thibault and in fact he has done so in answer to undertakings. There were a number of questions that Mr. Monaghan refused to answer or refused to put to Mr. Thibault but that is because those questions were objected to as improper.

[12] I agree with counsel for the defendant that it is not reasonable to request an examination of Mr. Thibault to pose those questions to him without first obtaining a ruling on the propriety of the questions. A refusals motion is the proper procedure. On such a motion if the court rules that the questions were proper notwithstanding the defendant’s res judicata argument then Mr. Monaghan would be ordered to attempt to obtain the information.

[13] I do agree with counsel for the plaintiff that the test in the rule could be satisfied in circumstances where the party is prepared to give undertakings but that process is clearly shown to be impractical. There could be times when the number of undertakings is so high or the responses so inadequate that the court should find that the examining party cannot reasonably or practically obtain the information through discovery of a party. The evidence before the court on this motion does not persuade me this extremely high threshold has been met. The motion to examine Mr. Thibault must be dismissed though this is without prejudice to renewing it following a refusals motion if the test can subsequently be met.

[14] I should note that in an effort to promote efficiency and avoid delay, the defendant is prepared to obtain the requested information from Mr. Thibault and to provide his answers subject to Rule 34.12 (2). That rule effectively permits answers under protest which may not be used at a hearing before a ruling is obtained from the court. This would still require a motion (though it could be made at trial) but the examining party has the benefit of knowing what the answer is and whether it is worth pursuing.

[15] I realize there is also an issue of follow up questions but that can be addressed at a future case conference if the parties cannot work it out. No such hypothetical questions are before me on this motion although the need to ask follow up questions was raised in argument as a factor I should consider.

Kevan Pipe

[16] The situation with Mr. Pipe is somewhat different because for the most part counsel for CSA refused to give undertakings to obtain information from Mr. Pipe. Those questions were refused on the basis of relevance because there is an employee of CSA who still works there and who was there at the relevant time.

[17] It is also different because there is an e-mail from Mr. Santini which appears to object to an attempt by the plaintiff’s counsel to speak to Mr. Pipe directly. Read in context however I am satisfied that Mr. Santini’s e-mail was in response to the letter sent to Mr. Pipe which asked him to voluntarily submit to “examination”. Mr. Santini was objecting to what he viewed as an attempt to examine Mr. Pipe as “another examination of a CSA representative”

[18] Obviously if counsel for CSA both refused to give undertakings to contact a witness with relevant information and then asserted it would be improper to contact the witness directly, it would be easy for the plaintiff to show it was unable to obtain the information through the discovery process. Here the information which may be known to Mr. Pipe may also be known to other employees and is therefore potentially available. The evidence does not persuade me that Mr. Pipe will not co-operate with counsel for CSA if asked to do so.

[19] The question of whether or not the refusal to undertake to put questions to Mr. Pipe was proper or not should be determined first. Again, I agree that a refusals motion is the proper vehicle for this and so the motion to examine Mr. Pipe is premature.

Amendment of the Claim to remove Mr. Sezerman

[20] When the action was commenced by notice of action, Mr. Sezerman included a personal claim for defamation. The subsequent iterations of the statement of claim did not contain any particulars of a personal defamation action. There is certainly no personal claim for defamation contained in the current pleading.

[21] Despite this, when Mr. Sezerman was examined for discovery and his previous counsel was still acting for him, he continued to assert that he was claiming for damage to his reputation. His counsel also confirmed that this was the case.

[22] Now Mr. Sezerman wishes his name removed as a plaintiff and he confirms that he is not pursuing personal defamation damages. There is a problem however because there are three other plaintiffs. OZ Merchandising Inc. is a corporation partially owned by Mr. Sezerman. He is the directing mind but there is no doubt OZ Merchandising Inc. is a corporate entity with its own legal personality. “Ottawa Wizards” however does not appear to be incorporated. In the pleading it is said to be a sports team owned by the corporate plaintiff. OZ Dome Soccer Club is described as an “unincorporated club operated independently of the Plaintiff OZ Merchandising Inc.”. It is an open and unanswered question as to whether or not Ottawa Wizards and OZ Dome Soccer Club are legal entities with capacity to sue.

[23] The defendants are prepared to consent to the amendment of the claim to delete Mr. Sezerman as a named plaintiff but they want terms. Firstly, EODSA seeks costs thrown away in the amount of $15,000.00. Secondly the defendants who have not yet examined Mr. Sezerman wish an undertaking that he will be produced for discovery on behalf of the remaining plaintiffs should they require it. Thirdly, the defendants seek a guarantee that Mr. Sezerman will remain personally liable for costs if costs are awarded against either of the apparently unincorporated plaintiffs.

[24] In my view all of these terms are completely reasonable though I am not persuaded that the additional cost of defending against the unparticularized and unidentified defamation claim can be readily segregated or approaches $15,000.00. While some questions were posed about this claim on discovery, there is no real evidence of any steps that were taken because Mr. Sezerman was a plaintiff that would not have been necessary had there only been three plaintiffs from the beginning. I accept however that some incremental cost may have been incurred.

[25] Accordingly, the plaintiff Sezerman may have leave to withdraw as a plaintiff and the title of the proceedings may be amended to delete him. Leave is granted on the following terms:

a. He shall pay costs to the defendant EODSA in the amount of $2,000.00;

b. He will remain liable to the defendants for any costs awarded against either Ottawa Wizards or OZ Dome Soccer Club unless any such costs awards are paid;

c. He will continue to make himself available for discovery on behalf of the remaining plaintiffs at the request of the defendants should that be necessary.

Conclusion & Costs

[26] As set out above, the motion in respect of examination of Mr. Ursini was granted on terms and on consent. The motion to examine Mr. Thibault and Mr. Pipe is dismissed but without prejudice to renewing the motion on proper grounds following a refusals motion or a subsequent round of discovery should that appear necessary. Finally, the motion to withdraw as plaintiff is granted on terms.

[27] I invite the parties to resolve the question of costs between them. I will otherwise entertain costs submissions in writing on a schedule to be agreed upon between counsel within the next 30 days.

[28] The question of additional discoveries and additional time for discovery will be addressed at a later date should that be necessary.

[29] There will be a case conference on a date to be set by the case management co-ordinator. Counsel are to confirm with the case management co-ordinator that the time set aside for trial of an issue in October is no longer required.

Master MacLeod

[^1]: As I advised counsel at the hearing today, given the number of parties and the age of this matter, I am prepared to revisit the timetable and if appropriate I am prepared to fix the trial date and pre-trial date. This will be addressed at an upcoming case conference.