Kathleen Herzuk and Cory Rose v. Mark Kleiman
COURT FILE NO.: CV-16-557771
MOTION HEARD: 20180403
REASONS RELEASED: 20180405
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
KATHLEEN HERZUK, CORY ROSE Plaintiffs
- and-
MARK KLEIMAN Defendant
BEFORE: MASTER M.P. McGRAW
COUNSEL: A. Monkhouse and B. Faderin E-mail: andrew@monkhouselaw.com -for the Plaintiffs
S. Wolpert E-mail: stephen@whittenlublin.com -for the Defendant
REASONS RELEASED: April 5, 2018
Reasons For Endorsement
I. Background
Introduction
[1] There are 4 motions before me which arise in the context of the Plaintiffs’ pending summary judgment motion (the “Summary Judgment Motion”):
i.) the Plaintiffs’ motion for leave to file additional documents on the Summary Judgment Motion (the “Document Motion”);
ii.) the Plaintiffs’ motion for leave to file the Supplementary Affidavit of Kathleen Herzuk sworn January 2, 2018 (the “Supplementary Affidavit”) on the Summary Judgment Motion (the “Affidavit Motion”);
iii.) the Plaintiffs’ motion for a declaration that they can attend each other’s cross-examinations on their affidavits filed on the Summary Judgment Motion (the “Exclusion Motion”); and
iv.) the Defendant’s motion compelling the Plaintiffs to produce privileged communications with their counsel from April and May 2016 (the “Privileged Documents”) (the “Privilege Motion”).
[2] Notwithstanding rigorous case management, the circumstances in which these 4 motions proceed are far from ideal. The Summary Judgment Motion was scheduled for February 21, 2018. These motions originally came before me on January 12, 2018 at which time I seized myself of any Masters motions. On a telephone case conference on January 19, 2018, I scheduled these motions for February 9, 2018. Given time constraints, counsel appeared before Justice Glustein (who was overseeing the Summary Judgment Motion) on February 2, 2018. Justice Glustein declined to grant an adjournment and directed the parties to attend at Civil Practice Court (“CPC”).
[3] I convened another telephone case conference on February 5, 2018 where it appeared that an adjournment of both the February 9 motions before me and the Summary Judgment Motion on February 21 would be necessary. The parties attended at CPC on February 9 where Justice Firestone adjourned the Summary Judgment Motion and ordered that it proceed on April 27, 2018, peremptory on the parties. Counsel appeared before me on February 9 after their attendance at CPC and I scheduled these motions to proceed on March 5. However, counsel failed to confirm their motions and did not ensure that the voluminous court files were compiled and brought forward and therefore, these motions could not proceed on March 5. While case management was provided in an attempt to narrow or resolve some issues, no progress was made and the motions were adjourned to April 3.
[4] As a result of losing a month in an already compressed schedule, the timing issues are now even more pronounced. In particular, the 4 motions relate, either completely or partially, to cross-examinations scheduled for April 6, 2018, 3 days away. The fact that the record is spread across multiple motion records and 6 Factums with additional materials still being handed up during the motion and that the parties cannot agree on small procedural details has contributed to the procedural morass.
[5] As I have indicated on numerous occasions, including in my numerous Endorsements, any issues with respect to the parties’ readiness to proceed with the peremptory Summary Judgment Motion on April 27 must be spoken to before a Judge at CPC. These Reasons are provided to permit the parties to proceed with cross-examinations on April 6 and deal with related issues with a view to being ready for the Summary Judgment Motion. Accordingly, I have declined to address substantially all of the parties’ submissions which relate to complaints and allegations with respect to the procedural misconduct or missteps of the other party which have led to the current time compressed schedule. In my view, these are more properly left for any costs submissions.
The Parties and the Action
[6] The Plaintiffs Kathleen Herzuk (“Herzuk”) and Cory Rose (“Rose”) are former employees of the Defendant, Dr. Mark Kleiman, a podiatrist. Dr. Kleiman also employed a third employee, Gina Sideris (“Sideris”, together with the Plaintiffs, the “Employees”).
[7] Herzuk was employed by Dr. Kleiman for approximately 28 years as a podiatric assistant and as an administrator. Rose was employed for approximately 9 years as a receptionist and office manager.
[8] This action arises from the sale of Dr. Kleiman’s practice (the “Practice”) to Daryl Cohen (the “Purchaser”) on or about May 11, 2016 (the “Sale”) a result of his retirement. Prior to the Sale, on or about April 30, 2016, Dr. Kleiman advised the Employees that the Sale was likely and forwarded 3 new employment agreements for each of the Employees prepared by the Purchaser (the “New Agreements”). The New Agreements were intended to reflect the key terms of the Employees’ existing employment arrangements and/or agreements.
[9] On or about May 9, 2016, Herzuk, on behalf of the Employees, sent emails to the Purchaser and Dr. Kleiman and his counsel, his son, Jonathan Kleiman, which included a counter-offer, a list of demands and a marked up version of Sideris’ New Agreement. The Plaintiffs allege that they did so at the encouragement of Dr. Kleiman and his son. Dr. Kleiman denies that he or his son encouraged them to do so and state that the Plaintiffs relied on independent legal advice which they shared and/or obtained together.
[10] The Purchaser rejected the Employees’ requests and initially declined to offer employment to any of them. After the closing of the Sale, Herzuk and Sideris withdrew their demands and sought employment with the Purchaser on the same terms as the New Agreements. However, the Purchaser only agreed to employ Sideris, who continues to work there. After the Sale, Dr. Kleiman terminated the Employees’ employment and paid all required statutory amounts.
[11] In their Statement of Claim issued on August 2, 2016, the Plaintiffs claim damages from Dr. Kleiman for wrongful dismissal and breach of employment contracts in the amounts of $129,504 for Herzuk and $33,458.20 for Rose representing pay in lieu of notice plus $50,000 in damages each for punitive and aggravated damages, and damages and back pay with the option of reinstatement under the Human Rights Code (Ontario). In his Statement of Defence dated September 29, 2016, Dr. Kleiman states, among other things, that the Plaintiffs could have completely mitigated any losses arising from the termination of their employment by accepting the New Agreements which were substantially on the same terms as their existing employment agreements.
II. The Law and Analysis
The Document Motion and the Affidavit Motion
[12] There is almost complete overlap between the Document Motion and the Affidavit Motion. The relief sought by the Plaintiffs on these motions is the same, namely, leave to file the following documents on the Summary Judgment Motion:
i.) a copy of an email, with redactions, from Sideris to Lou Ciotoli dated May 9, a lawyer, forwarding him a copy of Sideris’ New Agreement, copied to Herzuk and Rose (the “Email”);
ii.) a copy of a text message exchange between Sideris and Herzuk on May 11, 2016 regarding their employment issues including a reference to discussions with a lawyer and “Lou” (the “Text”, together with the Email, the “Additional Documents”).
[13] Sideris, a non-party, swore an affidavit on the Summary Judgment Motion dated May 9, 2017 (the “Sideris Affidavit”). In the Sideris Affidavit, Sideris states, among other things, that she obtained legal advice on her own from 1 lawyer, Ryan Kornblum; she never provided Herzuk or Rose with a copy of her marked up New Agreement and alleges that they took it from her desk without her consent; and that after speaking with Mr. Kornblum she did not intend to negotiate any amendments to her New Agreement.
[14] The Additional Documents were put to Sideris during her cross-examination on November 8, 2017. Sideris stated that she does not know who Lou Ciotoli is. Plaintiffs’ counsel proceeded to mark the Additional Documents as Exhibits to Sideris’ cross-examination however, Defendants’ counsel refused to let him do so on the basis that Sideris could not identify the Additional Documents therefore, counsel could not establish their foundation. The basis of the refusals offered by Defendant’s counsel is that to mark the Exhibits and produce Sideris’ copy of the Text, was an “improper ambush of the witness”. It appears that Sideris has now produced all correspondence requested on her cross-examination including with respect to legal advice.
[15] Therefore, in order to have the Additional Evidence filed and before the Judge on the Summary Judgment Motion, the Plaintiffs seek leave to file the Additional Documents on their own or with the brief Supplementary Affidavit which was sworn for the purpose of attaching the Additional Documents and other documents produced by Sideris with respect to legal advice. The Defendant opposes this motion on the basis that the Plaintiffs and their counsel had copies of the Additional Documents long before Sideris’ cross-examination and “ambushed” Sideris by putting them to her on her cross-examination and that the Defendant will not be able to fully test the evidence.
[16] Rule 39.02(2) states as follows:
“A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.”
[17] In Brock Home Improvement Products v. Corcoran, 2002 CarswellOnt 794 (S.C.J.), Stinson J. states the following regarding Rule 39.02(2):
“[8] Rule 39.02(1) and (2) are an important and integral part of the procedural code governing the conduct of motions and applications. These rules are designed to place finite limits on the evidentiary element of those proceedings, an element that is all too frequently time-consuming, expensive and drawn-out. These rules oblige the parties to consider the issues and to put all relevant evidence forward before embarking upon cross-examination of the opposite party's witnesses. This is the approach mandated by the rules to achieve the "just, most expeditious and least expensive determination" of motions and applications. Consistent with that approach, it is only in exceptional cases that resort should be had to rule 39.02(2).
[9] I believe that the words "ought to be permitted to respond" found in rule 39.02(2) impose a burden on a party who seeks leave to show more than an absence of non-compensable prejudice to the opposite party. In my view, those words import a requirement for the party who seeks leave under rule 39.02(2) to provide, by way of evidence on the motion for leave, a satisfactory explanation for its failure to include the proposed additional evidence as part of its pre-cross-examination case. The court should scrutinize carefully the reasons for the omission and the evidence offered in support of that explanation. To approach the issue otherwise undermines the integrity of the evidentiary framework for motions and applications that is mandated by the rules. Absent some reasonable explanation for the original omission, leave should be refused.”
[18] The criteria on a motion under Rule 39.02(2) is as follows:
i.) is the evidence relevant?;
ii.) does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time?;
iii.) would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms or an adjournment?; and
iv.) does the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset? (Sure Track Courier Ltd. v. Kaisersingh, 2011 ONSC 7388 at para. 28; Rescon Financial Corporation v. New Era Development (2011) Inc., 2017 ONSC 4081 at padras. 25-26).
[19] Leave should be granted sparingly and the party seeking to deliver further affidavit evidence bears a very high threshold to demonstrate that leave should be granted (Sure Track at para. 29). Supplementary materials should not be used as a mechanism for correcting deficiencies in the motion materials (Rescon at paras. 25-26).
[20] The Court of Appeal has provided the following guidance with respect to non-compensable prejudice:
i.) there must be a causal connection between the non-compensable prejudice and the amendment such that the prejudice must flow from the amendments and not somewhere else;
ii.) the non-compensable prejudice must be actual prejudice, ie. evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment and specific details must be provided;
iii.) non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length of complexity of the trial (1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 2017 CarswellOnt 369 (C.A.) at para. 25; Andersen Consulting v. Canada (Attorney General), 2001 8587 (ON CA), 2001 CarswellOnt 3139 (C.A.) at paras. 34 and 37).
[21] I am also mindful of my role on these interlocutory motions with a Summary Judgment Motion scheduled to proceed before a Judge on April 27. As summarized by Master MacLeod (as he then was) in Allianz Global Risks US Insurance Co. v. Canada Attorney General, 2016 ONSC 29, in the context of striking out affidavits and other documents at the interlocutory stage:
“18…….Where a different master or judge is hearing the main motion, the concern must be that the judicial officer hearing the preliminary motion not usurp the role of the judicial officer hearing the merits. If the same person is hearing both then the concern must be not to inappropriately form opinions about the weight to be given to evidence that may bias the hearing on the merits. In addition, treating the preliminary motion as a separate motion opens the possibility of two sets of appeals, one an appeal of the preliminary motion and the other an appeal on the merits. This should generally be avoided in my view.
20 In summary, with respect to interlocutory motions for production of documents, a preliminary motion will generally not be the preferable approach. Any issues of admissibility, relevance or weight should generally be dealt with by the judicial officer hearing the main motion..”
[22] Turning to the criteria set out in Sure Track and Rescon, I conclude that the Additional Documents are relevant and responsive to matters at issue on the Summary Judgment Motion and issues arising on Sideris’ cross-examination. These issues include whether Sideris obtained legal advice from multiple lawyers, including Mr. Ciotoli, whether she discussed this and other legal advice with the Plaintiffs and other statements she made in the Sideris Affidavit.
[23] The Defendant has not provided any evidence of actual, non-compensable prejudice if leave is granted including details as to the nature and kind of prejudice he would suffer, specifically any opportunity which he would lose in these proceedings if leave is granted. To the contrary, Defendant’s counsel will have a full opportunity to cross-examine Herzuk on April 6, including on the Supplementary Affidavit. Further, as Sideris will be re-attending, the unredacted Additional Documents can be put to her. It also appears that Defendant’s counsel may already have copies of the unredacted Additional Documents.
[24] I agree with the Defendant that the Plaintiffs have not provided an adequate explanation for their failure to initially file the Additional Documents. It appears that the Plaintiffs had copies of the Additional Documents, that they likely provided them to their counsel, but did not file them on the Summary Judgment Motion. However, in my view, this factor is mitigated somewhat by the absence of any non-compensable prejudice and the fact that although the Additional Documents were not produced until Sideris’ cross-examination, they are not being produced for the first time after all cross-examinations or even after Sideris’ cross-examination was completed.
[25] The Defendant submits that this failure to disclose the Additional Documents and the resulting issues could have been avoided had the Plaintiffs delivered their Affidavits of Documents and encourages me to order them to do so. Citing Iannarella v. Corbett, 2015 ONCA 110, the Defendant submits that he is entitled to receive the Plaintiffs’ Affidavits of Documents. Notwithstanding all of the case management and attendances before numerous Judges and myself and the fact that the Summary Judgment Motion is imminent, the Plaintiffs have chosen to proceed without delivering Affidavits of Documents, and the Defendant has chosen not to request or bring a motion to compel one to be delivered or delivered their own Affidavit of Documents. Given that I have no motion before me requesting an Affidavit of Documents and that to order the Plaintiffs, and perhaps the Defendant, to do so may cause cross-examinations to be adjourned and potentially affect the peremptory Summary Judgment Motion date fixed by a Judge, I decline to do so at this time. If, after cross-examinations and perhaps another attendance at CPC, one or both the parties wish to bring a motion in this regard, they may do so. It may be the case that cross-examinations identify additional documents which the Defendant wishes to obtain, which can be done by way of undertaking or, if refused, motion to compel production.
[26] In all of this, the Defendant’s position contemplates that if leave to file the Additional Documents and/or the Supplementary Affidavit is denied, the transcript from Sederis’ cross-examination will still be before the Judge hearing the Summary Judgment Motion but the Additional Documents will not. In my view, it would be inconsistent and cause a disconnect if the Judge hearing the Summary Judgment Motion were to have the transcripts, where the Additional Documents are discussed, but not the Additional Documents. In my view, this lends further support to my conclusion that it is not appropriate in the circumstances to derogate from the general rule that issues of admissibility, relevance or weight should be dealt with by the Judge on the Summary Judgment Motion.
[27] Having considered all of the factors and circumstances above, including that leave should be granted sparingly, I conclude that the Plaintiffs have met the high threshold to demonstrate that leave should be granted to file the Supplementary Affidavit with the Additional Documents, unredacted, attached as Exhibits, on the Summary Judgment Motion.
[28] I am also satisfied that Sideris should re-attend for a maximum of 1 hour to answer any questions arising from her undertakings and the Additional Documents, including the unredacted Email, with any additional questions to be asked in writing. As I am advised that she is unavailable on April 6, counsel shall arrange Sideris’ re-attendance at a time when she is available.
The Exclusion Motion
[29] The Plaintiffs seek a declaration that they can attend at each other’s cross-examinations on April 6. The Defendant seeks an exclusion order.
[30] Defendant’s counsel intends to cross-examine Herzuk first with Rose’s to take place immediately afterwards by teleconference. The practical effect of the order sought by the Plaintiffs would be that when Herzuk is cross-examined, Rose, who lives outside of Toronto and is attending by teleconference, would be permitted to listen to Herzuk’s cross-examination before his own. While the Defendant does not object to Herzuk remaining after her own cross-examination is completed and being present during Rose’s cross-examination, they object to Rose being on the line during Herzuk’s cross-examination.
[31] The Defendant relies on the Divisional Court’s decision in Lazar v. TD General Insurance Company, 2017 ONSC 1242. In Lazar, which was decided in the context of examinations for discovery, not cross-examinations on affidavits, the Divisional Court held that where the credibility of co-parties will be the central issue at trial, an exclusion order will attenuate the risk of a co-party unconsciously tailoring their evidence to achieve consistency and allows the party seeking exclusion to test the reliability and credibility of the co-parties’ independent recollections’ and evidence (Lazar at para. 48). The Divisional Court set out a number of factors to consider, including whether the co-parties have the same counsel and common interests, whether there is a risk that evidence will be tailored and whether credibility will be an issue at trial (Lazar at paras. 39-40). Depending on the existence of other factors, a risk that evidence will be tailored may be sufficient to discharge the onus that an exclusion is necessary to meet the ends of justice (Lazar at paras. 38-40).
[32] In my view, Lazar does not apply to the present case, where the exclusion sought by the Defendant is with respect to cross-examinations on affidavits filed, not examinations for discovery. The Courts have made a distinction between exclusion orders sought with respect to cross-examinations and examinations for discovery and have held that the onus to justify exclusion is higher on cross-examinations.
[33] As Cullity J. stated in Changoo v. Changoo, (1999) CarswellOnt 831 at paragraph 10:
“There is, of course, one obvious distinction between cross-examination on an affidavit on a motion or application on the one hand, and an examination for discovery or examinations at trial on the other. In the first case, the evidence in chief will, in effect, have been given in the affidavit and I am not aware that it has ever been suggested that this could, or should, be withheld from another party. The suggestion is, if I understand it correctly, that the latter could be excluded only from the cross-examination. I believe this could be justified only in very exceptional circumstances.”
[34] This distinction was also highlighted by Henderson J. in 1264237 Ontario Ltd. v. 12664240 Ontario Ltd., (2007) CarswellOnt 62266 at para. 16:
“Therefore, an affiant who might otherwise be tempted to tailor his evidence after observing the cross-examination of another party may not be able to do so because that affiant will have already attested to a certain set of facts. Thus, the mischief that might be caused by one party observing another party's examination is less likely to occur where the examination in question is a cross-examination on an affidavit rather than an examination for discovery.”
[35] The test for exclusion on cross-examination was summarized by R.J. Smith J. in Heasley v. Labelle, 2013 ONSC 2601:
18 I agree with the reasons of both Master Roger in Besner, supra, and Master MacLeod in Faraz-Uddin Mirza et al v. Omar Ali Ghadbane et al., March 22, 2012 unreported which followed the Ontario Court of Appeal decision in Liu Estate, supra. Master MacLeod stated as follows:
In summary a party may only be excluded from participation in a particular phase of the litigation if there is evidence to demonstrate a real risk of tailoring or intimidation or other conduct that might lead to unfairness to the other party and that such removal will not prejudice the party against whom the order is made.
19 I am bound to follow the Ontario Court of Appeal's more recent decision in Liu Estate rather than the British Columbia Court of Appeal decision in Sissons, supra, and the line of cases which follow it.
20 To summarize, each co-party has an inherent and fundamental right to be present at all parts of the litigation process, including discovery and at trial. A co-party will only be excluded if the moving party shows there is sufficient evidence to demonstrate a real risk of tailoring, parroting, intimidation, disturbance of the proceeding, or where the ends of justice require exclusion. The onus on the moving party is to present sufficient evidence of the above factors to overcome a co-party's fundamental right to be present at all parts of the litigation process. The nature of the relationship between the co-parties by itself is not enough to constitute cause for exclusion.
[36] In my view, the Defendant has not provided sufficient evidence demonstrating a real risk that the Plaintiffs will tailor their evidence or engage in other conduct, including parroting, intimidation or disturbance of the cross-examinations leading to unfairness such that the Plaintiffs’ fundamental right to be present at each other’s cross-examination should be interfered with. While the Plaintiffs may share many of the characteristics set out in Lazar, this is not sufficient to exclude Rose from Herzuk’s cross-examination. Consistent with the case law on cross-examinations, the Plaintiffs have already committed much of their evidence to their affidavits, which mitigates some of the risk which would be present on examinations for discovery involving co-plaintiffs. The fact that Rose will be attending by teleconference and not in person further mitigates the risk of the kind of conduct required to satisfy the test for exclusion.
[37] Having considered all of the relevant factors, I conclude that no exclusion order is necessary or appropriate in these circumstances and the Plaintiffs may attend at each other’s cross-examinations.
The Privilege Motion
[38] The Defendant submits that he is entitled to and requires the Privileged Documents in order to conduct fair and proper cross-examinations of the Plaintiffs.
[39] The Defendant makes numerous submissions in this regard. Relying on Iannarella, the Defendant submits that, while not a general proposition of law, Iannarella provides that in the present case, where the Plaintiffs have not delivered their Affidavits of Documents listing the Privileged Documents on Schedule “B”, they are not entitled to assert privilege over them. In my view, this is an overbroad reading of Ianarella, which, in any event is distinguishable given that it related to privileged surveillance introduced during trial.
[40] The Defendant, relying on Toronto-Dominion Bank v. Leigh Instruments (Trustee of), 1997 12113 (ON SC), further submits that deemed waiver has occurred because the Plaintiffs have alleged in their Statement of Claim that they relied on the representations of Dr. Kleiman and his son and Dr. Kleiman in his defence alleges that the Plaintiffs relied on their own legal advice, which he alleges they are hiding. The Defendant also submits that deemed waiver of privilege has occurred because the Plaintiffs put the Email to Ms. Sideris and asked that she produce all of her privileged correspondence.
[41] In my view, none of the Defendant’s submissions are sufficient to establish that an exception is appropriate to the long established indisputable principle that solicitor-client privilege is fundamental to the proper functioning of the legal system and should only be set aside when absolutely necessary (Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 at paras. 26 and 34).
[42] The law with respect to one of the limited exceptions to this rule, deemed waiver of privilege, was summarized by Perell J. in Creative Career Systems Inc. v. Ontario, 2012 ONSC 649. A deemed waiver of privilege and an obligation to disclose a privileged communication requires two elements: i.) the presence or absence of legal advice is material to the lawsuit; and ii.) the party who received the legal advice must make the receipt of it an issue in the claim or defence (Creative at para. 30).
[43] Citing the decision of Corbett J. in Guelph (City) v. Super Blue Box Recycling Corp., 2004 34954 (ON SC), [2004] O.J. No. 4468 (S.C.J.), Perell J. states:
“….the deemed waiver occurs as a matter of the party’s choice. Waiver does not occur because the party discloses that he or she received legal advice, nor does it occur because the party admits that he or she relied on the legal advice; it occurs because the party chooses to use the legal advice as a substantive element of his or her claim or defence” (Creative, at para. 31).
[44] In my view, there is no basis to conclude that deemed waiver of privilege has occurred. Specifically, the Defendant has not demonstrated that the Plaintiffs have used the receipt of legal advice as a substantive element of their claim, whether by reference to the pleadings, affidavits, transcripts or positions taken in the proceedings.
[45] This does not mean that the Defendant may not bring a motion compelling the Plaintiffs to produce the Privileged Documents based on answers given or refusals provided on the forthcoming cross-examinations. However, the fact that the Plaintiffs may, through correspondence, have already indicated that they do not intend to produce the Privileged Documents or answer questions relating to them, does not provide a basis to conclude that deemed waiver has occurred or for this court to prospectively order production of the Privileged Documents.
[46] Having considered all of the factors and circumstances above, I conclude that the Defendant is not entitled to the Privileged Documents and the Privilege Motion is dismissed, without prejudice to the Defendant’s right to bring a motion to compel answers to questions or productions refused on cross-examinations.
III. Disposition
[47] Order to go as follows:
i.) the Defendants are granted leave to file the Supplementary Affidavit with the Additional Documents, unredacted, attached as Exhibits, on the Summary Judgment Motion;
ii.) Sideris shall re-attend for a maximum of 1 hour to answer any questions arising from her undertakings and the Additional Documents, including the unredacted Email, on a date when she is available to be arranged between counsel, with any additional questions to be asked in writing;
iii.) the Plaintiffs may attend at each other’s cross-examinations on affidavits filed on the Summary Judgment Motion; and
iv.) the Privilege Motion is dismissed without prejudice to the Defendant’s right to bring a motion to compel answers to questions or productions refused on cross-examinations.
[48] If the parties are unable to agree on the costs of these motions, they may file written costs submissions not to exceed 3 pages (excluding costs outlines) with me through the Masters Administration Office on or before June 15, 2018.
Released: April 5, 2018
Master M.P. McGraw