Magnotta Winery Corporation et al. v. The Alcohol and Gaming Commission of Ontario et al.

[Indexed as: Magnotta Winery Corp. v. Ontario (Alcohol and Gaming Commission)]

Ontario Reports

Ontario Superior Court of Justice,

Master McAfee

May 25, 2016

132 O.R. (3d) 153 | 2016 ONSC 3174

Case Summary

Civil procedure — Motions — Scope of examination of witness on pending motion under rule 39.03 of Rules of Civil Procedure limited to witness' knowledge — Witness not required to take reasonable steps to inform herself or to make inquiries of others if unable to answer otherwise proper questions because of lack of knowledge or recollection — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 39.03.

The plaintiffs brought a motion for directions with respect to the proper scope of questioning when examining a witness on a pending motion under rule 39.03 of the Rules of Civil Procedure.

Held, the motion should be granted.

The scope of examination of a witness on a pending motion under rule 39.03 is limited to the personal knowledge of the witness. The witness is not required to take reasonable steps to inform him/herself or to make inquiries of others if unable to answer otherwise proper questions by reason of lack of knowledge or recollection.

Cases referred to

Abou-Elmaati v. Canada (Attorney General), [2013] O.J. No. 2605, 2013 ONSC 3176 (S.C.J.); Adam v. Ledesma-Cadhit, [2015] O.J. No. 2391, 2015 ONSC 3043 (S.C.J.); [page154] Elfe Juvenile Products Inc. v. Bern, [1994] O.J. No. 2840, 76 O.A.C. 54, 35 C.P.C. (3d) 117, 1994 CarswellOnt 1065, 52 A.C.W.S. (3d) 25 (Div. Ct.); George Forrest International Afrique S.P.R.L. v. Forsys Metals Corp., [2010] O.J. No. 4546, 2010 ONSC 5670, 193 A.C.W.S. (3d) 1105 (S.C.J.); Georgian Windpower Corp. v. Stelco Inc., [2007] O.J. No. 5762, 2007 CarswellOnt 10123, 194 A.C.W.S. (3d) 448 (S.C.J.); Ontario v. Rothmans Inc., [2011] O.J. No. 1896, 2011 ONSC 2504, 5 C.P.C. (7th) 112, 201 A.C.W.S. (3d) 341 (S.C.J.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7258 (ON SC), 27 O.R. (3d) 291, [1995] O.J. No. 3886, 46 C.P.C. (3d) 110, 59 A.C.W.S. (3d) 864 (Gen. Div.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 39.02, 39.03, (1), (2)

MOTION for directions.

I. Roher and J. Polock, for moving parties, plaintiffs.

T.D. Barclay, for responding parties, defendants Alcohol and Gaming Commission of Ontario and Her Majesty the Queen in Right of Ontario.

M.J. Dougherty, for responding party, defendant Liquor Control Board of Ontario.

MCAFEE J.: —

Nature of the Motion

[1] This is an interim motion brought by the plaintiffs (collectively "Magnotta") for directions in accordance with leave granted by Justice Myers on March 9, 2016.

[2] There are three pending main motions: the defendant the Alcohol and Gaming Commission of Ontario ("AGCO") and the defendant Her Majesty the Queen in Right of Ontario ("HMQ") (collectively the "Crown") have brought a motion to strike portions of the statement of claim or, in the alternative, for summary judgment dismissing the action; the defendant the Liquor Control Board of Ontario ("LCBO") has brought a motion to stay the action, to dismiss the action and/or to strike portions of the statement of claim; and Magnotta has brought a cross-motion for partial summary judgment against the Crown.

[3] The parties agree that the directions requested on this interim motion are as set out in Magnotta's factum, at para. 51:

What is the proper scope of questioning when examining a witness on a pending motion under Rule 39.03 of the Rules of Civil Procedure, and more particularly:

1. Is such scope limited solely to the personal knowledge of the witness?

2. Is such witness required to take reasonable steps to inform himself or herself prior to being examined? [page155]

3. Is such witness obliged to undertake to make enquiries of others if he or she cannot answer otherwise proper questions by reason of lack of knowledge or recollection?

[4] While this interim motion arose in the context of the Magnotta's rule 39.03 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] examination of Katherine Klas, a current employee of AGCO and a past employee of the Liquor Licence Board of Ontario, the parties agree that the directions also apply to Magnotta's pending rule 39.03 examination of Jason Hackbush, an LCBO employee.

Position of the Parties

[5] Magnotta argues that the scope of an examination of a witness pursuant to rule 39.03 is not limited solely to the personal knowledge of the witness, that the witness is required to take reasonable steps to inform himself or herself prior to being examined and that the witness is obliged to undertake to make enquiries of others if he or she cannot answer otherwise proper questions by reason of lack of knowledge or recollection.

[6] The Crown and the LCBO argue that the scope of an examination of a witness pursuant to rule 39.03 is limited solely to the personal knowledge of the witness, that the witness is not required to take reasonable steps to inform himself or herself prior to being examined and that the witness is not obliged to undertake to make enquiries of others if he or she cannot answer otherwise proper questions by reason of lack of knowledge or recollection.

Applicable Rule

[7] Subrules 39.03(1) and (2) of the Rules of Civil Procedure state:

39.03(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.

(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.

Analysis

[8] A party that seeks to conduct an examination pursuant to rule 39.03 must show that the proposed examination will be on an issue relevant to the pending motion and that the witness to be examined is in a position to offer relevant evidence [page156] (Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7258 (ON SC), 27 O.R. (3d) 291, [1995] O.J. No. 3886 (Gen. Div.), at para. 18).

[9] The cases in which the issue of whether a person is in a position to offer relevant evidence is considered demonstrate that an examination under rule 39.03 is intended to adduce evidence based on the direct personal knowledge of the witness of the matters at issue in the motion (George Forrest International Afrique S.P.R.L. v. Forsys Metals Corp., [2010] O.J. No. 4546, 2010 ONSC 5670 (S.C.J.), at paras. 12, 28-29; Georgian Windpower Corp. v. Stelco Inc., [2007] O.J. No. 5762, 2007 CarswellOnt 10123 (S.C.J.), at paras. 4, 28).

[10] The Crown did not dispute that Ms. Klas has evidence that is relevant to the motions. The examination of Ms. Klas proceeded. Ms. Klas was asked 625 questions and refused 33 questions. The nature of the refused questions has resulted in the within motion for directions. There is no issue that the refused questions are relevant. Similarly, the LCBO does not dispute that Mr. Hackbush has evidence that is relevant to the motions. Mr. Hackbush's examination pursuant to rule 39.03 is pending.

[11] As a rule 39.03 witness, Ms. Klas is not a witness providing evidence on behalf of the Crown: she is not a party to the proceeding and she has not sworn an affidavit on the motion. It would be inconsistent with this role to require her to inform herself about the Crown's evidence or to make enquiries of others to that end. Ms. Klas is in a position to offer relevant evidence only from her own knowledge, information and belief. The same is true of Mr. Hackbush.

[12] If Magnotta were permitted to require Ms. Klas and Mr. Hackbush to answer questions about which they have no personal knowledge, it would circumvent the well-established requirement that a rule 39.03 witness must be in a position to offer relevant evidence. A witness is only in a position to offer relevant for the purpose of rule 39.03 when he or she has personal knowledge of the matters in issue. If the requirement could be met by virtue of the ability of the witness to inform himself or herself or make enquiries of others, anyone employed by or associated with a party could be summonsed for a rule 39.03 examination even if they had no personal knowledge of the matters in issue and were unable to provide direct relevant evidence. This interpretation would unduly broaden the scope of rule 39.03 examinations by compelling individuals who had no involvement in or knowledge of the events or matters in [page157] issue to make extensive efforts to inform themselves and make enquiries of others.

[13] It would also be contrary to the principle of proportionality to require Ms. Klas and Mr. Hackbush to engage in an exercise of informing themselves of the matters at issue on the main motions and making enquiries of others when Magnotta already has the opportunity to cross-examine affiants on their affidavits pursuant to rule 39.02.

[14] Mr. Longhurst has sworn an affidavit in support of the Crown's position on the motions. Mr. Ford has sworn an affidavit in support of the LCBO's position on the motions. Magnotta may cross-examine Mr. Longhurst and Mr. Ford pursuant to rule 39.02.

[15] An affiant who is cross-examined pursuant to rule 39.02 may be asked to give undertakings to obtain information if the information is readily available and it would not be unduly onerous to to obtain it (Ontario v. Rothmans Inc., [2011] O.J. No. 1896, 2011 ONSC 2504 (S.C.J.), at para. 143). An affiant who deposes on information and belief may be compelled to inform himself or herself in limited circumstances (Rothmans, at para. 153).

[16] To impose the same obligations of making enquiries of others and informing himself or herself on a rule 39.03 witness would be duplicative and inefficient.

[17] While there was no issue that Magnotta could examine Ms. Klas and there is no issue that Magnotta can examine Mr. Hackbush pursuant to rule 39.03, Magnotta should not be able to circumvent the chosen affiants of the Crown and the LCBO by subjecting Ms. Klas and Mr. Hackbush to the same responsibilities as the affiants. As a matter of procedural fairness, the Crown and LCBO ought to be able to select their own witnesses for the motion, particularly when their chosen affiants have knowledge of the matters in issue (Abou-Elmaati v. Canada (Attorney General), [2013] O.J. No. 2605, 2013 ONSC 3176 (S.C.J.), at para. 73).

[18] On examination for discovery, a witness must inform himself or herself. On cross-examination, the affiant's obligation to inform himself or herself is more limited. The obligations of a witness being examined under rule 39.03 must necessarily be even less onerous than on a cross-examination under rule 39.02 since a rule 39.03 witness is not put forth as a witness on behalf of a party.

[19] In the decision of Elfe Juvenile Products Inc. v. Bern, [1994] O.J. No. 2840, 1994 CarswellOnt 1065 (Div. Ct.) relied on by Magnotta, there was no issue concerning the propriety of [page158] questions where the answer was outside the personal knowledge of the non-party witness.

[20] As stated by Justice Myers in Adam v. Ledesma-Cadhit, [2015] O.J. No. 2391, 2015 ONSC 3043 (S.C.J.), at para. 9, "all relevant evidence [should be placed] before the court to ensure a fair airing of the issues". This is not a case where there is a request to set aside a summons. Ms. Klas was examined and Mr. Hackbush will be examined. There are affiants with knowledge who may be cross-examined. Having regard to all of the circumstances of the motions and the general principle that the Rules should be construed to secure the just, most expeditious and least expensive determination, the directions below provide the parties with a fair opportunity to put forward all relevant evidence for a fair hearing.

Directions and Order

[21] For the above reasons, the answers to the questions concerning the proper scope of questioning when examining a witness on a pending motion pursuant to rule 39.03 are as follows:

(1) Is such scope limited solely to the personal knowledge of the witness? Yes.

(2) Is such witness required to take reasonable steps to inform himself or herself prior to being examined? No.

(3) Is such witness obliged to undertake to make enquiries of others if he or she cannot answer otherwise proper questions by reason of lack of knowledge or recollection? No.

[22] While the answer to question 2 is no, Ms. Klas did take reasonable steps to inform herself prior to being examined in any event.

[23] In light of the answers to the questions, the motion for relief requested at paras. 2 and 3 of the notice of motion is dismissed. The parties agree that the relief at para. 1 of the notice of motion is not at issue.

[24] If any party seeks costs and if after reasonable attempts to agree on costs the parties are unable to agree, the parties may make arrangements to attend before me to speak to the issue of costs.

Motion granted.

[page159]

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