Court File and Parties

COURT FILE NO.: CV-16-565530 MOTION HEARD: 14 August 2018 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sadaf Ali, Plaintiff AND: David Newton, Defendant

BEFORE: Master Jolley

COUNSEL: Jill Van Vugt, Counsel for the Moving Party Defendant Luke Hamer, Counsel for the Responding Party Plaintiff

HEARD: 14 August 2018

Reasons for Decision

[1] The plaintiff was a passenger on the defendant’s motorcycle in August 2013 when the defendant, it is alleged, lost control of the motorcycle, which then fell on the plaintiff and crushed her leg. She commenced an action against the defendant on 7 December 2016.

[2] The defendant has a motion for summary judgment returnable next week where he seeks to have this action dismissed as being commenced outside the two year limitation period.

[3] The defendant submitted an affidavit from a lawyer employed by his insurer in support of the summary judgment motion. The affidavit attached and relied on the transcript from the defendant’s examination for discovery that was held on 20 July 2017 as well as the transcript from the plaintiff’s examinations for discovery commenced on 20 July 2017 and concluded on 13 September 2017.

[4] In response to the motion for summary judgment, the plaintiff swore an affidavit on 31 May 2018. Dr. Oren Gozlan, a psychologist, conducted a psychological assessment of the plaintiff to determine whether she was incapable of commencing a lawsuit within the limitation period because of a mental or psychological condition. Dr. Gozlan also filed an affidavit in response to the defendant’s summary judgment motion on behalf of the plaintiff to which he appended his report.

[5] The defendant cross examined both the plaintiff and Dr. Gozlan on their affidavits on 10 July 2018.

[6] Today he seeks leave under Rule 39.02(2) to file additional evidence that he provided to his lawyer the day after the plaintiff’s cross examination. In particular the defendant wishes to file articles from 2013 to 2015 either written by the plaintiff about her involvement in a group called Ex-Muslims of North America or in which she was interviewed about her involvement. He then seeks to file 128 pages of detailed and explicit text messages between the plaintiff and the defendant from December 2014 to September 2015, the content of which ranges from photos of food and dogs to messages of an explicit sexual nature. Lastly, he seeks to introduce 59 pages of emails between him and the plaintiff from November 2013 to July 2016. In the emails the parties send photos of food, motorcycles, etc. as well as generic comments on their day and their relationship.

The Law

[7] The parties are agreed that in order for the defendant to be granted leave to file responding affidavit material after having conducted cross-examination under Rule 39.02(2) of the Rules of Civil Procedure, he must meet the following test:

(1) the evidence must be relevant;

(2) the evidence must respond to a matter raised on the cross-examination – not necessarily for the first time;

(3) granting leave to file the evidence must not result in non-compensable prejudice that could not be addressed by imposing costs/terms/an adjournment; and

(4) he must provide a reasonable or adequate explanation for why the evidence was not included at the outset.

Even where the above factors are not met, the court has residual discretion under rule 1.04 of the Rules of Civil Procedure to permit the evidence if it is in the interests of justice to do so. (First Capital Realty Inc. v. Centrecorp Management Services Ltd. at paragraphs 9 and 10)

[8] However, that is not all the defendant must show as leave under Rule 39.02(2) should be granted sparingly. In Brock Home Improvement Products Inc. v. Corcoran, 2002 CarswellOnt 794 (S.C.J.), the court held at paragraph 8:

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] The moving party has a high threshold to meet and the delivery of subsequent affidavits cannot be used as a mechanism for correcting deficiencies in the motion materials.

The Application of the Law to the Facts

A. Is the evidence relevant?

[10] In her statement of claim, the plaintiff pleads:

14. The Plaintiff pleads that in the three years after the accident, she had been experiencing severe mental health problems resulting from physical, sexual, and psychological abuse from family members and psychological abuse from the Defendant, which resulted in the delay in issuing this Statement of Claim. These circumstances include, but are not limited to: (a) Severe and chronic depression, including suicidal ideation; (b) Repeated physical and sexual abuse from a family member; (c) Repeated physical abuse from the Plaintiff’s parents; and (d) Repeated psychological abuse from the Defendant including attempts to prevent the Plaintiff from reporting this accident.

15. The Plaintiff was in an extremely vulnerable state due to the aforementioned circumstances in her life and thus could not, through the exercise of reasonable diligence, have brought this action more than two years before the date of the issuance of this Statement of Claim.

[11] The defendant argues that the material he seeks to introduce demonstrates that the relationship between him and the plaintiff was not one marked by psychological abuse by him against her. I find little probative or relevant to this issue in the material provided. Pages and pages of the texts relate to irrelevant photos and conversations. I do not find the fact that the parties exchanged explicit sexual texts would demonstrate that the plaintiff was not in an abusive relationship, as argued. The one exception is the email exchange between the parties entitled Insurance and dated 17 July 2016 and 30 July 2016 (pages 58 and 59 of the motion record). Those exchanges do contain a discussion about the reason for the apparent failure of the defendant to report the accident to his insurer. However, they do not meet the other aspects of the test for admission, as discussed below.

B. Does the evidence respond to a matter raised on the cross-examination – not necessarily for the first time?

[12] The plaintiff gave examples on her cross-examination of behaviour of the defendant she considered abusive. It ranged from chastising her for wanting to be independent when she thought about dropping out of school to breaking up with her and then getting back together, from ignoring her for several weeks to “gaslighting” her by withdrawing and then refusing to acknowledge that he was withdrawing.

[13] Only a limited number of the texts go to these issues. There are text messages at page 122 that speak to the defendant being the one who constantly initiated breakups. However, the defendant has not challenged that he broke up with her and that they got back together. The texts add nothing further.

C. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs/terms/an adjournment?

[14] It is suggested that the graphic texts are included simply to embarrass, psychologically abuse or further bully the plaintiff. Had I found the texts to be relevant, I would not have refused them on this ground alone. However, their very slight probative value does not warrant the inclusion of these highly personal and graphic texts.

D. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

[15] I do not accept the defendant’s explanation as to why this evidence was not included at the outset. The defendant took the position that the plaintiff had not sufficiently particularized her allegations of abuse before her cross-examination. It was only after she was cross-examined that the texts, articles and emails became relevant. For instance, it was only then that she stated that because of her depression and severe anxiety she was debilitatingly tired, could not leave her room or sometimes she didn’t sleep at all. She stated on her cross-examination that she thought if she started an inquiry with a lawyer about commencing an action, the defendant would leave her (Q94). She also agreed that as of May 2015 she and the defendant had no chance of getting back together (Q136).

[16] I disagree. The plaintiff raised her allegation of psychological abuse in her statement of claim in December 2016. Further, she was questioned about this alleged abuse during her examination for discovery in July and September 2017. Specifically she was asked if the behaviour of the defendant that she had complained about amounted to abuse. She replied that there was a certain form of emotional abuse that she saw from him. By way of example, she said that he broke up with her the day after she came to his place uninvited (Q537). She stated that his way of trying to control her behaviours was to disappear instead of just talking about it. She stated that it was really harsh to have someone disappear for months and then come back to apologize and promise you something again and again.

[17] She again raised this issue in the affidavit she filed in response to the summary judgment motion in May 2018. She clearly stated in that affidavit at paragraph 15 that she did not make a claim, even had she known she could have, as she did not want to risk a rift with the defendant. She felt emotionally dependent on him and feared risking abandonment and rejection.

[18] It was also raised in the affidavit of Dr. Gozlan. In the report appended to his affidavit he stated at page 46:

During her relationship with her boyfriend Ms. Ali was depressed, anxious and preoccupied with the stressors within their relationship, as well as negotiating her studies and other activities. Given Ms. Ali’s awareness that her boyfriend did not want to report the accident to the insurance, it is unlikely, from a psychological perspective, that she would have been able to provide him private physiotherapy receipts, let alone fathom making any legal claims against him. Ms. Ali is preoccupied with fears of abandonment and loss and would not act in any way that would jeopardize her relationship.

[19] The defendant has not explained why, once he read the responding affidavit of Dr. Gozlan and the responding affidavit of the plaintiff on this motion, he did not file a reply affidavit attaching these texts, articles and emails to demonstrate that the plaintiff was not emotionally dependent on him.

[20] Rule 39.02(2) requires that the court must be satisfied that “the party ought to be permitted to respond to any matter raised on the cross-examination” as part of the test for leave. In discussing this aspect, the court noted in Brock Home Improvement, supra, stated at paragraph 9:

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 application that is mandated by the rules. Absent some reasonable explanation for the original omission, leave should be refused.

[21] I find that the defendant has not provided a satisfactory explanation for his failure to include the information earlier, particularly as the allegation of psychological abuse was raised in the statement of claim and continued, along with an allegation of power imbalance and concern that the defendant would leave the plaintiff, during the plaintiff’s examination for discovery and in the responding materials on the upcoming summary judgment motion.

[22] I find that the defendant has not met the very high threshold that would permit the introduction of this post cross-examination evidence (Shah v. LG Chem Ltd., 2015 ONSC 775 as cited in 2386240 Ontario Inc. v. City of Mississauga, 2018 ONSC 3992 at paragraph 29).

[23] For these reasons, the defendant’s motion for leave to introduce additional evidence by way of affidavit is dismissed.

[24] The parties agreed that the costs of this motion are to be left to the judge hearing the summary judgment motion and I so order.

[25] They further agreed, and I so order, that they be permitted to file a Joint Document Brief for the summary judgment motion.

Master Jolley Date: 15 August 2018