CITATION: GATIEN v. LALONDE ET AL, 2017 ONSC 854

COURT FILE NO.: 10-48223

CROSS-MOTION HEARD: December 06, 2016

DATE: 2017/02/03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GATIEN v. LALONDE et al

BEFORE: Master Fortier

COUNSEL: Eric Appotive, for the Plaintiff

Joel Dubois, for the Defendants

HEARD: December 06, 2016

REASONS FOR DECISION

Introduction

[1] The plaintiffs bring this motion pursuant to Rule 39.03(1) and 39.03(2) to examine the defendant, Stephane J. Lalonde, as a witness before the hearing of the defendants’ pending motion for costs.

Background

[1] On May 31, 2016, the Court granted leave to the plaintiff to discontinue this action against the defendants without prejudice to the defendants’ right to seek costs.

[2] As a result of the discontinuance, the defendants Lalonde, Lacasse and Le Journal des Mousquetaires The Muskateers Journal (“the Journal”) brought a motion for costs pursuant to Rule 23.05 of the Rules of Civil Procedure. They are seeking costs on a full indemnity basis.

[3] In support of their motion for costs, the moving parties are relying on the affidavit and supplementary affidavit of the defendant Lacasse sworn April 15, 2016 and April 27, 2016 respectively, together with attached exhibits as well as the affidavit of Anne Gillis. The defendant Lalonde has not provided an affidavit.

[4] The defendant Lalonde is a lawyer and represented the defendants Lacasse and the Journal from the commencement of the litigation in 2010 through to January 24, 2014.

[5] Mr. Lalonde rendered an account to the defendants Lacasse and the Journal on January 15, 2016 for $72,177.28, which included services rendered from April 2010 to January 24, 2014, some two years after he last provided services. The account was attached to Mr. Lacasse’s affidavit. In addition, Mr. Lacasse’s supplementary affidavit contains evidence from Mr. Lalonde.

[6] The plaintiff is seeking leave to examine the defendant Lalonde for the purposes of the defendants’ costs motion as he has questions concerning the quantum and timing of the January 15, 2016 account.

Position of the Parties

[7] It is the plaintiff’s position that Mr. Lalonde has evidence that is relevant and material to the costs motion, particularly as it relates to his January 2016 account which has been put before the court as an exhibit attached to Mr. Lacasse’s affidavit. This is particularly important as the defendants are seeking their costs on a full indemnity basis. According to the plaintiff, the purpose of the examination is not to elicit information protected by any genuine solicitor-client privilege but rather to question Mr. Lalonde concerning the timing and quantum of his account which is essential for Mr. Lalonde to answer directly. Mr. Lalonde is a defendant, he no longer represents Mr. Lacasse or the Journal and he is a moving party on the costs motion. In addition, Mr. Lacasse’s supplementary affidavit contains evidence from Mr. Lalonde and ought to have been sworn by Mr. Lalonde. The plaintiff argues that the reason that Mr. Lalonde did not swear an affidavit in support of the motion for costs was to shield him from cross-examination.

[8] The defendants argue that the plaintiff has failed to meet the evidentiary burden required for an order under Rule 39.03 (1) as he has lead no evidence which would properly explain why he wants to examine Mr. Lalonde. Furthermore, the defendants assert that the plaintiff’s request to examine Mr. Lalonde is based on speculation and allegations and is a fishing expedition. The defendants take the position that the examination of Mr. Lalonde would constitute an abuse of process because it is not necessary and the plaintiff has ulterior and improper motives for the request. The plaintiff could obtain the requested evidence by cross-examining Mr. Lacasse on his affidavit. Finally, there is a general policy against calling counsel for the opposing party to testify against his or her client unless the evidence is highly material and necessary.

Analysis and discussion

[9] Rule 39.03 of the Rules of Civil Procedure provides that a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

Rule 39.03(1) and (2) of the Rules of Civil Procedure reads as follows:

EVIDENCE BY EXAMINATION OF A WITNESS

39.03 (1) Before the hearing – Subject to subrule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination.

[10] The party seeking to examine a witness under rule 39.03 must show that the evidence sought to be adduced is relevant to the pending motion and the proposed witness is in a position to offer relevant evidence. It is not a high threshold. If the evidence sought is relevant, there is a prima facie right to examine under Rule 39.03 as long as it is not applied in a way that constitutes an abuse of process. The burden of proving that the examination is an abuse of process lies upon the party resisting the examination. (see Marton v. Wood Gundy Inc. 2013 ONSC 12346 at paras 9 and 10).

[11] The matter before the court is unusual in that one of the defendants in the action, Mr. Lalonde represented the other defendants in the action for a number of years. Upon a review of the materials, it is clear that Mr. Lacasse’s affidavit and supplementary affidavit together with attached exhibits establish that the defendant, Mr. Lalonde submitted an account to Mr. Lacasse and the Journal in January, 2016. In addition, Mr. Lacasse’s supplementary affidavit also contains evidence from Mr. Lalonde.

[12] I find that the evidence sought to be adduced by the plaintiff concerning the timing and quantum of Mr. Lalonde’s account to be relevant. In addition, I find that Mr. Lalonde is in the best position to offer the evidence. It would appear that the affidavit of Mr. Lacasse is sworn second hand. In these circumstances, it would be appropriate to have the person with knowledge examined under rule 39.02 and 39.03. As stated by Master MacLeod (as he then was) in Mapletoft v. Christopher J Service, 2008 6935 (ON SC) at para 11:

…”It would be improper to have an affidavit sworn second hand just to protect the person with important knowledge from cross examination on a contentious issue. ….On contentious matters the best evidence from the person with the most direct knowledge will be the strongest and most persuasive evidence.”

[13] As stated above, if the evidence sought is relevant, there is a prima facie right to examine under rule 39.03 and the burden shifts to the party resisting the examination to show that the examination is an abuse of process.

[14] Master Haberman in Coburn v. Barber, 2010 ONSC 3342 paras 94, 96 and 97 provides insight into the circumstances where an examination under rule 39.03 may constitute an abuse of process. Master Haberman found that the evidentiary record must contain more than just “speculation and allegations.” It must also be shown that the examination will be conducted on issues relevant to the pending litigation and that the proposed witness is in a position to provide it. It should not be a fishing expedition.

[15] I do not find that the defendants have met the burden of showing that the examination of Mr. Lalonde is an abuse of process. There is no evidence that the request to examine Mr. Lalonde is based on speculation and allegations, is a fishing expedition or that there are ulterior motives. Finally, this is not a situation where counsel for the opposing party is asked to testify against his or her client. Mr. Lalonde is a party to the proceedings, he no longer represents Mr. Lacasse or the Journal and he is a moving party on the costs motion.

Conclusion

[16] For the reasons outlined above, the plaintiff’s motion is granted. The plaintiff is granted leave pursuant to Rule 39.03 to examine the defendant, Stephane Lalonde as a witness before the hearing of the defendant’s pending motion for costs.

[17] If the parties cannot agree about the matter of costs, they may make submission in writing beginning with the plaintiff within 15 days of the release these Reasons for Decision followed by the defendants’ submissions within a further 15 days. Written submissions are to be no more than 3 pages in length each.

Master Marie Fortier

DATE: February 3, 2017