Court File and Parties

Court File No.CV-06-310261

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DR. RANJIT KUMAR CHANDRA

Plaintiff

• and -

CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE McISAAC, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND

Defendants

PROCEEDINGS AT TRIAL

EXCERPT OF PROCEEDINGS

RULING RE: ADMISSIBILITY OF READ-IN EVIDENCE

BEFORE THE HONOURABLE MR. JUSTICE G. MEW and JURY

on July 15, 2015, at TORONTO, Ontario

APPEARANCES:

Mr. J. Lavers, Ms. S. Learmonth, Mr. H. R. Bennett, Mr. J. Figliomeni

Counsel for the Plaintiff

Ms. C. Lonsdale, Mr. E. Marques, Ms. G. Kerr

Counsel for Canadian Broadcasting Corporation, Chris O’Neill-Yates and Lynn Burgess

Mr. A. Pettingill, Ms. J. Tam, Mr. S. Murtha

Counsel for Jack Strawbridge and Memorial University of Newfoundland

RULING RE: ADMISSIBILITY OF READ-IN EVIDENCE

MEW J. (Orally):

[1] This is my ruling on the objection taken by the plaintiff to the proposed read-ins by CBC.

[2] After calling its last witness, CBC indicated its intention to read in certain portions of the transcript of the examination of the plaintiff, Dr. Chandra. Rule 31.11(1) of the Rules of Civil Procedure addresses the use of examination for discovery at trial, and says this in respect of the reading in of the examination of a party:

(1) At the trial of an action, a party may read into evidence as part of the party’s own case against an adverse party any part of the evidence given on the examination for discovery of,

(a) the adverse party ...

There is a part b, but it is not relevant for the purposes of this discussion.

...if the evidence is otherwise admissible, whether the party or other person has already given evidence or not. R.R.O. 1990, Reg. 194, r. 31.11(1); O. Reg. 260/05, s. 8.

(2) The evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness. R.R.O. 1990, Reg. 194, r. 31.11 (2).

[3] The 2014 copy of the Rules of Civil Procedure that happened to be sitting on the bench, which is the Watson and McGowan volume, adds this editorial note:

The Evidence Act, R.S.O. 1990, chapter E3, sections 20 and 21, requires that a prior inconsistent statement be put to the witness before its introduction into evidence. While the defendant can read in evidence from a plaintiff’s examination for discovery as an admission, he or she cannot do so for impeachment purposes without complying with the Evidence Act. See: Rule 31.11(2); International Corona Resources Ltd. v. Lac Minerals, (1986) 1986 2839 (ON SC), 53 O.R. (2d) 737.

[4] The plaintiff objects to the reading in of the extracts that have been proffered by CBC on the basis that the evidence that is sought to be adduced from those extracts should have been put to Dr. Chandra at trial, and heavy reliance was placed in that regard on the decision of Mr. Justice McEwen in Austin v. Bubela, 2011 ONSC 3287, a decision of this court. In that case, at the conclusion of the defendant’s case, defence counsel had sought to introduce evidence by reading in excerpts from the plaintiff’s examination for discovery transcript. The judge appears to have, of his own volition, raised a concern with respect to that, and, having taken the matter under consideration, he expressed the following view, starting at paragraph 5 of his reasons:

[5] In my opinion, the defendant cannot introduce the plaintiff’s transcript evidence since it violates the rule in Browne v. Dunn. This rule requires the defendant to give the plaintiff an opportunity to comment upon the evidence being introduced.

[7] In my view, while the defendant, at the end of his case can introduce excerpts from the plaintiff’s examination for discovery transcript, as evidence, he can only do so if he has first complied with the rule in Browne v. Dunn and has previously put the transcript excerpts to the plaintiff. This was not done in this case.

[5] Counsel for the CBC defendants has drawn my attention to another authority, also a decision of this court, in Guelph (City) v. Super Blue Box Recycling Corp., 2006 CarswellOnt 616 (Ont. S.C.J.). That decision involves rule 31.11(1)(b), namely, the reading in of the examination for discovery of a person examined on behalf of or in place of the adverse party rather than of the particular witness who’d given evidence at trial; but the principle which counsel directs me to, she says, has equal application in the matter presently under discussion. And I quote from paragraphs 9 and 10 from the decision of Mr. Justice McKenzie in that case:

[9] The rule in Browne v. Dunn, of course, is a rule of fairness. It has been stated as such and the real question is that if there is an intent on the part of a party to impeach the credibility of the other party or a witness on behalf of that other party, then that witness whose credibility impeachment is sought has to be given the evidence in respect of which the impeachment is being sought. It is essentially a question of independent evidence in which the witness's credibility is sought to be impeached.

[10] Now, the extrinsic or independent evidence in the present application in my view is not within the full range of the principle in Browne v. Dunn because it is not independent. It is in fact a prior inconsistent statement if the purpose of the excerpts is impeachment. The situation here is that I am told on behalf of the defendant that impeachment is not the objective. Otherwise, the purpose is to obtain on the record admissions that have been made by Laird on behalf of the plaintiff. Now, in that situation, the question becomes whether the proffered excerpts are admissions within the intent and spirit of Rule 31.11.

[6] On behalf of Dr. Chandra, it was submitted, and I agree, that Rule 31.11 is there for trial efficiency, and it allows portions of evidence to be read into the record at trial without the need to call that evidence at trial. That is an important part of a more efficient trial process. It was suggested on behalf of CBC that if it had been understood by CBC that they would not be able to read in portions of the transcript in accordance with Rule 31.11, that the result would have been a significantly longer cross-examination of Dr. Chandra than the lengthy cross-examination that already took place.

[7] Furthermore, CBC indicates that it is mindful of the prohibition against the use of the proposed read-in evidence for the purposes of impeachment, or, indeed, contradicting Dr. Chandra’s trial evidence, and that the intention, as I distilled what was submitted, is to supplement the record: that is, filling gaps with detail that it was felt unnecessary to explore at trial because of the evidence that had already been given at discovery; and to the extent that the read-ins consist of admissions, to record those admissions.

[8] At the end of the day, the yardstick that I have to measure the submissions that I have received against is that of fairness: fairness to Dr. Chandra, in being able to respond to evidence which is considered to be important either by the CBC defendants, or, indeed, which Dr. Chandra regards as important; and, on the other hand, the presumptive ability of the CBC to read evidence into the record pursuant to 31.11, an entitlement that the CBC appears to have placed some reliance on in terms of how it structured its defence. And then, to further enhance the challenge of providing a fair process, the fact that there is a jury does seem to me of some significance, although there is not one rule for a jury trial and a different rule for a non-jury trial in terms of the application of Rule 31.11. Juries are probably in a less able position than a judge to distill the difference between passages that might be seen as contradictory and to properly assess the extent to which account should be taken of that when weighing the evidence.

[9] Having engaged in that balancing process, and having read the entirety of the proposed read-ins, I am persuaded that the CBC should be entitled to read in the transcript portions which they have tendered, and I am going to permit them to do so. However, and I appreciate that this is not the plaintiff’s desire, but to the extent that Dr. Chandra considers that he is prejudiced by any of these read-ins addressing matters which he feels he should have had the opportunity to address at trial and did not - because he assumed when he sat down, having concluded his evidence, that the evidence of this nature would not be tendered by the CBC, I will certainly entertain a request by Dr. Chandra for the opportunity to give evidence in reply. I am not going to give a blanket indication that he can give evidence in reply; but, if, on reflection, Dr. Chandra feels that there are issues raised in these read-ins which should properly give rise to an entitlement to give evidence in reply, then I will certainly hear from you, Mr. Bennett, on that.