Bramer v. The Toronto Lawn Tennis Club

Court File No.: CV-16-565686 Date: 2017-03-17 Superior Court of Justice - Ontario

Re: Roel Bramer, Applicant And: The Toronto Lawn Tennis Club, Respondent

Before: Mr. Justice P.J. Cavanagh

Counsel: Robert L. Colson, for the Applicant Kurt K. Pereira, for the Respondent

Heard: March 14, 2017

Endorsement

Nature of Motion

[1] The applicant, Roel Bramer (the “Applicant”), makes application for remedies in relation to his membership at the respondent The Toronto Lawn Tennis Club (the “Club”).

[2] In support of this application, the Applicant delivered an affidavit sworn January 31, 2017 by Michael A. Winterstein (the “Winterstein Affidavit”). Mr. Winterstein is a lawyer in the firm representing the Applicant on this application.

[3] The Club moves for an order striking out a number of paragraphs of the Winterstein Affidavit. The Club submits that the impugned paragraphs (i) constitute argument; (ii) include statements made on information and belief with respect to facts that are contentious and for which the source of such information is not specified; and/or (iii) otherwise relate to matters which are subject to privilege.

[4] The Club also moves for an associated order striking out or expunging certain exhibits to the Winterstein Affidavit on the basis that such exhibits (i) relate to matters of argument; (ii) relate to statements made on information and belief with respect to facts that are contentious and for which the source of such information is not specified; and/or (iii) are otherwise subject to privilege.

[5] The Club, in the alternative, moves for an order striking the impugned paragraphs and the impugned exhibits on the basis that such paragraphs and exhibits are frivolous, vexatious or otherwise an abuse of the process of this court.

[6] The Club also seeks, as may be necessary, an order adjusting the timetabling orders made by Firestone J. and Archibald J. dated January 23, 2017 and February 27, 2017, respectively. The revised timetable provides that delivery of the Club’s application material would follow within 2.5 weeks of receipt of reasons on this motion.

[7] This application has been scheduled to be heard on May 17, 2017.

Applicant Intends to Revise Winterstein Affidavit

[8] After this motion was brought, the Applicant, through counsel, stated that he will make changes to some of the paragraphs of the Winterstein Affidavit to address concerns that the Club had raised. In considering the submissions made on behalf of the parties on this motion, I am treating the Winterstein Affidavit as having been revised to reflect the changes that the Applicant has agreed will be made. These changes are shown in Appendix “A” to the factum delivered on behalf of the Applicant in response to this motion.

Whether the decision on admissibility of impugned statements in and documents appended to the Winterstein Affidavit should be made by the judge who hears the application

[9] At the hearing of this motion, I first raised with counsel for the Club whether it is proper for me to rule on the admissibility of the impugned paragraphs and exhibits as opposed to having the admissibility of the statements and documents that the Club challenges decided by the judge who hears the application on its merits. I heard submissions from counsel for the Club on this question, and I also heard full submissions on the admissibility of the impugned paragraphs and exhibits. I also heard submissions from counsel for the Applicant on the question of whether I should decide on the admissibility of the impugned paragraphs and exhibits and, as well, on their admissibility.

[10] For the following reasons, I have decided to exercise my discretion not to decide whether the impugned paragraphs and exhibits are admissible, and to leave these questions to be decided by the judge who hears the application on its merits.

[11] Rule 25.11 provides that the court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court. The Winterstein Affidavit is a document to which r. 25.11 applies.

Positions of the parties on the timing of this motion

[12] With respect to the timing of this motion, the Club submits:

a. Where it is clear in law that evidence is inadmissible, to leave the evidence on the record is embarrassing and prejudicial to the fair hearing of the motion or application. A party should not be put to the needless expenditure of time and resources in responding to evidence which can have no impact on the outcome of the proceeding.

b. A failure to define the evidentiary case the respondent must meet, and thus the appropriate record, encourages the proliferation of collateral issues, and can result in unnecessarily complicated, expensive and lengthy proceedings. It is preferable for such issues to be decided at a preliminary motion.

c. Defining the record in advance of a hearing enhances the ability of the Court to focus on the merits. Limiting a record by excluding evidence that is improper and inadmissible in advance may be appropriate and desirable. This has an enhanced importance in applications where the proper scope of affidavit evidence is more narrowly circumscribed.

d. In applying the legal principles to the question of timing of a motion such as this, each case must be considered individually on its own facts.

[13] In support of its submissions, the Club relies upon Chopik v. Mitsubishi Paper Mills Ltd. (2002), 26 C.P.C. (5th) 104 (S.C.J.), Lockridge v. Ontario (Director, Ministry of the Environment), 2012 ONSC 2316, [2012] O.J. No. 3016 (S.C.J.) and Allianz Global Risks US Insurance Co. v. Canada (Attorney General), 2016 ONSC 29, [2016] O.J. No. 190 (S.C.J.).

[14] The Applicant submits that I should exercise my discretion under r. 25.11 not to decide whether the impugned paragraphs and exhibits are admissible in evidence on this application, and leave adjudication on admissibility of the statements and documents to the judge who hears the application on its merits. In support of this submission, the Applicant relies on 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), CarswellOnt 4721 (Gen. Div.), Allianz, and Neighbourhoods of Windfields Limited Partnership v. Death, [2007] O.J. No. 3042 (S.C.J.).

Applicable legal principles

[15] In the Propco Holdings case, Dambrot J. described the history of r. 25.11 and considered the breadth of the power under this rule to strike out all or parts of an affidavit for scandalousness, frivolousness, or vexatiousness, or for abuse of process. Dambrot J. then addressed when the court should, on a motion brought under this rule, review affidavits in advance of the hearing of the motion to be argued later. He wrote:

It is apparent, to me at least, that the rule does not contemplate that a Master should review in advance affidavits filed on a motion which will be argued later before an undetermined Master or Judge, and make evidentiary rulings on admissibility or relevance. Our system ordinarily reserves that function to the judicial officer hearing the merits of the matter. I view that as desirable, for two reasons. First, such rulings are better left to the person charged with acquiring a full understanding of the matter, who is then best positioned to balance the competing arguments and rule wisely. Second, encouraging interlocutory rulings and appeals on admissibility can only serve to fragment proceedings and encourage delay, as evidenced by this case, without appreciably assisting the ultimate decider of the matter in his or her task.

In Propco Holdings, the affidavit in question was filed for use on an interlocutory motion for security for costs.

[16] In Neighbourhoods of Windfields Limited Partnership v. Death, [2007] O.J. No. 3042 Ferguson J. decided motions brought by certain respondents in an application to strike out portions of numerous affidavits filed in support of the application. In Neighbourhoods of Windfields, the passage from Propco Holdings quoted above was cited by Ferguson J., at para. 26. He concluded that it is very difficult to set out principles which would apply to all cases where one party seeks to strike material pursuant to rule 25.11 or by asking the court to exercise its inherent jurisdiction, and he wrote that he was inclined to the view that each case must be considered in its own context.

[17] Nevertheless, Ferguson J. accepted the general view expressed in Propco Holdings that evidence should not be struck on an interlocutory motion unless there is some special reason to do so. He identified the underlying rationales for this view which he expressed, at para. 33:

a. To grant relief on such a motion will encourage more such motions and simply create extra cost and delay;

b. There is no need to make such rulings because the judge who will hear the merits will be in an equally good or better position to determine admissibility;

c. It is an inherent part of our judicial process that judges frequently learn of, but disregard, inadmissible evidence and are presumed not to take it into account;

d. In addition, the judge hearing the merits can sanction any inappropriate introduction of evidence by disregarding it and awarding costs.

Ferguson J. wrote, at para. 37, that a special reason which in some cases might warrant granting relief on such a motion is where the impugned material is clearly inappropriate and to respond to it would entail unreasonable effort or cost or would result in further voluminous material being filed. Ferguson J. followed a process by which he considered the consequences of striking out the targeted evidence which, he concluded, would result in further cost and delay, and he balanced those consequences against the possible benefits of striking any inappropriate evidence.

[18] In Chopik, Shaughnessy J. decided a motion for an order striking out certain paragraphs from the plaintiff’s statement of claim and from two affidavits in support of the plaintiffs’ class action certification motion. Shaughnessy J. expressed, at para. 26, the following principle that he considered to be relevant to the motion:

Where it is clear in law that evidence is inadmissible, to leave the evidence on the record is embarrassing and prejudicial to the fair hearing of the motion or application. A party should not be put to the needless expenditure of time and resources and responding to evidence which can have no impact on the outcome of the proceeding.

It is not apparent from the decision in Chopik that the plaintiff objected to having the motion concerning admissibility of evidence on the certification motion heard and decided on a preliminary motion before the hearing of the certification motion itself. The decision does not address the circumstances in which the court should exercise discretion not to decide questions of admissibility of affidavit evidence before the hearing of the motion or application on the merits.

[19] In Lockridge, the respondents to an application for judicial review moved before the hearing of the application to strike out some or all of the affidavit evidence filed by the applicants. Harvison Young J., who heard argument on these issues over the majority of four days, wrote that the respective positions of the parties reflect the two principles which run through the jurisprudence on the subject, namely, on the one hand, the reluctance of courts to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits and, on the other hand, the practice that the court had endorsed of resolving issues about the admissibility of affidavit evidence prior to the hearing before the Divisional Court panel (citing Sierra Club v. Ontario 2011 ONSC 4085, at paras. 7 to 8). In Lockridge, Harvison Young J. was able to reconcile these two principles by striking some of the affidavit evidence while, with respect to much of it, leaving the decisions on admissibility and weight to the panel hearing the application.

[20] In Allianz Global, a 2016 decision, Master MacLeod considered the decisions in Propco Holdings, Neighbourhoods of Windfields, Lockridge and Chopik. Master MacLeod referred to the competing principles that were enunciated by Harvison Young J. in Lockridge and wrote:

On the one hand courts are generally reluctant to deal with issues of admissibility and relevance in advance of the hearing on the merits and the court must take care not to usurp the role of the court that will consider the merits. On the other hand defining the record appropriately in advance of the hearing enhances the ability of the court to focus on the merits.

Master MacLeod considered that the latter principle has enhanced importance in applications, applications for judicial review and perhaps in class proceeding certification motions where the importance of those hearings, the length and complexity of those hearings and concerns for judicial economy suggest that limiting the record by excluding evidence that is clearly improper and inadmissible in advance may be appropriate and desirable.

[21] Master Macleod adopted the law as set out in Neighbourhoods of Windfields to the effect that preliminary motions to strike affidavits in advance of a main motion should be discouraged and should only be granted for special reasons.

[22] I agree with the statement of Ferguson J. in Neighbourhoods of Windfields that, on a motion such as this, each case must be considered in its own context. There are clearly competing interests that a court must balance in deciding whether to exercise discretion under r. 25.11, or under its inherent jurisdiction, to strike out all or parts of an affidavit before a hearing of the motion or application on its merits. I also agree that, generally, evidence should not be struck out on an interlocutory motion unless there is some special reason to do so.

[23] I agree with Ferguson J. that a special reason could arise in some cases where the impugned material is clearly inadmissible and to respond to it would entail unreasonable cost or effort or would result in voluminous additional materials being filed. Another example of a special reason could arise where an affidavit contains material that is clearly scandalous and vexatious, such as where it is clearly irrelevant and impugns the behaviour of a party. It has been held that, in such circumstances, it is proper for the court to intervene in advance of the hearing of the motion or application: Belokon v. Kyrgyz Republic, (2015), ONSC 5918, at paras. 21-24; leave to appeal denied: (2016), ONSC 1075 (Div. Ct.).

Application of legal principles to this motion

[24] I have considered these principles as they relate to the Club’s motion.

[25] With respect to the objections that some of the statements in the Winterstein affidavit are not statements of fact (as required by r. 4.06(2) and r. 39.01(5)), but argument, these statements can be considered by the judge who hears the application, and she or he can decide whether these objections are well founded and treat the statements accordingly. I do not consider that the statements to which objection is made, if not struck out on this motion, would prejudice or delay the fair hearing of the application.

[26] The Club also submits that some statements, and related exhibits, in the Winterstein Affidavit violate r. 39.01(5) and are thereby inadmissible because the facts are contentious and because the affidavit does not disclose the source of the information upon which the deponent relies. In my view, whether these objections are well founded should be decided by the judge who hears the application on its merits. This judge will have a deeper understanding of the full evidentiary record than I can achieve on the material before me on this motion, and will be in a better position to decide whether the facts are truly contentious, and whether the deponent has failed to identify the source of the information upon which he relies.

[27] The Club also submits that some statements in and exhibits to the Winterstein Affidavit should be struck out because the statements and documents are subject to lawyer and client privilege that the Club is entitled to assert. In my view, the validity of these objections should also be decided by the judge who hears the application on the merits. This is not a situation where a party is resisting production of relevant documents on grounds of privilege. These documents are already in the possession of the Applicant. The Applicant denies that the statements and documents that will remain in the Winterstein Affidavit after it is revised to give effect to the changes that the Applicant has agreed to make are privileged. In my view, to allow the statements and documents in the Winterstein Affidavit that are impugned on the ground that they contain privileged content to remain until the judge who hears the application decides whether such statements and documents are admissible will not prejudice or delay the fair hearing of the application.

[28] In my view, there are no special reasons to depart from the general approach that statements in affidavits should not be struck out on an interlocutory motion under r. 25.11, or pursuant to the inherent jurisdiction of the court, and that decisions as to the admissibility of such statements should generally be left with the judge who hears the motion or application.

Disposition

[29] For these reasons, the Club’s motion is dismissed.

[30] If the parties are unable to resolve costs, the Applicant shall make brief submissions in writing within 20 days, not to exceed three pages, excluding the costs outline. The Club shall make brief submissions in response within 10 days thereafter not to exceed three pages, and the Applicant, if so advised, may make brief reply submissions within 5 days thereafter, limited to one page.

Mr. Justice P.J. Cavanagh

Date: March 17, 2017