Ali v. Gibbons, 2017 ONSC 5013

CITATION: Ali v. Gibbons, 2017 ONSC 5013

COURT FILE NO.: CV-14-516892

MOTION HEARD: 2017-07-07

REASONS RELEASED: 2017-08-23

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

YASMIN AHMED ALI

Plaintiff

• and -

JAMES GIBBONS and KAREN ONUSKA

Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: E. Lipetz Email: elipetz@bensonpercival.com -for the Defendant, James Gibbons

P. Tesi Email: doli@dolilaw.com -for the Plaintiff

REASONS RELEASED: August 23, 2017

Reasons For Endorsement

I. Background

[1] This is a motion by the defendant, Peter Gibbons (“Gibbons”) pursuant to Rule 34.07(1) to compel the plaintiff, Yasmin Ahmed Ali (the “Plaintiff”) to attend at an examination for discovery in person in the jurisdiction of her choice on or before January 7, 2018 at her own expense.

[2] The Plaintiff resided in Kitchener-Waterloo, Ontario at the time of the accident giving rise to this action. She resided in Edmonton, Alberta at the time this action was commenced and now resides in Saskatoon, Saskatchewan. Both Gibbons and his co-defendant, Karen Onuksa (“Onuksa”, collectively with Gibbons, the “Defendants”) reside in Kitchener-Waterloo.

[3] Alternatively, Gibbons proposes that the examination for discovery of the Plaintiff be conducted by Gibbons’ counsel in person in Saskatoon with other counsel, including the Plaintiff’s counsel, having the option to attend in person at their own expense or participating by video conference and sharing the costs of video conferencing. The Defendants would bear the costs of a court reporter and reporting facility in Saskatoon.

[4] The Plaintiff opposes Gibbons’ motion and submits that if her examination for discovery is to proceed in person then it should take place in Toronto where her counsel is located and that her travel and accommodations should be paid for by the Defendants. Gibbons is agreeable to examinations in person in Toronto on the condition that the Plaintiff pays for her own travel and accommodations. Alternatively, the Plaintiff submits that if the examination is to take place in Saskatoon with participation by video conference, then Gibbons’ counsel should not be permitted to attend in person unless Gibbons also pays for the costs of the Plaintiff’s counsel to attend in person.

[5] This dispute over the location and manner of the discovery of the Plaintiff and who should pay for what has been ongoing for approximately 18 months and brought these proceedings to a halt.

[6] This action arises from a motor vehicle accident which occurred on or about January 26, 2013 in Kitchener. The Plaintiff commenced this action by Statement of Claim dated November 26, 2014 and claims damages in the amount of $1,000,000.

[7] By e-mail exchange in late March 2016 and early April 2016, counsel for all parties agreed that the examination for discovery of the Plaintiff would proceed in Edmonton for two days starting on August 26, 2016 and that the Defendants would be examined on August 22, 2016 in Kitchener. By letter dated April 12, 2016, Gibbons’ counsel confirmed this schedule and served Notices of Examination. There was no discussion or agreement with respect to attendance money for the deponents or the costs of counsel’s attendance and the parties did not enter into a discovery plan.

[8] On August 15, 2016, Onuska’s counsel advised Gibbons’ counsel that the Plaintiff’s counsel indicated that they were no longer available for the discoveries scheduled to proceed in Edmonton and Kitchener on August 22 and 26, respectively. Plaintiff’s counsel sent an email to Gibbons’ counsel on August 16, 2016 at 11:09 a.m. confirming that he was still available for discoveries in both Kitchener and Edmonton on the agreed upon dates. However, 30 minutes later, at 11:39 a.m., Plaintiff’s counsel sent another email stating that “upon further consideration we believe that we should reschedule the two discovery dates to future dates that are convenient to all parties.” Plaintiff’s counsel later advised that they had failed to diarize the discovery dates.

[9] On August 22, 2016, Onuska’s counsel advised Gibbons’ counsel that Plaintiff’s counsel had advised that the Plaintiff had moved to Saskatoon. Also on August 22, the Plaintiff’s counsel sent an email to Defendants’ counsel requesting that the Plaintiff’s examination for discovery take place in Toronto. Plaintiff’s counsel stated that the costs would be “a fraction” of the costs for all 3 counsel to travel and stay overnight in Edmonton adding “therefore we respectfully request that all discoveries to (sic) take place in the most convenient and least expensive location which is Toronto.” Again, Plaintiff’s counsel did not raise the issue of the Defendants paying for the Plaintiff’s attendance costs.

[10] By email dated September 7, 2016, Gibbons’ counsel requested that Plaintiff’s counsel clarify what costs the Plaintiff was requesting. Later that day, Plaintiff’s counsel, for the first time, requested attendance money from all parties requiring the Plaintiff to attend at an examination for discovery.

[11] In an exchange of emails on October 5, 2017, Gibbons’ counsel proposed that the Plaintiff choose where she wished to be examined, in Toronto or Saskatoon, with all parties paying for their own transportation expenses. Plaintiff’s counsel rejected this proposal and advised the Defendants that they had the following options: i.) examine the Plaintiff by video conference in Edmonton at the Defendants’ expense with no counsel attending in person; ii.) pay for the Plaintiff’s travel expenses for her to be examined in person in Toronto; or iii.) obtain a court order compelling the Plaintiff to attend for examination in Toronto in person at her own expense. Plaintiff’s counsel confirmed later that day that the Plaintiff actually resided in Saskatoon, not Edmonton.

[12] Gibbons’ counsel advised by email on October 7, 2016 that they had instructions to bring this motion, however, they made the current, standing proposal set out above that the Plaintiff’s examination take place in Saskatoon with Gibbons’ counsel attending in person and the Plaintiff’s and Onuksa’s counsel having the option of attending in person at their own expense or by video conference, the costs to be shared by the parties using the video conference. Plaintiff’s counsel rejected this proposal and reiterated their previous position that the Plaintiff’s examination for discovery take place by video conference with no counsel present or the Plaintiff would attend in person in Toronto at the expense of the Defendants.

II. The Law and Analysis

[13] Rule 34.07 provides as follows:

“(1) Where the person to be examined resides outside Ontario, the court may determine,

(a) whether the examination is to take place in or outside Ontario;

(b) the time and place of the examination;

(c) the minimum notice period;

(d) the person before whom the examination is to be conducted;

(e) the amount of attendance money to be paid to the person to be examined; and

(f) any other matter respecting the holding of the examination.

(4) Where the person to be examined resides outside Ontario and is not a party or a person to be examined on behalf or in place of a party, the examining party shall pay or tender to the person to be examined the amount of attendance money fixed by the order under subrule (1).”

[14] The test under Rule 34.07 for determining the location of examinations for discovery and any other matter respecting the holding of the examination is what is just and convenient for both parties, based solely on the circumstances in each particular case. (Midland Resources Holding Ltd. v. Shtaif, 2009 CanLII 67669 (ON SC), 99 O.R. (3d) 550 (S.C.J.) at paras. 9 and 10; Ronald Humphrey v. Attorney General of Canada, 2016 ONSC 2659 at para. 16). There is no prima facie right of any party resident outside of Ontario to be examined in any location including where they reside (Midland at para. 9; Humphrey at para. 22).

[15] This test, and all Rules, engage Rule 1.04(1) which provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Further, Rule 1.04(1.1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[16] The court has the authority to order that the examination of a person who resides outside of Ontario proceed by video conference. Examinations by video conference should be encouraged to help address the high costs of litigation which furthers the objectives of Rule 1.04 (Midland at paras. 20-22; Concord Adex Inc. v. 20/20 Management Ltd., 2017 ONSC 3897 at para. 11).

[17] The dispute between the Plaintiff and Gibbons arises largely from issues regarding travel, accommodation and other costs which fall under Rules 34.07(1)(e) and (f) rather than the location of the examination under Rules 34.07(1)(a) and (b). The parties are agreeable to holding the examination in person in Toronto or by video conference in Saskatoon, however, they disagree on who should pay for the Plaintiff’s travel costs to Toronto and which counsel, if any, should be in attendance in Saskatoon (which is an issue of both fairness and costs).

[18] While Rule 34.07(4) provides that non-parties who do not reside in Ontario or non-residents being examined in place of parties must receive attendance money, there is little guidance on attendance money and costs with respect to parties, like the Plaintiff, who reside outside of Ontario.

[19] In Midland, Newbould J. held that it was just and convenient for the defendants to have the choice of conducting an examination for discovery of a plaintiff in person in London, England (as opposed to Toronto) or by video conference. In that case, the plaintiff to be examined resided in Moscow and London and suffered from a serious back injury which inhibited his ability to travel. With respect to costs, given the burden of travelling to London, Newbould J. held that the expenses of defendants’ counsel would be paid by the deponent plaintiff but that the costs of any defendants who attended would be left to the trial judge. As Newbould J. observed at paragraph 18(iii) “this strikes me as more of a cost issue more than anything else, and a relatively minor one at that”.

[20] In Humphrey, Master Champagne ordered that it was convenient, cost-effective and expeditious for the examination for discovery of a plaintiff resident in Atlanta, Georgia, who was unable to travel to Canada because of his criminal record, to proceed by video conference. The defendant proposed that defendant’s counsel attend in person with plaintiff’s counsel attending by video conference if they did not want to attend in person. Master Champagne concluded that for the proceedings to be fair and just, counsel for both parties should either be in the room with the plaintiff or both appearing by video conference “in order for the playing field to be level and perceived as such by the plaintiff” (Humphrey at para. 23).

[21] In the present case, there is no evidence, unlike in Midland and Humphrey, of any medical conditions or other issues that would prevent or inhibit the Plaintiff’s travel to Toronto. Further, unlike in Midland and Humphrey, no evidence has been filed with respect to the costs associated with the various options proposed, including video conferencing and the Plaintiff’s travel costs to Toronto.

[22] The Plaintiff, relying on Humphrey, submits that it would be unfair for Gibbons’ counsel to conduct an examination of the Plaintiff in person in Saskatoon with the Plaintiff’s counsel present by video conference. Therefore, the Plaintiff argues that Gibbons should either pay for the costs of the Plaintiff’s counsel to attend in person or pay for the Plaintiff’s travel costs to attend in person in Toronto.

[23] I agree with the Plaintiff, as concluded by Master Champagne in Humphreys, that it would be unfair and uneven for Gibbons’ counsel to conduct the examination for discovery of the Plaintiff without Plaintiff’s counsel present in the room. While there is no evidence before me as to the costs, it is reasonable to conclude that the costs for both Gibbons’ and the Plaintiff’s counsel to travel to Saskatoon to attend in person would not be the most expeditious and least-expensive option. This would essentially constitute examination in person in Saskatoon, requiring at least 2 of the 3 counsel to travel and stay overnight with all of the related fees and disbursements. This would defeat the purpose and costs savings of examination by video conference. Therefore, if the examination for discovery is to proceed by video conference, then the Plaintiff shall be in Saskatoon and all counsel shall be at a video conference facility in Toronto, where they are all located.

[24] This leaves the parties with a choice between video conferencing and an examination for discovery in person in Toronto. All counsel are located in Toronto, therefore, other than the costs of the court reporter and facilities, the only material costs are the Plaintiff’s travel, meals and accommodations to attend in person in Toronto.

[25] I agree with Master Champagne’s comments at paragraph 22 of Humphreys that Midland does not stand for the proposition that a defendant has the right to choose to examine a plaintiff in person rather than by video conference. However, I conclude that, in the present circumstances, providing such a choice leads to the most just, expeditious and cost-efficient result for the parties.

[26] Providing Gibbons with a choice is consistent with both the fact that the Plaintiff has agreed throughout this dispute to permit Gibbons to choose from various options and the approach taken by Newbould J. in Midland. Unlike in Humphreys, as there is nothing such as a criminal record which prevents or inhibits the Plaintiff from travelling, both an examination in person and by video conference are practical options in the present case. Further, similar to Midland, this is an issue of costs and given the limited parties, the limited time of the discoveries and limited distance the Plaintiff would have to travel to attend in person, whatever the difference in costs between the two options appears to be non-material in the circumstances, and will be less so if the costs are shared. Therefore, this should not limit the parties to one option.

[27] With respect to who should pay what costs, I disagree with Plaintiff’s counsel that the Plaintiff should not be required to pay for any costs of video conferencing or her travel to Toronto. The Plaintiff is a party to this action. She is not a non-party or a party being examined on behalf of or in place of a party and therefore, she has no automatic entitlement under the Rules to attendance costs. In fact, this is the Plaintiff’s action, which she commenced in Ontario when she was resident in Edmonton, as a result of an automobile accident in Ontario, where the Defendants both reside in Ontario and where her own and the Defendants’ counsel are all located in Toronto.

[28] The Plaintiff previously agreed to be examined in person in Edmonton without any agreement that the Defendants pay for her lawyer’s travel or other costs and confirmed this agreement 10 days prior to her examination. It was only after her counsel requested that examinations for discovery be rescheduled, also 10 days prior to the examination and almost 6 months after agreeing to this arrangement, that the Plaintiff first requested that any costs with respect to her attendance or her counsel’s be paid by the Defendants.

[29] Moreover, the Plaintiff is seeking an indulgence and an accommodation from the court and the Defendants in circumstances where there is no medical condition or other impediment to her travel. Plaintiff’s counsel submits that the Plaintiff should not be required to pay for any costs of her attendance because she may not recover all of these costs even if she is successful in this litigation. In my view, this is not a valid basis to require the Defendants to pay all of the costs associated with accommodating the Plaintiff’s current residence. As with any litigation, the parties can pay their respective shares of these costs and seek recovery from the trial judge in their costs submissions after the ultimate disposition of this action. Further it does not appear that the costs are material in all of the circumstances, and will be less if the parties share in the expenses. In my view, requiring the Plaintiff to share in these costs is not an unreasonable disbursement to expect a Plaintiff to incur in these circumstances. It is also consistent with Midland, where the plaintiff being accommodated paid some of the defendants’ costs.

[30] Therefore, having considered all of the factors and circumstances set out above, I conclude that what is just, convenient, cost-efficient and proportionate for the parties and furthers the principles of Rule 1.04 is that Gibbons choose 1 of the following 2 options:

i.) Option #1 - the Plaintiff’s examination for discovery shall proceed by video conference on or before February 28, 2018 with the Plaintiff in Saskatoon and counsel for the Plaintiff and Defendants at a video conferencing facility in Toronto, the costs of video conferencing to be shared by the Plaintiff (50%) and the Defendants (50%) with the Defendants to pay the costs for the court reporter and facilities in Saskatoon (the Defendants’ respective shares to be agreed upon by the Defendants); or

ii.) Option #2 – the Plaintiff shall attend for an examination for discovery in person in Toronto on or before February 28, 2018 with the costs of the Plaintiff’s travel, meals and accommodations to be shared by the Plaintiff (50%) and the Defendants (50%) with the Defendants to pay the costs of the court reporter and facilities in Toronto (the Defendants respective shares to be agreed upon by the Defendants).

III. Disposition

[31] Order to go that Gibbons shall choose 1 of the following 2 options:

i.) the Plaintiff’s examination for discovery shall proceed by video conference on or before February 28, 2018 with the Plaintiff in Saskatoon and counsel for the Plaintiff and Defendants at a video conferencing facility in Toronto, the costs of video conferencing to be shared by the Plaintiff (50%) and the Defendants (50%) with the Defendants to pay the costs of the court reporter and reporting facilities; or

ii.) the Plaintiff shall attend at an examination for discovery in person in Toronto on or before February 28, 2018 with the costs of the Plaintiff’s travel, meals and accommodations to be shared by the Plaintiff (50%) and the Defendants (50%) with the Defendants to pay the costs of the court reporter and facilities.

[32] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 3 pages (excluding costs outlines and any case law) with me through the Masters Administration Office by October 31, 2017.

Released: August 23, 2017

Master M.P. McGraw