Sach v. Viola, 2017 ONSC 5202
CITATION: Sach v. Viola, 2017 ONSC 5202
COURT FILE NO.: CV-16-564154
MOTION HEARD: 20170608
REASONS RELEASED: 20170901
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
BERNADINE SACH in her capacity as Power of Attorney
for ALBERTINA ALEXANDRE
Plaintiff
- and-
DAMASIA VIOLA
Defendant
AND BETWEEN:
DAMASIA VIOLA
Plaintiff by Counterclaim
- and
BERNADINE SACH in her capacity as Power of Attorney
for ALBERTINA ALEXANDRE, and BERNADINE SACH personally
Defendants by Counterclaim
BEFORE: MASTER D. E. SHORT
COUNSEL: Marcus Boire and Tanya Walker, F (416) 362-2334
-for moving plaintiff and
Defendants by Counterclaim
Julian Heller, F (416) 364-0793
for defendant and
Plaintiff by Counterclaim
RELEASED: September 1, 2017
Reasons for Decision
I. Overview
[1] Family feuds are never pleasant. In this case, two sisters contest the question of who is entitled to attend a cross examination of their mother Albertina Alexandre with respect to an affidavit filed in opposition to a motion where one sister is seeking a Certificate of Pending Litigation on their mother’s home.
[2] This litigation is somewhat unusual in that it is the defendant Damasia Viola (“Viola”) named in the original Simplified Procedure, Statement of Claim that is seeking to obtain a CPL by way of a counterclaim, where she is also being sued over an allegation of misappropriation on some of her mother’s funds. Her sister, Bernadine Sach is presently a joint owner of the mother’s home.
[3] Originally a Caution was registered on title by Viola in December 2016, that Caution expired three days before a motion seeking the CPL was brought on notice before Master Pope, on February 24, 2017.
[4] On the return of the motion various procedural issues were dealt with. In her endorsement Master Pope indicated that she was satisfied that more time “is required for the plaintiffs to respond to this motion and to conduct cross exams.” She also indicated she was satisfied that there was “some evidence from the defendant that may support an order for a CPL."
[5] In particular her written endorsement observes that the plaintiffs had not produced any evidence that they were undertaking “not to dispose or otherwise deal with the property now or after the caution expires”. She also noted that the plaintiffs had listed the property for sale recently and “although counsel advised that the plaintiffs had terminated the listing agreement, there is no evidence to that effect.”
[6] Master Pope went on to issue an “interim CPL” and gave these additional observations:
“I am not satisfied that an interim CPL would affect the plaintiffs anymore than the Caution has. Further, given that the Caution will likely expire before the motion can be heard, and the likelihood that the Caution cannot or will not be renewed again by the Land Registrar, I am granting an interim CPL to the defendant without prejudice to the plaintiffs arguing that the defendant is not entitled to a CPL. There will be no greater onus or burden on the plaintiffs in arguing against the CPL due to the granting of the interim CPL.”
[7] This direction appears to me to be an appropriately proportional, interim preservation of the property in dispute, in keeping with the spirit of Rule 45.01 and the guidance of Rule 1.04.
[8] Master Pope adjourned the motion which next came before me for further directions relating to the pending application.
[9] At that time, following discussion with counsel. I endorsed the motion record to indicate that the parties had established a timetable, and reached an agreement with respect to the qualifications of an appropriate interpreter for the cross examination of the plaintiff mother, Albertina. I further indicated that the problems arose in regard to the examinations, I would convene a telephone case conference to provide any necessary directions.
[10] As well I indicated , and ordered that the interim CPL established by Master Pope was to be continued until the final disposition of the main motion for the CPL pursuant to Section 103 of the CJA, relying upon her endorsement and the co-operative attitude of counsel in that regard.
[11] The one matter upon which I reserved my decision, following the submissions of counsel, was the plaintiff’s motion issue for an order entitling Ms. Sach to attend the cross-examination of Albertina Alexandre on the affidavit sworn by Mrs. Alexandre. The determination of this motion requires consideration of the previous activities of the parties.
II. Background to Action
[12] The plaintiff Albertina Alexandre was born in March 1929. The letter of opinion obtained from a capacity assessor under the Ontario Substitute Decisions Act, 1992 (“SDA”) was conducted in Portuguese in December 2016. That report indicates that Ms. Alexandre explained that her husband died in 1971 and she was left with the responsibility for managing all of her finances.
[13] In part the report states:
“Ms. Alexandre confirmed that she had created a POA and will sometime in 2015, as she wanted to appoint Bernadine to be her POA for property and personal care. She retained the services of a Portuguese-speaking lawyer to have these documents drafted. Ms. Alexandre noted that she may have created a will/testament in 1975, but since she has been unable to find copies of these documents she could not confirm if this had been done. Ms. Alexandre demonstrated an understanding of the purpose of creating a POA and will and was able to explain how these documents would be used. She was also able to explain the role and obligations of a POA and she expressed confidence in her decision to appoint her daughter Bernadine, Ms, Alexandre denied being influenced or coerced in any way by anyone including her daughter Bernadine. She explained that she initiated the process to draft a new POA and will on her own. She acknowledged that she always treated both children equally and had both daughters as joint account holders on all of her accounts. However, Ms. Alexandre also explained that over the years Bernadine has been her primary caregiver and support person, and for that reason she now believes that
Bernadine would be the most suitable person to make decisions related to her finances and personal care.”
[14] It is further noted that Alexandre “acknowledged legal proceedings that are currently before the court and she admitted that this had been very stressful to her.”
[15] Paragraph 29 of her affidavit filed on the motion reads:
“On or about November 4, 2015, I had my lawyer put Bernadine on title to my property is an owner joint tenancy, without any payment. I did this as an estate planning measure to make it easier for Bernadine to deal with my Property, when I die, or if I become incapable.”
[16] Her original affidavit sworn March 24, 2017 , in the form found at tab E of the initial motion record also includes the following clearly stated and relevant assertions:
“36. I deny that Ms. Viola, her husband, and son have a constructive trust or resulting trust in my property as alleged in paragraph 80 of the Viola affidavit.
- Any claims to my estate or Property made by Ms. Viola are completely unfounded and represent an attack on my tachometer right to deal with my property, as I see fit.”
[17] Her affidavit has a jurat in a form whereby the commissioner certifies that the affidavit was “interpreted to the deponent in my presence by [G.A.].who took an oath before me to interpret and translate same correctly to the plaintiff in the Portuguese language.”
[18] The extent that more than a few octogenarians would understand the concepts addressed in English, let alone a foreign language, leaves some questions in my mind.
[19] Conversely sworn evidence filed by Viola’s counsel outlines the observations of “Albertina’s long-time friend” that Albertina’s mental capacity was diminished and that she acknowledged to her that Bernadine was influencing and intimidating Albertina.
[20] It is also asserted that apparently Viola was Albertina’s primary caregiver for over 40 years since the death of her husband in 1971. She held Albertina’s Powers of Attorney, since approximately 2001. It was not until Bernadine began living with Albertina “about 2015 that Albertina changed title to her home to joint ownership with Bernadine”.
[21] One of the affidavits filed in opposition asserted:
“There is a high potential that if Bernadine is allowed at Albertina’s cross-examination, Bernadine will intimidate Albertina and influence Albertina’s examination. Damasia’s action relates to allegations of undue influence and abuse against Bernadine. To have Bernadine in the room with Albertina raises a real risk of intimidation of Albertina by Bernadine and tainting Albertina’s evidence.”
III. Simplified Rules procedural requirement
[22] This matter started as a claim for $61,000 by way of a simplified rules action. In response, the defendant notes that the family home was listed for sale for $1.7 million at about the time the pleading was issued and seeks substantial punitive damages, etc.
[23] Paragraph 101 of the Defence and Counterclaim reads “the plaintiff by counterclaim… proposes that the counterclaim be tried in Toronto with the Plaintiffs claim herein under the ordinary procedure.”
[24] For my present purposes I am deeming the parties to have acknowledged the increased size by virtue of rule 76.02 (5). That rule provides that a matter commenced under this rule continues to proceed under this rule, unless:
(c) the defendant makes a counterclaim or cross-claim, or third-party claim that does not comply with subrule (1) and states in the defendant’s pleading that the counterclaim cross-claim or third party claim, is to be is to proceed under the ordinary procedure.”
[25] It would seem that eventually the plaintiff will need to deliver, after all the pleadings are delivered a notice in form 76A, stating that the action and any related proceedings “are continued” as an ordinary action. The significance of this change is that I have encountered a number of cases where counsel seem to generally overlook the mandate of Rule 76.04, which prevents cross examinations in normal Simplified Procedure cases.
[26] Thus cross examinations on the affidavits filed are permissible in this case, notwithstanding that the action was commenced as a simplified procedure matter.
IV. Proper Plaintiff
[27] Put simply, each sister alleges that the other is in some way has acted improperly or is unduly influencing their elderly mother. Based on the evidence before me, it would appear that the plaintiff Albertina Alexandre is capable. I therefore am somewhat perplexed as to the style of cause I am not satisfied that it is an appropriate
[28] I note that the sole plaintiff described in the style of cause reads “Bernadine Sach in her capacity as Power of Attorney for Albertina Alexandre”. I am not convinced that this is a proper manner of commencing an action. Counsel for the plaintiff has filed affidavit evidence relating to an assessment made by a person with substituted decision maker expertise. My reading of the evidence would seem to indicate that the plaintiffs are asserting that when the conveyance was made to her daughter Bernadine Sach, Albertina was competent to make that transfer.
[29] Thus it seems that there is a somewhat unclear basis for requiring the action to be brought, not by Bernadine, but by the holder of a Power of Attorney granted by her. I have real doubts as to whether it is possible in the circumstances of this case for the holder of a power of attorney over property to do so.
[30] For example, rule 57.06 provides the court may order successful party to pay the costs of the litigation guardian of a party under disability who is a defendant or respondent, but may further ordered that the successful party paid those costs only to the extent that the successful party is able to recover them from the parties liable for the successful party’s costs. A Litigation guardian, who has been ordered to pay costs is entitled to recover them from the person under disability for whom he or she has acted, unless the court orders otherwise.
[31] The practice note found that at page 1670, of the 2016 edition of Ontario Superior Court Practice (Archibald et al) observes that:
A litigation guardian, who has been ordered removed due to his or her conflict of interest does not personally bear the costs of unsuccessfully defending that motion. Though the represented party did not instruct for the motion to be defended, the overriding concern for the system of litigation guardianship itself. So, the costs are ordered against the unsuccessful party.
[32] Thus, to my mind the issue here is that if there is no properly appointed Litigation guardian at all, the Rules do not contemplate what is to happen in a case where the holder of a power of attorney from an individual who otherwise is apparently competent purports to bring the action in that capacity.
[33] For example in Berman (Litigation guardian of) v. Schwartz, 2013 ONSC 555; 225 A.C.W.S. (3d) 344; 46 C.P.C. (7th) 208; 2013 CarswellOnt 623, Justice E.M. Morgan dealt with costs following the release of his judgment on a motion brought to have a That Guardian removed. His reasons observe:
2 The Defendants Samuel Schwartz, Samuel Schwartz in his capacity as former Estate Trustee of the Estate of Joseph Berman, Davis LLP, Goodman and Carr LLP ("Schwartz et al.") were successful on the motion. I held that Evie Garnet must be replaced as litigation guardian for Helen Berman and that Solmon Rothbart Goodman LLP must be replaced as counsel for Ms. Berman and her litigation guardian.
8 Schwartz et al. therefore deserve an award of costs.
9 The one thing that gives me pause is that the Plaintiff Helen Berman was the unsuccessful party in the motion. In the usual course, she would have to bear the costs. Ms. Berman, however, did not instruct counsel to defend the motion brought by the Defendants. Her litigation guardian, …, who I have ordered removed due to her conflict of interest, did that.
11 As was said in Re Koch (1997), 1997 CanLII 12265 (ON SC), 35 O.R. (3d) 71 (Gen Div), there are two competing interests at stake in a controversy like this. On one hand, persons who assume guardianship duties ought not be unduly deterred from carrying out their duties on behalf of the person under disability. On the other hand, individuals who assume the guardian's role must be held accountable for the manner in which they fulfill that role.
12 This thinking was applied to the case of public trusties by the British Columbia Court of Appeal in White v Rutter (1998), 1988 CanLII 2899 (BC CA), 32 C.P.C. (2d) 195, at 201, where the court noted that, "it cannot be in the public interest to deter a statutory agent from carrying out his duties by exposing him to an order for costs." The Ontario courts have generally followed this policy reasoning for private guardians as well as public trustees where the action or motion, though unsuccessful, was neither frivolous nor pursued in bad faith. Socha (Committee of) v Millar, [1995] O.J. No. 371 (Gen Div); aff'd [1998] O.J. No. 2006, 1998 CarswellOnt 1989 (Ont. C.A.).
13 Mr. Slodovnick urges me to pay heed to the policy of protecting the functioning of the guardianship system, submitting that if a litigation guardian were readily subject to costs no one would ever take on that role. In this, he reflects the position articulated by Coady J. of the British Columbia Supreme Court in Lopaschuk v Henderson (1951), 1951 CanLII 467 (BC SC), 3 WWR (NS) 327, at 328, who commented that to hold a guardian to the risk of bearing costs personally "might well be to discourage defences on behalf of infants where legitimate defences might well be advanced and to thus perhaps sacrifice infants' interests."
[34] Given those problems with respect to a properly nominated litigation guardian how is the court to deal with a purported status not contemplated by the rules for this plaintiff?
[35] I also turn to rule 7.04 which deals with the manner in which representation of parties under a disability is to be conducted. The rule sets out the procedures by which a litigation guardian can bring, defend and/or settle legal proceeding on behalf of a party under disability.
[36] My reading of the case law makes it clear that a Litigation guardian should not be appointed where the party is healthy and stable mentally, although he or she may lack education, training, cultural, and life experiences.
[37] There appears to be limited case law which has specifically considered those issues addressed under the provisions of rule 1.03, which, for the purposes of this case defines “disability” in respect of a person who is “(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a Guardian or not.” In that regard, it is to be noted that the only evidence before me was that the mother was competent.
[38] It is appropriate. However, for me to refer to the decision of Justice Murphy in Limbani (Litigation guardian of) v. Limbani, 29 C.P.C. (4th) 33; 87 A.C.W.S. (3d) 453.There, in 1999, Justice Murphy dealt with an application by the defendants, the Limbanis, for an order to remove the plaintiff's litigation guardian. The headnote reads in part:
The Limbanis were the son and daughter-in-law of the plaintiff. The plaintiff relied on her solicitor's affidavit and her doctor's report in support of her need for a litigation guardian. The doctor claimed that the plaintiff would barely understand any legal explanations, that she was a simple and uneducated woman whose decisions had always been made by men in her household, and that she was mentally healthy. The solicitor claimed that it was customary in the plaintiff's culture for the eldest son to assume the responsibilities of the father, that the plaintiff was absolutely dependent upon her family to handle every aspect of her life, and that she was unable to make the necessary decisions required of a litigant.
[39] In allowing the application His Honour held that the plaintiff was not a disabled person within the meaning of the Rules of Practice, which incorporated sections of the Substitute Decisions Act. The plaintiff was mentally healthy. The meaning of disability was not to be expanded to include lack of experience, education, or cultural differences. The evidence before the court was, in part, that:
Pushpa Limbani never learned to speak English and communicates mainly in Gujarati and to some degree in Swahili. I am informed by Pushpa Limbani and do believe that:
a. she has never learned to drive;
b. she has never worked outside the home in her life;
c. she has only a primary school education from East Africa, and her life experience consists of remaining home and raising children in a large family;
d . she has never really integrated into the Canadian culture, even within much of the Indian community;
e. she is a frail woman on a widow's pension, and is absolutely dependent upon her family to handle every aspect of her daily life including transportation, visiting and instructing a doctor or dentist, paying all her bills for her, arranging all her finances by attending with her at banks or the offices of lawyers;
f. her family appears to attend to all her needs and makes all the decisions for her after discussing matters with her and in the past she has trusted them implicitly;
g. that the situation giving rise to this litigation arose as the direct result of her dependency on her family members and her inability to manage her own affairs;
h. she does not understand the Canadian legal system and is unable to participate meaningfully in a conversation with persons in authority or her lawyer.
[40] Her family doctor for the deposed that he was satisfied that even if the action were structured so that all instructions were relayed through an interpreter he was satisfied that Pushpa could not make the necessary decisions and perform the kind of analysis of issues that are required of a litigant and this may compromise her ability to protect her interests in any resulting litigation.
[41] Nevertheless, even in those circumstances, Justice Murphy determined to remove the Litigation guardian and concluded:
“10 I am satisfied that the test for the appointment of a Litigation guardian is found in Rule 7.03(1) and Rule 1.03, which incorporates by reference sections 6 and 45 of the Substitute Decisions Act. In my judgment the Plaintiff has not met that test. Dr. Khan's letter discloses that Pushpa is quite healthy mentally, she is stable mentally.
11 In my judgment Pushpa is not a disabled person within the meaning of the rules. …”
[42] Applying this guidance, based upon the evidence before me, I similarly see no reason to find that Albertina is a disabled person within the meaning of the rules. Thus, I see no basis upon which to alter the style of cause to reflect a litigation guardianship.
[43] However, that does not deal directly with the counterclaim for a certificate of pending litigation against Albertina which I find is more in the nature of an understandable misnomer.
V. May a Co-Defendant Attend the Cross Examination of a Co-Party?
[44] One of the leading cases in this area is the 2004 decision of the Court of Appeal in Liu Estate v. Chau, 2004 CanLII 8234 (ON CA), 69 O.R. (3d) 756; 182 O.A.C. 366; 236 D.L.R. (4th) 711] but I note this was a case dealing with the exclusion of a witness during a trial rather that at discovery or a cross-examination of a co-party.
[45] Rule 52.06 provides addresses the rights of parties to attend throughout a trial:
52.06 (1) The trial judge may, at the request of any party, order that a witness be excluded from the courtroom until called to give evidence, subject to subrule (2).
(2) An order under subrule (1) may not be made in respect of a party to the action or a witness whose presence is essential to instruct the lawyer for the party calling the witness, but the trial judge may require any such party or witness to give evidence before any other witnesses are called to give evidence on behalf of that party.
[46] Counsel for Bernadine asserts that a party to an action has an inherent right to attend discoveries (or cross-examinations) of another party unless cause can be shown to restrict such attendance and relies upon the decision in Liu Estate v. Chau, (supra).There Justice Rosenberg stated:
23 ….The concern, one can assume, is the possibility that Ms. Chau would tailor her evidence so that it would be consistent with that of her husband. That was not a sufficient basis for dispensing with the rule. …. Excluding a party because of the possibility she will tailor her evidence does not give proper weight to the true basis for the party's right to be present. As Borins D.C.J. said in Baywood Paper Products Ltd. v. Paymaster Cheque-Writers (Canada) Ltd. (1986), 1986 CanLII 2699 (ON SC), 57 O.R. (2d) 229 at 239, “[t]he presence of a party at the examination for discovery, like the presence of a party at trial, is consistent with due process and the right to protect his or her interests by observing the conduct of the examination.” •
24 Given the fundamental nature of the right to be present, the circumstances in which a trial judge would be justified in ordering that a party not be present during a part of the trial would have to be exceptional. For example, a real probability of intimidation (Changoo [1999] O.J. No. 865 at para. 12) or the circumstances referred to by O'Halloran J.A. in the Sissons case [(1951) 1951 CanLII 480 (BC CA), 1 W.W.R. 507]at p. 509:
It seems to me, with respect, we must start with the principle that every person has an inherent right to be present at a trial or any other proceedings to which he is a party. Such a right, however, must not conflict with the fair and proper judicial conduct of the action or proceedings. Inherent rights are invariably accompanied by concomitant duties. For example if a party should act in a manner to disturb the judicial conduct of the trial or proceedings, or persist in failure to conform to accepted rules and procedure, it would not be surprising if the court or presiding judicial official should adjourn the hearing or, if he found it necessary, order that the interrupting party be removed. [emphasis in original]
[47] In support of their assertion that the alleged prejudice to the discovery process must be proved on a balance of probabilities based on an objective standard counsel for Bernadine relies upon Redekop v. Redekop, 1998 CanLII 14694 (ON SC), 1998 CarswellOnt 3372; 1998 CarswellOnt 3372; [1998] O.J. No. 2435: [1998] O.J. No. 3435,; 28 C.P.C. (4th) 109; and Alexandridis v, Richard (2007) 2007 CanLII 18016 (ON SC), O.J. 1989.to assert in their factum:
Mere allegations of the possibility of tailoring of evidence, or of intimidation, are not enough.
Ms. Sach is a named Defendant in this action, and is also acting in her capacity as power of attorney for her mother, Ms. Alexandre .therefore, she is presumptively entitled to attend at the cross-examinations of Ms. Alexandre.
[48] I appreciate that in 1998 Quinn J. addressed similar issues in Redekop v. Redekop (supra) which involved a motion by the applicant for an order compelling the respondent to attend for his examination for discovery in circumstances where the applicant desires to be present. At issue therefore was the entitlement of a party to be present during the examination for discovery of the opposite party. His Honour set out this factual situation:
12 It is contended before me that the presence of the applicant during the examination for discovery of the respondent will be intimidating to the respondent. Intimidation by the applicant certainly would serve to bar her from the discovery. However, the existence
of intimidation, or the likelihood of it occurring, in my view, must be established by the respondent in accordance with the civil burden of proof. In that regard I respectfully disagree with the statement of Smith J.A. in Sissons v. Olson [infra, para 55] that the onus upon a party attempting to exclude an opposite party is not "a heavy one" and that "the onus is lighter on discovery than at trial." I see no reason to differentiate between discovery and trial; in most respects the former is every bit as important as the latter.
[49] Dealing with a party opposite’s ability to be present for an examination of the opponent he held:
13 It is not enough for the respondent to say that he is, or will be, intimidated if the applicant is present during his discovery; there must be some evidence from which this court can objectively arrive at that conclusion. I find that evidence to be lacking. The letter of April 16, 1998 does not support a finding of intimidation. Similarly, even if a letter to a third party can serve as a reasonable basis for a finding of intimidation, I do not see how the letter of June 8, 1998 can be viewed in that fashion. It is not enough that the respondent feels or fears intimidation. That is not the test. There must be an objective basis for that feeling or fear; otherwise, the sensibilities of the respondent, no matter how heightened or unfounded, would operate to defeat the substantive right of the applicant to be present during the examination for discovery of the respondent. (my emphasis)
[50] While Justice Quinn disagreed with Smith J.A.; on this rare occasion, I in turn respectfully disagree with his Honour’s approach (at least in cases where the desire is to attend the examination of a party identical in interest.).
[51] My esteemed predecessor Master Cork was “the” family law Master of his time and his experience in the field was unparalleled.
[52] I believe that different considerations apply in a matrimonial proceeding and that this is in very much in the nature of such a proceeding. In Piper v. Piper (1988), 1988 CanLII 4665 (ON SC), 65 O.R. (2d) 196 Master Cork stated:
In family law we often start with parties who have lived together over a considerable number of years, producing and raising children, and seeing them depart as adults, and being subject to the incredible complexity of vicissitudes that are attendant in any marriage, whether successful or otherwise. To merely survive such a necessarily close partnership means that those partners are so finely tuned each to the other that I would anticipate a great number need not verbally communicate with the other in many respects, and that their very presence in or under a given set of circumstances, can evoke in the other partner an appreciation of the effect of those circumstances on the first partner, without any explanation being necessary in either direction between the partners.... I am perfectly satisfied that... the mere presence of a long-standing marriage partner in an examination room could quite easily amount to a threat or intimidation on the other spouse, when the experiences of both spouses have been that the now attending spouse has been dominant in the relationship over the other subservient spouse then being examined. (my emphasis)
[53] Similar sentiments were expressed by Murphy J. in Lautenschlager v. Lautenschlager. (1997) 1997 CanLII 24496 (ON SC), 29 R.F.L.(4th) 316.
[54] As well I prefer the approach of my colleague Master Graham where witnesses were excluded for portions of the examinations of parties having a similar interest in Ambrose v. Anderson, 2011 ONSC 4620, 206 A.C.W.S. (3d) 489; 31 C.P.C. (7th) 294; 2011 CarswellOnt 7742.There he that the defendants would not be able to test the evidence of the plaintiffs before trial if the plaintiffs were able to hear each other’s discovery evidence before they were examined individually. “There would be minimal actual prejudice to the plaintiffs arising from their exclusion from each other’s examinations.
[55] In particular Master Graham observed:
4 The parties disagree as to the applicable law on the issue of when a party may be excluded from examinations for discovery. As I informed counsel at the case conference at which the motion was scheduled, my view of the law is set out in my decision in Visram v. Chandarana, 2010 ONSC 4080, [2010] O.J. No. 3145, in which I reviewed the two streams of authority on the issue and followed the approach used by Sidney Smith J.A. in Sissons v. Olson (1951), 1951 CanLII 480 (BC CA), 1 W.W.R. (N.S.) 507 (B.C.C.A.) which was applied in Karamanokian v. Assad, [1992] O.J. No. 2284 (Gen. Div.) Based on my review of these authorities, I stated the test as follows (paraphrasing paragraph [10] of Visram):
This court, in deciding whether or not to exclude a party from a co-party's examination, must balance the prima facie right of those parties to be present at all stages of their action against the opposing parties' right to examinations for discovery that are uncompromised by possible collusion between parties similar or identical in interest that may lead to "tailoring" or "parroting" of evidence.
[56] I too am of the view that any notional injustice to the parties excluded arising out of their exclusion can be redressed following the completion of their cross examinations by their review of each other’s transcripts. However, any prejudice to the opposing parties arising from any tailoring of evidence by the parties sought to be excluded can never be remedied.
[57] Similarly, in Solutions with Impact Inc. v. Domino's Pizza of Canada Ltd., 2010 ONSC 630; 86 C.P.C. (6th) 95;184 A.C.W.S. (3d) 639; 2010 CarswellOnt 560 I previously dealt with alleviating any possible prejudice to the parties:
[62] The plaintiffs [who were sought to be excluded from each others' examinations] will be able to read the examination of each other, prior to trial and will certainly be in a position to discuss any of the matters relating to the case with each other prior to their examinations for discovery. The defendant on the other hand, will lose the ability to obtain the independent recollection of each of the plaintiffs on the key issues of fact which are alive in this case.
[58] Justice F.R. Caputo in Lipischak v. DeWolf; [2008] O.J. No. 4918 carefully canvases in detail many of the cases reviewed in these reasons and several others. I found his references to two decisions of Masters of this Court helpful.
[59] The first was a decision of Master Garfield in Condona v. Ospreay (1994), 1994 CanLII 10567 (ON SC), 22 O.R. (3d) 662 where he excluded co-defendants who had common and identical defences from the examination for discovery of the other. He held because of their common interests that "may conceivably tailor their evidence." Master Garfield adopted the test in Basu v. Bettschen (1975), 1975 CanLII 821 (SK QB), 55 D.L.R. (3d) 755 (Sask. Q.B.) where the Saskatchewan Queens Bench held:
"Where co-parties have interests in common it is important in the interests of justice that they be excluded when fellow parties are testifying on an examination. If it were otherwise, they would be in the advantageous position of knowing what another has said at the time that they are examined.
I can see that considerable harm might be suffered by the plaintiff if the parties were allowed to be present when each was examined. On the other hand, there appears to be little if any, prejudice to the defendant if they are excluded."
[60] The second particularly helpful case referred to by Caputo, J. was the decision at first instance of Master Dash, in Lesniowski v. H.B. Group Insurance Management Ltd., 2002 CarswellOnt 2713, [2002] O.T.C. 607, 115 A.C.W.S. (3d) 956, 23 C.P.C. (5th) 88 While his decision was reversed on appeal by Justice Echlin. Nevertheless I find the passages quoted below and relied upon by Justice Caputo in his reasons in Lipischak instructive:
“[41] Interestingly, each case cited where exclusion was ordered involved exclusion from examinations of a co-party, rather than a party adverse in interest. In my view, the risk of tailoring is greater when a party observes the evidence of his co-party at discovery before testifying himself, as there maybe a subconscious (or conscious) desire to achieve consistency. As a result, as stated in Sissons and the cases that followed, the onus of showing cause why a party should be excluded from the examination of a co-party is not a heavy one, and is even lighter at discovery than at trial, and the benefit of the doubt should be in favour of the party seeking exclusion. This is particularly appropriate where the credibility of the witnesses may be an issue and the parties to be examined have a commonality of interest ...
[43] ... There is no specific prejudice to the defendants alleged if they are excluded from each other's examination, other than the loss of the right as a party to be present during one part of the action. The possibility of prejudice is remote. On the other hand there could be considerable prejudice or at least an unfair disadvantage to the plaintiff if she is denied the right to at least explore potential inconsistencies between the defendants free from the taint of one defendant having been privy to the testimony of the other.
[61] I agree with the less stringent test for exclusion. Unless there is a possibility of injustice from an exclusion, the injustice from a refusal to exclude may be substantial.
VI. Guidance from the Divisional Court
[62] I am emboldened in this assessment and guided with respect to any possible further orders by I believe a recent Divisional Court decision by Justice Spies affirms my approach. In Lazar v. TD General Insurance Co., 2017 ONSC 1242; 2017 CarswellOnt 4317; 278 A.C.W.S. (3d) 165; 99 C.P.C. (7th) 252 the Court addressed the question “Do the ends of justice require an exclusion order?”
52 In light of the error in law and the misapprehension of the evidence by the Motion Judge, this Court may substitute its decision for that of the Motion Judge. I turn then to the question of whether or not the Appellant has satisfied its onus of demonstrating that the ends of justice require an exclusion order.
53 As I have said, the Liu Estate decision explains that a party has the right to be present for all aspects of the action in order to protect his or her interests by observing the conduct of the examination. Given this, it is not necessary to assert specific prejudice in order to be allowed to be present for a co-party's examination for discovery.
54 However, in this case, the Respondents do submit that they will suffer specific prejudice if an exclusion order is made. No evidence of specific prejudice was asserted in an affidavit filed on behalf of the Respondents. Mr. Yellin submitted that the Respondents have the right to be pre-sent in order to gauge their own counsel and opposing counsel, instruct counsel on the facts and evaluate the reliability and credibility of the other Respondent when giving evidence (an important factor for the purpose of settlement discussions). In my view, these concerns are overstated. The rules provide that a party may supplement or correct answers given on discovery and each co-party will be able to gauge counsel on their own discovery. As for the reliability and credibility of the other Respondent, counsel is in the best position to give impartial advice on that issue.
55 In my view, any prejudice to the Respondents is addressed by the fact that they are able to discuss any of the matters relating to the case in advance of the examinations for discovery and instruct counsel accordingly. Furthermore, they will be able to read the examination for discovery of the other party prior to trial and of course be present for the evidence of the other party at trial.
56 In my view in this case, all of the factors identified in Bresner [infra] favour an exclusion of the Respondents from each other's examinations:
a) The Respondents are spouses and have identical interests in the recovery of damages;
b) The Respondents' respective rights of recovery under the insurance policy are identical;
c) The Respondents are represented by the same counsel;
d) Examinations for discovery will cover identical grounds for both Respondents regarding the contents in their home damaged by fire; and
e) The credibility and reliability of the Respondents' evidence will be the central issue at trial and the primary factor which will affect recovery under the policy.
57 In light of all of these factors, there is a risk that the evidence of the co-parties will be tailored if an exclusion order is not made. I emphasize that I do not suggest that they would do so intentionally. Given the purposes of an examination for discovery and in light of the factors I have referred to in this case, I find that the right of the co-parties to participate in all aspects of the action, and in particular, each other's examinations for discovery, must yield to the right of the Appellant to use the examination for discovery to its fullest potential and obtain the evidence of the Respondents without any possible collusion.
58 For these reasons, the Appellant has satisfied its onus of establishing that an order for exclusion of the Respondents should be made in the interests of justice.
[63] Also of assistance in this case are Justice Spies observations on the duty of counsel in such circumstances:
59 During the course of oral submissions, the Appellant expanded the relief sought to include other directions to prevent the exclusion order being undermined. Master Roger stated in Besner [v. Ontario, 210 A.C.W.S. (3d) 334; 31 C.P.C. (7th) 370; 2011 CarswellOnt 14483] at para. 14:
A corollary of granting an exclusion order is the impact it could have on the lawyer-client relationship. Invariably, parties seeking such an exclusion order seek an order that the lawyer not be allowed to tell his/her clients (who are co-parties) what the other co-parties indicated at their examination for discovery. This relief is typically granted with the exclusion order as, if an exclusion order is warranted to protect the interests of justice, this is required for the exclusion order to be effective: see for example Lipischak v. DeWolf, [2008] O.J. No. 4918 (S.C.).
60 The Notice of Appeal does not ask for "such other order as this Court deems just". In any event, in my view this request should have been expressly set out in the Notice of Motion as these types of orders could impede the solicitor client relationship. I understand that the plan in this case is for the discoveries of the Respondents to proceed one after the other. There will be no time for a transcript and examining counsel will be able to ask whichever Respondent whose discovery proceeds second if there has been any discussion about the first discovery with the co-party. Counsel for the Respondents is an officer of the court and can be presumed to act in accordance with the terms and the spirit of this order.
61 For these reasons, the request for additional relief is denied.
[64] Similarly in this case there was no request made for “other relief”.
VII. Conclusion
[65] Ultimately, what I am addressing is the likelihood that there are going to be large numbers of factual issues, which have nothing to do with credibility, where the attendance of one of the parties at the examination of the other will permit questions in the nature of “do you disagree in any way with the evidence that the other witness gave with regard to issue A?”, will expedite the process both at discovery, and potentially at trial. That possible advantage will be lost by separate examination. In my view that element ought not to be determinative.
[66] Weighing the proportionality of the impact of the two parties it seems to me that on the facts of this case the fairest result is for the exclusion of the co-plaintiff daughter from the first of the two cross examinations. In the particular fact situation of this case I see no reason why the first party discovered ought not to be entitled to observe the discovery of her co party daughter.
[67] Such attendance would be on the clear understanding that they will in no way seek to communicate with the each other either prior to or during the course of the cross examinations.
[68] Thus, in light of all the foregoing cases and this analysis, it is my conclusion that an order should go permitting the defendant to cross examine first, examining each of the plaintiffs separately, with one examination following the other. It may be unnecessary to make a specific instruction for these examinations, but to be clear I am requiring the plaintiffs and their counsel not to disclose evidence given by the mother to her daughter prior to the conclusion of both their examinations.
VIII. Disposition
[69] The house transfer gave rise to a concern and the need to resolve the questions of capacity. Unlike many similar disputes. We have the advantage of having the creator of the trust available, alive, and according to the materials filed on her behalf, competent to resolve what her intentions were. My view for that process to be most effective is important that neither daughter be in attendance at the cross examination.
[70] I am therefore directing that counsel, an agreed interpreter and Alexandre be the only persons present during her examination.
[71] To the extent that it may ultimately prove to be of some assistance. I am content that if either party wishes an audio recording of the examination should be preserved to permit any concerns regarding the cross examinations.
[72] My view is that this is a case with costs of the motion should be reserved to the master or judge ultimately hearing the contested application for a CPL in this case.
[73] I am third master to deal with this dispute. As noted at the outset of these reasons, I indicated to counsel during the motion that if problems arose in regard to the examinations, I would convene a telephone case conference to provide any necessary directions.I continue to be willing to do that.
[74] However, in order to permit the matter to be dealt with expeditiously as possible. I am not seizing myself of this matter so that the first available long motion date, convenient to the parties, can be utilized.
[75] I thank counsel for their detailed and helpful submissions.
R. 192/DS __________________
Master D.E. Short