Court File and Parties

Court File No.: 07-CV-331976 Heard: April 15 and May 18, 2016 Superior Court of Justice - Ontario

Re: Abdi v. Demello

Before: Master Joan Haberman

Counsel: N. Mester, for the moving party M. Doli, present on both attendance but for the responding party at the first attendance, only

Reasons

Master Haberman:

[1] The motion before me is for leave pursuant to Rule 48.04 of the Rules of Civil Procedure to seek an order compelling the plaintiff to re-attend for a further examination for discovery, and permitting examination on all events since the plaintiff was last examined to present.

[2] The action arises from a motor vehicle accident that occurred in May 2005, more than 11 years ago. The action was commenced in April 2007 and the plaintiff was examined for discovery on April 15, 2011. The action was set down for trial and a pre-trial took place on October 19, 2015.

[3] As the defendant consented to having this matter placed on the trial list by having agreed to a trial date, he needs leave to bring this motion, pursuant to Rule 48.04.

[4] Counsel first appeared before me on April 15, 2016. As inadequate time had been booked to complete it at that time, we began the hearing and returned on May 18, 2016 to complete submissions. At that time, Mr. Doli advised that he was no longer able to contact his client and, therefore, he no longer had instructions. As a result, he refrained from making submissions with respect to the substantive issues on the second attendance.

Evidentiary Issue

[5] The evidence filed in support of the motion takes the form of an affidavit, sworn by David Sazant, an articling student at the moving party’s firm. The affidavit is peppered with comments from Sazant about what Mr. Mester – counsel who argued the motion – said or did. This is problematic. It is more problematic when the evidence intended to substantiate a core fact is based on hearsay, as appears to be the case here.

[6] Sazant begins his evidence by stating that, as a student-at-law for the firm handling this case, he has personal knowledge of the matters deposed to except where stated to be on information and belief and as to those matters I state the source of my information and the fact of my belief.

[7] Notwithstanding this introduction to his evidence, Sazant’s affidavit contains evidence that is crucial to the outcome of this motion for which he provides no source, though it does not appear to be information within his own knowledge. It is not enough to simply use a precedent from another affidavit if a deponent then fails to act on the basis of what he asserts he is doing.

[8] The most significant example of this omission is reflected in paragraph 4. There, Sazant discusses what transpired after the pre-trial, relating a conversation that allegedly took place between Mr. Mester and Mr. Doli. He neglects to mention, however, if he was present at the time and whether he actually overheard the conversation that he relates. His evidence as to what was said is as follows: counsel for the plaintiff informed…counsel for the defendants that the plaintiff was working in the trucking industry at the time of the pre-trial. This, in large part, a major lynch pin for this motion.

[9] Mr. Doli’s clerk, Peter Tesi, states that he, himself, was present when this discussion took place and he that he can unequivocally say that Mr. Doli did not tell Mr. Mester that the plaintiff was employed “since earlier 2015 (sic) which was the year during which Mr. Doli and Mr. Mester had the conversation. He goes on to say that, after the pre-trial, Mr. Doli said that the plaintiff attempted to be trained as a truck-driver in May of 2015 with an owner operator but was unable to complete the training.

[10] There is no reply affidavit from Sazant to clarify the source of his information. No effort was made to clarify what Sazant, himself heard or knew. I therefore infer that he was not present and did not overhear any of this. As a result, I prefer Tesi’s evidence on this point as his evidence is direct, and Sazant’s appears to be hearsay.

[11] There is therefore no evidence before the court to support Mr. Mester’s assertion that, at the time of the pre-trial, he was advised that the plaintiff had been working in the trucking industry. If this is what Mr. Mester believes he was told, the best evidence on this point would have been an affidavit from Mr. Mester and the motion could have been argued by another counsel. Instead, a student put his name to an affidavit in which he relates a conversation that he was apparently neither involved in nor privy to.

[12] The issue for the court is, therefore, whether the record displays any other basis for this motion.

The Tax Returns

[13] On October 22, 2015, Mr. Mester wrote to Mr. Doli to confirm that the plaintiff has been employed since earlier in 2015 and that Mr. Doli has his tax returns from 2005 to present. He advised that he wanted production of said returns for the period after the accident, and stated that upon receipt, he would examine the plaintiff pursuant to Rule 31.09, as he expected he would have questions arising from the response to this undertaking to produce them.

[14] Mr. Doli provided the tax returns from 2000 to 2014 by letter the following day, saying nothing about the rest of the letter. His response to the letter came later, on October 29, 2015. In his letter of that day, Mr. Doli took affront at the reference to an alleged conversation he is said to have had with Mr. Mester. He disputed saying anything about his client having worked in the trucking industry since 2015, confirming, however, that the plaintiff had tried to train with the owner operator of a truck-trailer. In a letter two weeks later, contact details for the owner operator were provided.

[15] While Mr. Doli notes at the conclusion of the letter that he would resist any attempt to re-examine his client based on this alleged conversation, that conversation was not the basis for re-examination provided by Mr. Mester in his letter of October 22. It only arose in the context of the motion. His focus was on questions arising from his review of the tax returns, once he has them in hand.

[16] There is no evidence from either party explaining why tax returns, sought at discoveries in April 2011, were not produced until three and a half years later, after the matter had been set down for trial and after a trial date had been agreed to.

[17] Although Sazant referred to the contents of the tax returns in his evidence as demonstrating that the plaintiff continued to earn income post-accident, he failed to attach copies of these documents as exhibits. One of the counsel handed up a copy of the returns at the first attendance.

[18] Between the two hearing dates, court staff misplaced the file so I worked with duplicates on day 2. The tax returns were lost with the original file and, though counsel were so advised at the second hearing day and although Mr. Mester undertook to provide second copies in court, he failed to do so. As I share my assistant with 2 other masters (more when she is backing up other assistants who are ill or way), her work day does not include time to follow up with lawyers who do not comply with undertakings given to the court.

[19] In his evidence, Sazant also states that a review of these records (the tax returns) indicates that the Plaintiff continued to earn business income post-accident. Nothing is appended to the affidavit to support or explain this statement. If Abdi owns a taxi, it is conceivable that he reports his income as business income. There is nothing else in the evidence to put this comment in context. Further, to the extent that this is something that has continued, as Sazant stated, is it not new and cannot be viewed as a fundamental change.

[20] Sazant concluded his evidence by stating there has been a fundamental change in circumstances since the plaintiff was last examined. It is not clear what he relies on in that regard. In submissions, Mr. Mester relied on the fact that he was told the plaintiff had been working as a truck driver. As noted above, I have already found that there is no credible evidence in proper form to support the assertion that this is what Mr. Mester was told.

Undertakings

[21] The alternate basis for the motion arises from the defendant’s desire to now examine the plaintiff on questions arising from responses to undertakings with respect to his employment history.

[22] Neither the questions asked at the first discoveries nor the responses provided to those undertakings are contained in the motion record, however, so I am unable to assess what Abdi has said in response that could lead to further questioning. This is important as Mr. Mester’s letters to Mr. Doli simply noted that he expected he would have further questions once undertakings were complied with. Without seeing the questions and responses, I am unable to say if it would be manifestly unjust not to grant leave.

[23] Mr. Mester conceded that he had agreed to have the action set down for trial before he had the returns in hand.

The Law, Analysis and Conclusion

[24] It is trite law that, pursuant to Rule 48.04(1), the impact of setting matter down for trial is as follows:

Subject to subrule (3), any party who has set the action down for trial and any party who has consents to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

[25] In order to obtain leave, the moving party must show that there has been a substantial or unexpected change in circumstances such that to refuse leave would be manifestly unjust. (see Jetsport Inc. v. Global Aerospace Underwriting Managers (2013), 2013 ONSC 2740, 115 OR (3d) 772).

[26] The court has repeatedly stated that Rule 48.04(1) is not a procedural rule that is easily set to one side and that setting an action down for trial is not a mere technicality that can be ignored. That is why the test that has developed for granting a party leave to proceed with a discovery-related motion after a party has placed an action on the trial list or consented to this step has a significant hurdle to overcome.

[27] Hurdles of this kind can only be addressed by evidence. I am not satisfied on the evidence that has been filed that there has been either a substantial and unexpected change as the Rule requires, or fundamental change, which is not the test, as Sazant asserts. I see no basis to conclude that to refuse leave would be manifestly unjust on the basis of the record before the court.

[28] I am therefore not prepared to grant leave. While that brings an end to the motion, I can add that had leave been granted, I would have dismissed the motion in any event, as:

• It is not clear that Sazant actually overheard the discussion he refers to, to show that there has been a change in the plaintiff’s employment position;
• The moving party failed to make the tax returns he relies on part of his record and failed to file duplicates with the court after the motion was heard; and
• The moving party has failed to include a list of the questions to which undertakings were given, or the answers that were provided, to allow the court to assess whether further examination is warranted.

[29] The motion is therefore dismissed. If the parties are unable to agree as to costs, I can be spoken to within 30 days.

(original signed) Master Joan M. Haberman Released: June 30, 2016