Court File and Parties

COURT FILE NO.: CV-15-2297-00 DATE: 2018 08 07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SABAH ZAIB V. K. Sharma, for the Plaintiff Plaintiff

- and -

PRITPAL KAUR SANDHU, MALIK FINANCIAL CONSULTANTS, MAQSOOD MALIK aka MAC MALIK, EASY ACCESS HOME COMFORT, NOSHIN ASGARI, OMEGA CONSTRUCTION & LANDSCAPING INC., SAHER HANNA aka CAMARAN HANNA A. Sidhu, for the Defendant Sandhu Defendants

HEARD: July 3, 2018

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

[1] The Defendant Pritpal Kaur Sandhu, in September, 2016 placed before the court a motion for summary judgement in which she sought the dismissal of this action as against her.

[2] The motion was adjourned a number of times, and was finally scheduled to be heard on July 3, 2018.

[3] The Plaintiff also has a motion before the court seeking leave to file additional evidence, including affidavits and transcripts.

[4] In order to consider the motion for leave, it is necessary to review the various attendances in court in regards to the motion for judgment.

[5] The motion for judgment, originally brought in 2016, was scheduled to be heard as a long motion on July 5, 2017. The parties appeared before Shaw J. on that date and consented to an adjournment of the motion to February 14, 2018. As part of her endorsement, Shaw J. ordered that all expert reports and further affidavits to be relied upon are to be served and filed by October 1, 2017. Any cross-examinations were ordered to be conducted by December 1, 2017.

[6] On February 14, 2018, the parties appeared before McSweeney J. and the long motion was adjourned two weeks, to February 28, 2018, to allow for the cross-examination of Ms. Sandhu, which was scheduled for the afternoon of February 14th.

[7] McSweeney J, also endorsed the following:

“Accordingly I direct that any additional material to be relied on at the return of the motion shall be filed by 2:00 pm on Friday, February 23, 2018.”

[8] On February 28, 2018, the parties again appeared before McSweeney J. However, the motion could not proceed because there was no judge available to hear it. The motion for summary judgement, was adjourned to July 3, 2018.

[9] On that occasion McSweeney J. endorsed that no further materials were to be filed without leave of the Court and the matter was noted to be pre-emptory against both parties.

[10] The Plaintiff’s motion for leave to file additional materials was not prepared and served on the solicitors for Sandhu until June 20, 2018. The affidavit material sought to be filed includes the report of a handwriting expert, dated June 7, 2018, which report was allegedly sent to counsel for Sandhu on June 11, 2018.

[11] The expert was not retained to complete the report until sometime late in May, 2018.

[12] Counsel for the Plaintiff submits that the export report resulted in part from answers provided by Ms. Sandhu on her cross-examinations held on February 14, 2018. She was questioned about a handwritten document allegedly signed by her on April 2, 2014, in which she acknowledged owing the Plaintiff $60,400. Apparently she denied or placed in doubt, the authenticity of the document.

[13] It is the opinion of the expert retained by the Plaintiff that the April 2, 2014, document was written and signed by Ms. Sandhu.

[14] However, the need for such a report was known to the parties in 2017. As noted above, on July 5, 2017, Shaw J. ordered that all expert reports were to be filed by October 1, 2017. I accept that the reference to expert reports included reports of handwriting identification experts.

[15] It is clear from the endorsements that the court has been attempting to move the motion for summary judgement along and for that reason have imposed various time limits and/or restrictions on the filing of evidence.

[16] Noting that Ms. Sandhu was to be cross-examined on February 14, 2018, McSweeney J. provided a specific date by which additional material was to be filed; February 23, 2018.

[17] Nevertheless, the Plaintiff did not commission the expert report until months later, and while requiring leave to file additional material as per McSweeney J.’s endorsement, waited until two weeks before the pre-emptory hearing of the summary judgement motion to serve his motion to file further evidence, returnable on the return date of the summary judgment motion.

[18] Counsel for Ms. Sandhu submits that if leave is granted and the additional material is filed, he will require further time to file new responding material.

[19] Rule 39.02(2) of the Rules of Civil Procedure, states that a party who has crossed-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing 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.

[20] I accept that I have the authority to grant leave for the filing of such material but in this case, the granting of leave would violate earlier orders which set specific time limits, although McSweeney J. in her last endorsement left the door open for the granting of leave.

THE LAW

[21] Skrobacky v. Frymer, 2011 ONSC 3295 is a decision of Corrick J. in which he heard a motion seeking leave to file new evidence.

[22] At paragraph 12 of the ruling, Corrick J. set out the factors to be considered on a motion for leave pursuant to Rule 39.02(2). They are:

a. Is the evidence relevant? b. Does the evidence respond to something raised on cross-examination? c. Will the granting of leave result in non-compensable prejudice? d. Is there a satisfactory explanation for not presenting the evidence at the outset?

[23] It would appear that the evidence is relevant and to some extent is in response to something raised on cross-examination. Ms. Sandhu, when cross-examined on February 14, 2018, put into issue the authenticity of the handwritten document dated April 2, 2014, and it is submitted by counsel that as a result he retained a handwriting expert for an opinion as to the April 2nd document.

[24] However, I also note the earlier endorsement setting out the time limits for the filing of expert witnesses and accept that handwriting evidence would be part of this trial.

[25] In regards to prejudice, had the matter proceeded on the 14th or 28th of February, as ordered, the evidence for which counsel seeks leave would not have existed. Accordingly, the Defendant Sandhu can claim non-compensable prejudice if leave is granted.

[26] Further, the admission of this evidence would conflict earlier endorsements which set out timelines for the filing of material.

[27] For example, knowing that Ms. Sandhu was to be cross-examined on February 14th, McSweeney J. ordered that any new material, presumably arising from the cross-examinations was to be delivered by February 23, 2018, because the motion for summary judgment was adjourned to February 28th for argument.

[28] The Plaintiff waited until June 20th to deliver this motion to seek leave, to be heard on the same day scheduled for the summary judgement motion. The explanation provided by counsel for the Plaintiff for waiting so long was less than satisfactory. He did not adequately explain why he did not retain his expert until some months after the last court attendance. Had he sought leave by a motion within weeks following cross-examination, counsel for the Defendant Sandhu would have known if he had to respond to the new material.

[29] Shah v. LG Chem Ltd., 2015 ONSC 776 is a decision of Perell J. on a motion brought under Rule 39.02(2) seeking leave to file a further affidavit.

[30] At paragraph 22 Perell J. references the text, The Law of Civil Procedure in Ontario and noted,

“The procedure for a motion provides for closure or limits the delivery of evidence for the motion. The Rules require that all parties must submit their evidence before any cross-examinations of opposing parties proceed…”

[31] At paragraphs 38 and 39 Perell J. wrote,

“As noted above, however, the Plaintiffs submit that it is in the interests of justice to grant leave because the Court itself would be prejudiced by the absence of the additional evidence because the Court would be missing important information relevant to the jurisdictional analysis.

However, in the context of an adversarial system of justice, where there are rules of civil procedure and rules of evidence, I do not see how the Court can be said to be prejudiced if it enforces the rules of civil procedure and the law of evidence.”

[32] Perell J. also considered the feeble explanation offered with respect to why the material was not filed prior to cross-examinations in support of the motion to leave (para. 34).

[33] I accept that the material which the Plaintiff wishes to file is important to her. It is relevant to the authenticity of a loan document in an action where the she is seeking to be repaid monies.

[34] It can be said the court has an interest in seeking the truth and merits of any action after hearing the relevant evidence.

[35] Conversely, the courts expect their orders to be followed. Time limits were set out for the filing of evidence.

[36] Apart from Rule 39.02, Justice McSweeney ordered that there can be no further filings without leave. This is after an endorsement two weeks earlier setting a time limit for the filing of material relating to the cross-examinations of Ms. Sandhu.

[37] On that background it seems to me that the threshold for granting leave is even higher than the threshold in regards to Rule 39.02(2).

[38] I find that the explanation offered as to why the information sought to be filed was not delivered to be less than satisfactory. Counsel for the Plaintiff argues that he did not know prior to cross–examination that Ms. Sandhu would not agree to the authenticity of the April 2, 2014, document. As I stated to him, the fact that Ms. Sandhu was seeking summary judgment on grounds that the debt owed to the Plaintiff by her has been paid, and in an amount much less than set out in the document of April 2, 2014, brings the authenticity and/or bona fides of the document in issue from the beginning.

[39] I also accept that the issue of handwriting experts had been known for some time and is the subject of an order for the filing of expert reports within a certain time frame.

[40] In general terms, courts should not expect orders to be adhered to unless they are prepared to enforce such orders.

[41] I recognize that parties who have missed time limits are often allowed to file their material, however such opportunities are not endless and a line has to be drawn.

[42] Even accepting the material is in response to something raised in cross-examinations although, as noted, I believe the “something” was already known to the Plaintiff, and leaving aside the prejudice issue, I reject the explanation for requesting leave, to be less than satisfactory and on that ground alone the motion for leave can be dismissed.

[43] The Plaintiff’s motion for leave dated June 20, 2018, and returnable on July 3, 2018, is dismissed.

[44] When the motion for summary judgement proceeds before me on October 15, 2018, the issue of costs in relation to the leave motion can be addressed.

Bielby J.

Released: August 7, 2018