ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-008
DATE: 2015-09-25
B E T W E E N:
Marcel Clarence Smith
Mr. Sahil Shoor, for the Plaintiff
Plaintiff
- and -
Discovery Diamond Drilling Ltd., W.J.F. Ventures Ltd. and Michael Marvin Magrum
Mr. S. Alexander Zaitzeff, for the Defendants
Defendants
AND BETWEEN:
Discovery Diamond Drilling Ltd., W.J.F. Ventures Ltd
Mr. S. Alexander Zaitzeff, for the Plaintiffs by Counterclaim
Plaintiffs by Counterclaim
-and-
Marcel Clarence Smith and Minnie Smith
Mr. Sahil Shoor, for the Defendants by Counter Claim
(Defendant by Counterclaim)
HEARD: September 17, 2015,
at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Motion for an Order to Examine Witness Before Trial
Introduction
[1] The plaintiff moves for an order, pursuant to Rule 36.01(2), for the examination of two witnesses before trial for the purpose of having their evidence available at trial. Neither witness is a party to the litigation. Although the witnesses live in Edmonton, Alberta, it is proposed that their evidence be taken and videotaped at Thunder Bay, Ontario, where the trial is to take place.
[2] There is no dispute that the evidence is relevant to the issues in the case, an action for wrongful dismissal; in particular, it is relevant to the defendants’ counterclaim which alleges that the plaintiff converted certain of the defendants’ drilling equipment to his use.
[3] Although the defendants do not point to any prejudice, they object to such an order as being unnecessary. They submit that the witnesses are in average health for their ages. They also submit that, given the state of modern medicine, neither witness can be considered of advanced age. The plaintiff counters that “everyone dies,” sometimes unexpectedly.
The Facts
[4] The evidence is that one proposed witness, Mr. William Forrest, is 68 years old. He has been successfully treated for cancer. More recently, he was injured in a car accident and suffers back and neck pain. He is also diabetic.
[5] The second witness, Ms. Patricia Forrest, is 71 years old. There is no evidence that she has health problems, but the plaintiff points to her age as a risk factor that she may be unavailable to testify at trial.
[6] The witnesses indicate that they would prefer not to travel to Thunder Bay in winter, or at times that conflict with vacations or medical appointments.
[7] The case is to be tried by a jury. It is in its infancy, as the pleadings have just been finalized. The defendants have not yet responded to the plaintiff’s discovery plan and examinations have not yet taken place. It is conceded that an interprovincial summons to the witnesses could compel their attendance at trial.
Discussion
[8] Rule 36, which provides for the taking of evidence before trial, was broadened in 1985. The annotation to the rule, found in Ontario Civil Practice, 2016, by Watson and McGowan, (Carswell, Toronto, 2015), notes that the grounds for making such an order were broadened when the rule was amended. Now, the application of the rule is no longer limited to circumstances where a witness will be out of the jurisdiction or incapable of testifying.
[9] Generally, witnesses are expected to attend at trial to be examined and cross-examined. However, the purpose of the rule is to preserve evidence so that it will be available, if necessary, at the time of the trial, recognizing that health of a witness, including infirmity, or other factors may interfere with a witness’s availability to testify. Even if an order is made for the taking of evidence before trial, the trial judge retains the discretion to admit or refuse to admit evidence taken in advance of trial, particularly if the witness is available to testify at trial.
[10] Rule 36.01(2) 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.
[11] The making of such an order is discretionary. Factors informing the discretion of the court are set out at subrule 36.01(3) as follows:
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.
[12] Generally the cases turn on their facts. In my view, cases decided before the amendment of the rule should be read carefully. Nevertheless, the case law makes a distinction between taking evidence from a party as opposed to an independent witness. See White v. Weston, [1986] O.J. No. 2611 (S.C.J.), paras. 6 - 7, where the court ruled that “it is incumbent on a party to testify personally if at all possible.”
[13] The purpose of an order in this case is to preserve evidence for trial, against a risk of death or infirmity. It is uncertain when the trial will take place. The statement of claim was issued in January, 2015; the defence to the counterclaim was served in March, 2015. Already the court file contains several motions. No affidavits of documents have been served. The defendants saw fit to cross-examine on the affidavit filed in support of the plaintiff’s motion. It is obvious that this case will not be tried within a year, as Mr. Zaitzeff suggests, even if court time is available, which is not certain.
[14] In the meantime, memories fade. The quality of evidence degrades. Too often witnesses are discomfited by being asked to remember events that took place several years before trial. This stress is often enhanced as a witness ages.
[15] In my view, because of the ages of the witnesses; Mr. Forrest’s medical history; the uncertainty of when the case may be tried; and the risk that the witnesses may be unavailable by reason of vacation or medical appointments at the date of trial, it would be prudent to preserve their evidence in advance of the trial when their memories of events are fresh.
[16] The defendants are not prejudiced. The examinations will take place in Thunder Bay, so they are not put to additional expense. The witnesses would be called at trial in any event. The defendants can cross-examine the witnesses following their examination-in-chief. If the witnesses are available to attend at trial, the trial judge retains the discretion not to use the videotaped evidence of the Forrests.
[17] The motion for leave to examine William Forrest and Patricia Forrest orally before trial for the purpose of preserving their evidence is granted. Their examination and cross-examination under oath or affirmation shall be taken by a court-reporter and shall be video recorded at the plaintiff’s expense. A transcript of the testimony and a copy of the video recording shall be supplied to the defendants, also at the plaintiff’s expense. Unless the trial judge orders otherwise, the evidence of the Forrests shall be preserved and made available at the trial of this action.
[18] If the parties cannot agree on costs, either party may apply to the trial coordinator within thirty days of the release of these reasons for an appointment to argue costs, failing which, costs will be deemed to be settled. Costs submissions are not to exceed five pages.
________”original signed by”
The Hon. Madam Justice H.M. Pierce
Released: September 25, 2015
COURT FILE NO.: CV-15-008
DATE: 2015-09-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Marcel Clarence Smith
Plaintiff
- and -
Discovery Diamond Drilling Ltd., W.J.F. Ventures Ltd. and Michael Marvin Magrum
Defendants
Discovery Diamond Drilling Ltd., W.J.F. Ventures Ltd
Plaintiffs by Counterclaim
-and-
Marcel Clarence Smith
(Defendant by Counterclaim )
REASONS ON MOTION FOR AN ORDER TO EXAMINE WITNESS BEFORE TRIAL
Pierce J.
Released: September 25, 2015
/cs