CITATION: Boodhoo v. Persaud, 2017 ONSC 4818

COURT FILE NO.: 01-1123/07

DATE: 20170810

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

DIANE BOODHOO and DIANE BOODHOO as estate trustee of the ESTATE OF ALICIA BOODHOO, Plaintiffs

– and –

THAKUR (JOHN) PERSUAD and SURUJDAI (SHANTI) PERSAUD, Defendants

BEFORE: F.L. Myers, J.

COUNSEL: Robert P. Sullivan and Wade Morris, counsel for the Plaintiff

Mark M. Persaud, counsel for the Defendants and S. Saeed, student-at-law

HEARD: August 9, 2017

ENDORSEMENT

[1] Several procedural issues that require resolution were raised in a case conference held by telephone.

Scheduling the Costs Hearing

[2] There is currently a costs hearing scheduled for oral argument on September 19, 2017 in respect of the decision dated June 22, 2917 reported at 2017 ONSC 3856. Mr. Persaud, counsel for the defendants, advises that he is seeking advice as to whether to adduce evidence for the costs hearing. The defendants may also retain independent counsel for the hearing in light of the nature of the issues that they have raised (involving allegations of inappropriate conduct of counsel opposite toward their counsel). Mr. Persaud therefore asks for time to consider these matters and seeks a filing deadline of September 4, 2017.

[3] On consent, the defendants shall deliver all evidence on which they intend to rely for the costs hearing by September 4, 2017. The plaintiff is to deliver all evidence on which she intends to rely in response, if any, by September 15, 2017. As the date for response by the plaintiff is set without counsel seeing the evidence to be adduced by the defendants, if any, the date is necessarily subject to a request by the plaintiff for further time to respond if necessary. That would likely also involve an adjournment of the costs hearing. Mr. Persaud accepts that outcome as he submits that there is no urgency to the hearing date itself.

[4] If the costs hearing is not adjourned, the parties will exchange and file their factums by 2:00 pm on September 18, 2017.

Discovery of the Defendants

[5] On May 11, 2017 the court fixed the schedule for the parties’ oral examinations for discovery. In doing so the court directed as follows:

Rule 34.12 of the Rules of Civil Procedure applies to all examinations for discovery in this action. That is, all questions to which objections are taken shall be answered in full at the time despite the objection. The answers given to any questions to which an objection is taken may not be used in evidence without a ruling being obtained at the hearing or trial at which such evidence is sought to be adduced. The only exception to the requirement for the witness to answer questions to which objection is taken is for questions objected to on the basis of lawyer and client privilege. Questions that are claimed to elicit a response that offends the lawyer and client privilege do not need to be answered unless or until a ruling is obtained.

[6] Apparently, counsel who attended the examinations for discovery of the defendants as agent for Mr. Persaud took the position that he had no authority to give undertakings. He therefore had his clients take under advisement all questions to which undertakings were sought. Mr. Persaud submits that the direction above applied only to questions eliciting evidence and not those that sought undertakings.

[7] In my view, the instructions of counsel attending an examination have no bearing on this issue. By taking matters under advisement, the defendants were failing to answer questions. Counsel does not need specific instructions for a party to be bound to answer proper questions on discovery including giving undertakings. The court’s direction under Rule 34.12 defers the issue of whether a question is a proper question to the trial or other hearing at which any evidence elicited by the question is sought to be used. Whether Mr. Persaud, as counsel and principal to his agent would be personally bound is similarly not in issue. The defendants were directed to answer all questions that did not elicit evidence covered by lawyer and client privilege and they failed to do so.

[8] The transcript of the examination is apparently expected to be available this week. The defendants are to provide responses within thirty (30) days of today to all questions taken under advisement that do not elicit evidence covered by lawyer and client privilege. The plaintiff remains at liberty to ask follow-up questions in writing or by oral examination in the ordinary course.

The Defendants’ New Action

[9] By statement of claim dated May 29, 2017 the defendants commenced a new action against the plaintiff under Court File No. CV-17-576024. To lessen confusion, I will continue to refer to the parties by reference to their positions as plaintiff and defendants in this estates case in which this endorsement is styled. Using the parties’ actual names would confuse matters further given that the defendants and their counsel share the same last name.

[10] In their new action, the defendants essentially seek damages against the plaintiff as a result of an allegation that the plaintiff forged her mother’s will. The forgery allegation has also been raised by the defendants in this estates action. See para. 3 of the May 11, 2017 endorsement referred to above.

[11] The plaintiff asks that the two actions be consolidated and be case managed together. She also asks to schedule a motion to strike the new action against her under Rules 21.01 (3) (another proceeding pending) and 51.06 (admissions). For that motion she requests an order allowing her to use the transcripts for discovery of the defendants in this estates action.

[12] Mr. Persaud agrees with the submission that the two actions should be tried together. In fact, para. 28 of the new statement of claim expressly pleads that outcome. But, he submits that the court should not manage both actions. He says that the defendants, as plaintiffs in the new action, are concerned that the court may be biased against them. The allegation relates to a prior case conference in which the plaintiff’s counsel complained about the new action having been brought. Mr. Persaud advised that the nature of his clients’ allegation is that when the plaintiff inappropriately brought before the court the new action that had not been assigned to the court for case management, the court should have declined to hear anything about it. Instead, the court gave legal advice to counsel for the plaintiff that they could move to strike the new action if the plaintiff had concerns with it. As such, he contends that the court commented inappropriately on a matter that was not before it and in doing so gave grounds for the defendants to believe that the court had prejudged the outcome of the new matter.

[13] Mr. Persaud submitted that he has not been instructed to move to disqualify me as a result of the bias allegation that he raised. Rather, in his submission, the allegation is a basis on which the court should decline to case manage the new action.

[14] There is no need to deal with the question of consolidation of the two actions today. Until the question of whether or how the new action proceeds is determined, there is no reason to consider joint case management or tying the hands of a trial judge with a consolidation or joint trial order. The immediate concern is that the defendants want the plaintiff to defend the new action while the plaintiff wants to bring on her motion to strike the new action before defending. To accommodate both goals, the motion should be brought on quickly so as to determine whether a defence is required or if some other or different process follows.

[15] The problem with bringing on the motion quickly is that the plaintiff wishes to use the transcripts from the defendants’ examinations for discovery in this action as evidence on the motion. The plaintiff’s proposed use of the transcripts in this action to establish admissions on which she wishes to rely to strike the new action may raise issues under the deemed undertaking Rule 30.1. Mr. Persaud submits that it would be unfair if the plaintiff can have access to the defendants’ transcripts for the motion before the defendants have conducted their examination for discovery of the plaintiff so that they too can have access to discovery transcripts on the motion. The plaintiff agrees that the proposed motion will not be scheduled for hearing until after the dates scheduled for the plaintiff’s examination for discovery next month. While this suggests that the defendants consent to the proposed use of the transcripts under Rule 30.1.01 (4), Mr. Persaud asks for time to obtain instructions in that regard. Why this highly technical question of evidentiary procedure would be a matter for lay instructions rather than one for counsel is not clear. Nevertheless, if the matter is not resolved on consent, then the court will have to consider the issues under Rule 30.1.

[16] Accordingly, the plaintiff shall deliver her motion record on the proposed motion to strike by August 25, 2017. If the parties are unable to agree on a protocol for the use of discovery transcripts in this action on the motion, then the plaintiff may convene a case conference at which I will resolve summarily the questions of whether an exception order is required under Rule 30.1.01 (8) and, if so, whether this is a proper case for an exception order under that rule. It seems to me that this is the type of matter which can identified for resolution under Rule 50.13 (5) and be resolved summarily under Rule 50.13 (6).

Case Management

[17] I make no decision today as to whether I will hear the plaintiff’s motion or if I will just ready it for hearing. There is no need to deal with ongoing case management of the new action until the motion is resolved as that outcome will affect the form of whatever proceedings go forward.

[18] If the defendants wish to raise an issue regarding judicial bias, they should do so formally and not as a submission concerning scheduling. I am open to hearing and considering any concerns that the defendants may have.

[19] If the defendants wish to bring a motion to have the court recuse itself, they should first deliver a motion record and then request a case conference to discuss scheduling. If the defendants propose to act on this issue, it should be resolved right away to avoid interfering with the scheduled matters.

F.L. Myers, J.

Date: August 10, 2017