Court File and Parties

Court File No.: CV-12-45476 Date: 2016-06-22 Ontario Superior Court of Justice

Between: CAROLYN DEN ELZEN personally, and as Estate Trustee for the Estate of STEPHEN DEN ELZEN, Plaintiffs – and – SEAN KELLY, PAUL HUTCHISON, DANA DEELEN, SCOTT LAURIE, GLEN MORASH and THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD and MIKE METCALF, Defendants

Counsel: Michael Gerhard, for the Carolyn Den Elzen Gavin Tighe, for the Sean Kelly

Heard: June 20, 2016

Before: R.F. Goldstein J.

Reasons for Judgment

[1] The Plaintiff, Ms. Den Elzen, was arrested and charged with fraud in 2010. Her husband Stephen Den Elzen, was also arrested and charged. The Crown Attorney withdrew the charges in 2011.

[2] The Den Elzens were employees of Diapers Etc. The president of Diapers Etc. was the Defendant Sean Kelly. Mr. Kelly reported the alleged fraud to the Police Regional Police. The police investigated, laid charges, and obtained arrest warrants. They executed the warrants and took the Den Elzens into custody. After a year of litigation the charges were withdrawn. Mr. Den Elzen was tragically killed in a car accident after this action was launched.

[3] When Ms. Den Elzen appeared for her examination for discovery in October 2015, Mr. Kelly was present and proposed to be in the room. Ms. Den Elzen was surprised. She refused to subject herself to the examination.

[4] Ms. Den Elzen now brings a motion to have Mr. Kelly excluded from the examination for discovery. She says that he will intimidate her and that he will tailor his evidence based on what she says.

[5] There is an inherent right for a litigant to be present at an examination for discovery: Baywood Paper Products v. Paymaster Cheque-Writers (Canada) Ltd. (1986), O.R. (2d) 229 (Dist.Ct.) at para. 19. Exclusion of a party from an examination for discovery should only be ordered in exceptional circumstances. Exceptional circumstances include intimidation or where the evidence is likely to be tailored: Lesniowski v. H.B. Group Insurance Management Ltd. (2003), 57 C.P.C. (6th) 374 at paras. 17-18.

[6] The evidence in support or the intimidation argument is simply not persuasive. Ms. Den Elzen has not demonstrated a real and substantial probability that intimidation is likely to occur: Lesinowski at para. 20. I accept that Ms. Den Elzen may be uncomfortable and experience anxiety if Mr. Kelly is present. That is not, however, the same thing as Mr. Kelly causing discomfort and anxiety by some act of intimidation. It is not enough that Ms. Den Elzen finds Mr. Kelly’s mere presence difficult to cope with. I might take a very different view in, for example, the circumstances of a sexual assault complainant being in the same room as the alleged perpetrator of the assault. That is not this case. Ms. Kelly is the plaintiff in a negligence and defamation action arising out of an alleged employee fraud. Discomfort in these circumstances is not a reason to exclude a party: York University v. Markivic, 2012 ONSC 5325 at paras. 18-19.

[7] In her affidavit Ms. Den Elzen does not give any specific examples of harassment or intimidation by Mr. Kelly. In fact, she had not even seen Mr. Kelly for many years prior to the examination for discovery scheduled in October 2015. It is true that the statement of claim alleges multiple instances of harassment in the context of employment. Those allegations are not specified, particularized, or even mentioned in Ms. Den Elzen’s affidavit. She relies on a general feeling of intimidation. It is not based on anything Mr. Kelly has actually done or she fears he will do. She says that she cannot bear to be in the room as the man who falsely alleged that she committed fraud and caused her humiliating arrest.

[8] The evidence of the psychologist, Mr. Cook, is also problematic. In his affidavit he describes Ms. Den Elzen as suffering from trauma, anxiety and depression. Ms. Den Elzen has taken a battery of tests and been counselled by Mr. Cook or someone from Mr. Cook’s office. Ms. Den Elzen’s psychological counselling took place in the context of an application for statutory accident benefits. That application related to her husband’s death in a car accident. During the course of numerous sessions, Ms. Den Elzen had never once mentioned trauma or anxiety as a result of the lawsuit, or anything done by Mr. Kelly. It appears that Mr. Cook only became aware of the issues at play on this motion when counsel for Ms. Den Elzen contacted him. His opinion – that Ms. Den Elzen should not be in the same room as Mr. Cook – is undermined by the fact that he had previously attributed Ms. Den Elzen’s trauma and anxiety to the loss of her husband.

[9] I do not doubt that Ms. Den Elzen would find it uncomfortable to be in the same room as Mr. Kelly. I also do not doubt that she would prefer he be elsewhere. She also may not be aware that Mr. Kelly did not “cause” her arrest – the police obviously chose to take out an arrest warrant rather than simply serve a summons. Police officers make decisions like that, not complainants. That is not a basis upon which to exclude a litigant.

[10] Mr. Kelly’s counsel did not tell Mr. Gerhard, Ms. Den Elzen’s lawyer, that Mr. Kelly would be at the examination for discovery. Mr. Gerhard argues that there should be a policy change in the law that would put a duty on a litigant who seeks to have a party present to inform the other side. He notes that opposing parties are rarely in the examination room.

[11] I disagree. Litigants have a right to be present. There is some authority that it might be a good thing to give a warning, and it might make the process smoother: Kursheed v. Khoja, 2013 ONSC 69950. I think that imposing a duty to inform would be to take the process too far. I also think that it is unrealistic to expect that a litigant in a case involving alleged employee fraud with numerous documents not be in the room to advise and instruct the lawyer examining an opposing party.

[12] Mr. Gerhard candidly said that he was primarily on intimidation, but did not completely abandon the idea that Mr. Kelly could tailor his evidence. That was wise. I do not accept that it is realistic to expect Mr. Kelly will tailor his evidence as a result of being present for Ms. Den Elzen’s examination for discovery. First, Mr. Kelly could read Ms. Den Elzen’s discovery transcript even if he was not present. Second, this is a case that is largely document-driven. It is difficult to see what, exactly, he could tailor. Third, Mr. Kelly gave a lengthy statement to the police. That statement could obviously be used to impeach his credibility should he tailor his evidence based on something Ms. Den Elzen said at the discovery. Fourth, and finally, Ms. Den Elzen, either in her affidavit or through counsel, is simply unable to articulate what it is that she fears could be tailored. Under those circumstances, I cannot agree that the fear of tailoring can overcome the right of a litigant to be present.

[13] I also cannot agree with the Plaintiffs that this case is properly characterized as a personal injury case. It is framed in negligence and defamation against Mr. Kelly. Ms. Den Elzen is not seeking damages arising out of any physical or psychological harm caused by Mr. Kelly, except in the larger sense that he gave information to the police that ultimately caused her arrest.

Costs

[14] Mr. Tighe submitted a costs outline seeking $21,385.76 in substantial indemnity costs or $15,182.06 in partial indemnity costs. He argued that this motion was poorly conceived and un-necessary. He was required to conduct cross-examinations and put together a significant responding record.

[15] Mr. Gerhard argued that costs should be in the cause and, in any event, that substantial indemnity costs were not appropriate as counsel had done nothing to unduly lengthen the proceedings or act unreasonably.

[16] A court should award costs that are fair and reasonable in the circumstances: Boucher v. Public Accountants Council for Ontario, 71 O.R. (3d) 291, [2004] O.J. No. 2643 (C.A.). Rule 57.01 of the Rules of Civil Procedure sets out the main principles. See also: Anderson v. St. Jude Medical Inc. (2006), 264 D.L.R. (4th) 557, 2006 CarswellOnt 710, [2006] O.J. No. 508 (Div.Ct.).

[17] I disagree with Mr. Gerhard that costs in the cause should be awarded. Courts ordinarily award costs to the winning party: Schreiber v. Mulroney, [2007] O.J. No. 3191 (Sup.Ct.). There is no reason to depart from that principle in this case.

[18] I also disagree with Mr. Tighe that substantial indemnity costs are appropriate in this case. There was nothing about the behaviour of counsel that was vexatious or uncivil.

[19] The reasonable expectation of the parties is very important when dealing with quantum. In this case, the costs outlines are very similar. The difference between the approximately $15,000 sought by Mr. Tighe and approximately $10,000 sought by Mr. Gerhard comes down to the fact that Mr. Tighe is considerably more experienced, and he was required to cross-examine Mr. Cook. That was very important to the outcome of the motion.

[20] Accordingly, $15,000 in partial indemnity costs (rounded down slightly) is awarded to the Defendants Sean Kelly and Paul Hutchison.

R.F. Goldstein J. Released: June 22, 2016