Superior Court of Justice - Ontario
RE: Bonnie McDonald, Plaintiff
and
The Regional Municipality of Peel, Defendant
BEFORE: Tzimas J.
COUNSEL: Bonnie McDonald, Self-Represented Carla Black, Counsel, for the Defendant
HEARD: June 28, 2016
ENDORSEMENT
1The Defendant, the Regional Municipality of Peel, (Peel), brought a motion to quash the Plaintiff’s, Ms. McDonald’s, summons to witness of Janette Smith, currently the Commissioner of Health for the Regional Municipality of Peel. In the alternative or in addition, Peel sought an order that Ms. McDonald not be permitted to summons Ms. Smith as a witness. Peel is seeking the said relief for three reasons.
2The first two reasons relate to the adequacy of the summons pursuant to Rule 53.07 of the Rules of Civil Procedure. The Defendant submitted that the Plaintiff failed to meet the requirements contemplated by the rules and that in fact, there is no valid summons for Ms. Smith’s attendance.
3The third reason rests with the Peel’s conclusion that Ms. McDonald’s attempt to call Ms. Smith as a witness amounts to an abuse of process. Peel relied expressly on Ms. McDonald’s testimony in chief to argue that given her admission that many of her allegations against Peel were based on her own subjective suspicions over the actions of a number of individuals, including those of Ms. Smith, if Ms. McDonald were allowed to call Ms. Smith, she would be subjected to nothing more than a “fishing expedition”. Furthermore, given Peel’s defence to date and Ms. Smith’s answers to written discovery questions, all that Ms. McDonald would obtain from Ms. Smith would be a denial of the allegations, some of which are nothing more than embarrassing bald allegations.
4Ms. McDonald objected to the motion and vehemently denied any suggestion that she would be undertaking a “fishing expedition” or engaging in an abuse of process. In her view, Ms. Smith was hostile and hateful towards her and most significantly did everything she could to block Ms. McDonald’s attempts to transfer out of Peel Manor. In Ms. McDonald’s mind, Ms. Smith had various reasons to want to block her transfer. Ms. McDonald submitted that Ms. Smith’s involvement in the “re-organizational transfer” amounted to a “wild goose chase” that ultimately did not yield any positive results for Ms. McDonald. Ms. McDonald did not dispute that some of her concerns were based on her own suspicions, but she also submitted that she had direct exchanges with Ms. Smith on various occasions.
5With respect to the requirements of Rule 57.03, Ms. Macdonald explained that she understood from counsel that she would be admitting service of Ms. Smith’s summons and that there was nothing further that was required on her part. She said she was most surprised to learn on June 7, 2016 of Peel’s position on this point.
6I have considered the parties’ submissions, the Rules of Civil Procedure, and the applicable cases on this issue. As a preliminary comment, I accept and wish to underscore Peel’s submission that self-represented individuals must respect the Rules and that technical requirements are just as important as the substantive issues and must be observed. I wish to echo my comments to Ms. McDonald that telling the court that she did her best, if that “best” falls short of the rule requirements, will be of little assistance to the court. At the end of the day, rules and procedures are there for a reason and must be respected. The court will have to make findings of fact on the totality of the evidence before the court. Evidentiary and other deficiencies cannot be remedied on the strength of a party merely trying hard and doing his or her best. I also refer Ms. McDonald to my cautions to her in my Endorsement of June 1, 2016, which included the court’s encouragement that she obtain legal advice and guidance to eliminate the various deficiencies.
7Turning to the merits of Peel’s motion and beginning with the issue concerning the sufficiency of the summons for Ms. Smith, having regard for the requirements of Rule 57.03 and the relevant chronology of exchanges between the parties, I conclude that Ms. McDonald’s confusion over Peel’s position regarding the adequacy of the summons for Ms. Smith is justified.
8On June 1, when the parties were last before me, I was left with the impression that the summons of Ms. Smith was not in issue, that Peel would be accepting service of the summons for Ms. Smith and that the motion to be brought by Peel would be seeking an order to quash the summons.
9In the exchanges between the parties, I find that the issues and the specific concerns over Ms. Smith’s compliance with Rules 53.04 and 53.07 became conflated. The discussion began with an indication by Peel that Ms. McDonald would have to re-serve the summons she originally left at Ms. Smith’s office and that she could do so by sending it to Peel’s counsel. Ms. McDonald seemed to accept that but then the parties disagreed over the requirement for a Notice of Intention to Summons contemplated by Rule 53.07. The confusion between a summons and a Notice of Intention to Summons was never resolved. It is not clear if Ms. McDonald ever re-served the summons. In any event, nobody disputes the original summons left at Ms. Smith’s office. Personal service is what is at issue.
10Insofar as compliance with Rule 53.07 is concerned, the overriding objective of that Rule is notice. Nobody can say that Ms. McDonald’s decision to call Ms. Smith came as a surprise. The chronology leading up to trial about who would be calling what witnesses was not helpful to Ms. McDonald and left her scrambling. Although it is recognized that representations about who a party’s witnesses might be at trial are not set in stone and parties are not bound to call those witnesses, on the facts of this case until May 6, 2016, Ms. McDonald was operating under the assumption that Peel would be calling Ms. Smith. Peel did not disabuse Ms. McDonald of that assumption until May 6, 2016. The trial started on May 13, 2016.
11I accept that Ms. McDonald felt reassured about Ms. Smith’s participation at trial such that, at least until May 6, 2016 she would not have taken steps to secure her attendance. Thereafter, Ms. McDonald should have taken steps to comply with the Rules, including a late request for the validation of the service. However, having regard for all the circumstances as well as Rule 1.04, I do not consider this particular failure to be fatal, especially since this trial will not be resuming until July 12, 2016. If Ms. McDonald has not already done so, she must serve the summons for Ms. Smith on Peel counsel, as per counsel’s direction forthwith. On the parties return to court on July 12, 2016, upon receiving the appropriate confirmation of service, I will be prepared to validate and regularize the service of the said summons. I also note that on that return the first order of business will be Ms. McDonald’s cross-examination followed by the calling of other witnesses. Ms. Smith may not be called for a few days, absent a specific arrangement. This timetable remedies any concerns there might be over some of the technical deficiencies with the Summons and the Notice.
12Insofar as the potential for an abuse of process is concerned, while the court noted Ms. McDonald’s admissions in her examination in chief about her suspicions and impressions, there was also evidence before the court of Ms. McDonald’s direct interactions with Ms. Smith. In such circumstances it would be a drastic order to prevent Ms. McDonald from calling the evidence she wishes to call. This situation is distinguishable from Dunphy v. Peel Living, [2009] O.J. No. 1792 where the Court concluded that the Minister of the Environment for the Province of Ontario was not in a position to give relevant and material evidence to the court in regard to the issues in dispute in that action. The same cannot be said in this case. What Ms. McDonald should be considering very carefully is whether Ms. Smith’s evidence, though material and relevant, will actually assist her.
13I also wish to remind the parties that the court is there to disallow an abuse of process or a fishing expedition. Ms. McDonald must appreciate that she will be examining Ms. Smith in chief and Peel will have the right of cross-examination. Subject to exceptional circumstances that would require the court’s leave, pursuant to either the Evidence Act, R.S.C. c. C-5 or the common law, Ms. McDonald will not be cross-examining Ms. Smith. She is also cautioned that the court will also disallow any questions that are irrelevant to the material issues in dispute. Questions that include hearsay, and that seek to reference or implicate others in various conversations amounting nothing more than negative innuendo will be disallowed. As well, questions that are insulting, that are scandalous, or that are designed to embarrass Ms. Smith will also be disallowed. In other words, Ms. McDonald must undertake an examination that is respectful and within the appropriate evidentiary parameters.
14With respects to costs of this motion, it is appropriate that submissions be reserved to the conclusion of this trial but be in addition to the costs of the trial.
Tzimas J.
Date: June 30, 2016
CITATION: McDonald v. Regional Municipality of Peel, 2016 ONSC 4377
COURT FILE NO.: CV-09-5805
DATE: 2016-06-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bonnie McDonald and The Regional Municipality of Peel
BEFORE: TZIMAS J.
COUNSEL: Bonnie McDonald, Self-Represented Carla Black, Counsel, for the Defendant
ENDORSEMENT
Tzimas J.
DATE: June 30, 2016