Court File and Parties

COURT FILE NO.: CV-13-5438-00 DATE: 2016 04 14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Travis Martin and Kiewit Alarie A Partnership, Electrical Power Systems Construction Association, Commissioner of the Ontario Provincial Police

BEFORE: Fragomeni J.

COUNSEL: Julian Heller, for the Plaintiff Dan J. Shields, for the Defendant Kiewit Alarie A. Partnership S. Crumb, for Electrical Power Systems Construction Association

HEARD: March 30, 2016

E N D O R S E M E N T

[1] This is a motion brought by the Plaintiff to strike affidavit evidence brought by the Responding Defendants on their motion for summary judgment.

Overview of Chronology of Events

[2] The Defendant Kiewit Alarie, A Partnership (“KAP”) is the design-build contractor for a Hydro Project located near Kapuskasing, Ontario. KAP is a member of the Electrical Power Systems Construction Association (“EPSCA”). KAP is bound by the Collective Agreement between the Sheet Metal Workers International Association, Local 397 and EPSCA.

[3] The Plaintiff Martin worked on the Project site. He was a member of the Union. From June to July 2011, Martin worked directly for KAP. He was laid off in accordance with the Collective Agreement. Martin was later hired by Montacier International Inc., an independent subcontractor of KAP. He worked for Montacier on the Project site until the events that gave rise to this action.

[4] In September 2011, a woman who worked on the Project site reported to security that Martin sexually harassed and/or assaulted her. The complaint was not escalated to KAP Human Resources (“H.R.”) until December 2011. KAP H.R. investigated the complaint and determined that the OPP should be involved as the complaint was potentially criminal in nature. The OPP were called. Martin was arrested and charged. Pursuant to his promise to appear, Martin is not permitted to attend at the Project site. As a result, his employment with Montacier was terminated.

[5] Martin grieved his termination through the Union. The grievance was against KAP and EPSCA only and not Montacier. The grievance was referred to arbitration in January 2012. In a May 7, 2013, decision, the OLRB dismissed the Plaintiff’s grievance on the basis that Martin was not an employee of KAP or EPSCA. Martin initiated this action by delivering a Statement of Claim on February 11, 2014. KAP and EPSCA are named as Defendants.

[6] Martin was initially self-represented but retained counsel on the eve of the Defendants’ summary judgment motion, originally returnable April 15, 2015. The Defendants’ agreed to adjourn the summary judgment motion.

[7] The parties agreed to a timetable on April 10, 2015 for an August 17, 2015 motion date. Cross-examinations were to be completed by July 31, 2015. Cross-examinations were scheduled for June 16 and 17, 2015. On June 9, 2015, Plaintiff’s counsel advised that he would also be examining union official Eric Comartin under Rule 39.03 of the Rules of Civil Procedure and suggested this take place on June 16, prior to any other examinations. On the morning of June 16, counsel for KAP wrote to counsel for Mr. Martin and asked him to consider the impact of his decision to call Mr. Comartin to give evidence. Mr. Comartin was examined on June 16. Afterwards, the Defendants advised that they would need to prepare affidavit evidence in reply. They did so on June 23, 2015 (KAP’s Supplementary Motion Record containing the Affidavit of David Hollett) and July 6, 2015 (EPSCA’s Supplementary Motion Record containing the Affidavit of Kellie Gamble).

[8] Martin objects to these additional affidavits and argues that the Defendants should have proceeded to examine Mr. Comartin on June 16, 2015.

Position of the Plaintiff

#1 - Is the Defendants’ delivery of Supplementary Affidavit evidence improper under the Rules of Civil Procedure?

[9] The Plaintiff submits that the Defendants are not permitted to deliver supplementary affidavit evidence once a Rule 39.03 examination has commenced. The Plaintiff submits that the Rule 39.03 examinations need not be completed to engage this prohibition, they must only have commenced.

[10] The Plaintiff submits that the purpose of Rule 39.02 of the Rules of Civil Procedure is to prevent the endless exchange of affidavits attempted by the Defendants. If the Court allowed the affidavits, it would effectively allow the Defendants to improperly supplement their own evidence.

#2 - If so, what consequences should flow from this impropriety?

[11] The Plaintiff submits that the Defendants, by refusing to examine Mr. Comartin on June 16, 2015, have forfeited their right to examine Mr. Comartin under Rule 39.03. The Plaintiff argues that the Defendants’ right to examine Mr. Comartin under Rule 39.03 is subject to Rule 39.02(2). Rules 39.02(2) and 39.03 do not allow for a party to stop a Rule 39.03 examination in the middle of the examination. The Defendants effectively stopped the examination by refusing to continue the examination on June 16, 2015. The Defendants require leave to conduct any further examination of Mr. Comartin. Martin submits that leave should not be granted because the matter to which the proposed affidavits respond arose prior to Mr. Comartin’s examination: see Brock Home Improvement Products Inc. v. Corcoran (2002), 58 O.R. (3d) 722, 2002 ONSC 49425. If the Defendants had issue with the examination, they should have moved to set aside the summons.

[12] The Plaintiff further submits that the affidavits filed in response to Mr. Comartin’s evidence should be struck under Rule 25.11 of the Rules of Civil Procedure. In the alternative, paragraphs 6-10, 11-25, 28, 29, 30, and 41-46 of the Supplementary Affidavit of David Hollett should be struck, along with paragraph 5 of the Supplementary Affidavit of Kellie Gamble. The Defendants’ conduct has delayed their summary judgment motion by nearly a year. As a result, the evidence is prejudicial and caused delay, and should therefore be struck under Rule 25.11(a). The supplementary affidavits also constitute an abuse of process and should be struck under Rule 25.11(c).

[13] The Plaintiff further submits that the Defendants have forfeited their right to cross examine Martin on his affidavit. If the Defendants are entitled to cross-examine Martin, they should have to pay costs thrown away to date, including $5,000 related to Martin’s travel to his cross-examination as originally scheduled.

[14] Finally, the Plaintiff submits that the Defendants should be ordered to be cross-examined, with the Defendants paying costs thrown away to date.

Position of the Defendants

#1 - Is the Defendants’ delivery of Supplementary Affidavit evidence improper under the Rules of Civil Procedure?

[15] The Defendants submit that this motion is premature and should be decided by the judge who hears their summary judgment motion: see 1196303 Ontario Inc. v. Glen Grove Suites Inc., [2012] O.J. No. 378 (S.C.).

[16] The Defendants submit that the Plaintiff has provided no case law supporting his interpretation of the Rules. Rule 39.03 is separate and distinct from Rule 39.02. The Defendants did not deliver their supplementary affidavits following a cross-examination of the Plaintiff on his affidavit. As such, they have not violated Rule 39.02 and the affidavits are not improper.

[17] Rule 39.02(2) was added by amendment to curb the former practice of respondents cross-examining on the moving party’s affidavit before delivering any affidavit material of their own, allowing them to decide whether it was necessary to prepare their own affidavits and subject their witnesses to cross-examination. That is clearly not what the Defendants are attempting to do here. This is their motion and they necessarily put forward affidavit evidence in support of the motion prior to conducting any cross-examinations.

[18] In Good Vibrations Disc Jockey Services Ltd. v. Royalton Hospitality Inc., [2013] O.J. No. 4489 (S.C.) at para. 9, the Court stated that “it would be wrong, in my view, to extend an interpretation of [39.02] beyond its clearly stated wording.” In that case, the plaintiff had not technically breached Rule 39.02 but the defendant argued that they had violated the spirit of the rule.

[19] If Mr. Comartin’s evidence was supplied by way of affidavit rather than by Rule 39.03 examination, the Defendants would clearly be entitled to deliver reply affidavits. This is the very reason why both affidavit evidence and Rule 39.03 examinations must precede cross-examinations. Both are ways to lead primary evidence.

[20] Any delay here was created by the Plaintiff. The Plaintiff made no mention of Rule 39.03 examinations when a timetable was agreed to. The examination of Mr. Comartin was only proposed one week prior to the date scheduled for cross-examinations. Counsel for KAP informed Martin’s counsel prior to the examination that the examination may require further affidavit evidence from the Defendants.

[21] In part, the Defendants refused to examine Mr. Comartin on June 16, 2015, because Mr. Comartin undertook to provide his investigation notes and other materials on examination by Plaintiff’s counsel. The Defendants wish to review these undertakings before examining Mr. Comartin.

[22] The Defendants did not refuse to cross-examine Martin on June 16. The Rules require them to examine Mr. Comartin before they cross-examine Martin.

[23] The Defendants provided responding affidavits promptly and indicated that they were willing to proceed with the August 17, 2015 date for their summary judgment motion. It was the Plaintiff’s counsel who asked for an adjournment.

[24] The Defendants submit that even if leave was required to admit this evidence, leave should be granted. The evidence is necessary to allow the Defendants to put their best evidentiary foot forward on the motion for summary judgment. The Rules are not intended to exclude relevant evidence.

#2 - If so, what consequences should flow from this impropriety?

[25] The Defendants submit that the prerequisites to Rule 25.11 of the Rules of Civil Procedure are not met. The evidence has caused no prejudice. In fact, KAP submits that this motion constitutes an abuse of process.

Analysis and Conclusion

[26] I accept the position of the Defendants.

[27] Rule 39.02(1) & (2) state:

39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application. R.R.O. 1990, Reg. 194, r. 39.02 (1).

(1.1) Subrule (1) does not apply to an application made under subsection 140 (3) of the Courts of Justice Act. O. Reg. 43/14, s. 11.

(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03. R.R.O. 1990, Reg. 194, r. 39.02 (2).

[28] Rule 39.03 states:

(1) Subject to subrule 39.02 (2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing. R.R.O. 1990, Reg. 194, r. 39.03 (1).

(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination. R.R.O. 1990, Reg. 194, r. 39.03 (2).

(2.1) Subrules (1) and (2) do not apply to an application made under subsection 140 (3) of the Courts of Justice Act. O. Reg. 43/14, s. 12.

To be Exercised with Reasonable Diligence

(3) The right to examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of an examination where the party seeking the adjournment has failed to act with reasonable diligence. R.R.O. 1990, Reg. 194, r. 39.03 (3).

At the Hearing

(4) With leave of the presiding judge or officer, a person may be examined at the hearing of a motion or application in the same manner as at a trial. R.R.O. 1990, Reg. 194, r. 39.03 (4).

Summons to Witness

(5) The attendance of a person to be examined under subrule (4) may be compelled in the same manner as provided in Rule 53 of the Rules of Civil Procedure for a witness at a trial. R.R.O. 1990, Reg. 194, r. 39.03 (5).

[29] In accordance with Rule 39.02 before a moving party may cross-examine an adverse affiant on an affidavit, the party must first have delivered every affidavit on which he or she intends to rely and have completed all examinations under Rule 39.03. In this case the Defendants have not delivered their supplementary affidavits following cross-examination of the plaintiff on his affidavit. The Defendants delivered supplementary affidavits after the Plaintiff concluded his examination of Mr. Comartin, a non-party witness, but before the Defendants cross-examined that witness.

[30] A Rule 39.03 examination is not equivalent to a cross-examination under Rule 39.02. The fact that a Rule 39.03 examination may take the form of a cross-examination does not transform it into a Rule 39.02 cross-examination. Contrary to a Rule 39.02 cross-examination, a Rule 39.03 examination is a way to lead primary evidence. Neither the clear wording or the spirit of the Rules prevent a party from supplying affidavit material to reply to primary evidence, whether it is led by affidavit or a Rule 39.03 examination.

[31] Had the Plaintiff produced Mr. Comartin’s evidence by way of an affidavit pursuant to Rule 39.01 of the Rules of Civil Procedure rather than by way of examination pursuant to Rule 39.03 the Defendants would have been entitled to deliver a supplementary affidavit in reply. In either situation, both must be done before cross-examinations on affidavits under Rule 39.02 can be conducted.

[32] It is not evident on the evidentiary record before me why the Plaintiff did not produce Mr. Comartin’s evidence by way of an affidavit. There is no evidentiary basis to find that Mr. Comartin was not prepared to swear an affidavit.

[33] The Defendants chose not to examine Mr. Comartin and one of the reasons advanced by the Defendants for not doing so was the fact that Mr. Comartin undertook to provide his investigation notes and other materials. The Defendants wanted to review those undertakings prior to examining Mr. Comartin. During oral argument, counsel for the Defendant KAP also indicated the Defendants refused to examine Mr. Comartin to avoid the very argument the Plaintiff now makes.

[34] Further, there is nothing in Rule 39.03 that stipulates that Mr. Comartin had to be examined by all parties at the same time. The Defendants’ reasons for refusing to examine Mr. Comartin on June 16 were reasonable.

[35] In all of these circumstances the Plaintiff’s Motion is dismissed.

[36] The parties shall file written submissions on costs of the motion within ten days.

FRAGOMENI J. DATE: April 14, 2016