Court File and Parties

Court File No.: CV-16-00564154 Motion Heard: 20180919 Superior Court of Justice - Ontario

Re: Bernadine Sach in her capacity as Power of Attorney for Albertina Alexandre, Plaintiff And: Damasia Viola, Defendant And: Damasia Viola, Plaintiff by Counterclaim And: Bernadine Sach in her capacity as Power of Attorney for Albertina Alexandre, and Bernadine Sach personally

Before: Master B. McAfee

Counsel: D.A. Kuze, Counsel for the Moving Party, the Defendant, Plaintiff by Counterclaim T. Walker, Counsel for the Responding Parties, the Plaintiff, Defendants to the Counterclaim

Heard: September 18, 2018

Reasons for Decision

[1] This is a motion brought by the defendant, plaintiff by counterclaim (Viola) for an order compelling the plaintiff, defendant to the counterclaim Albertina Alexandre (Alexandre) to re-attend on her cross-examination to answer nine questions on the record and any relevant and proper questions arising therefrom.

[2] The plaintiff and defendants to the counterclaim (collectively the responding parties) submit that the motion should be dismissed with costs payable by Viola.

[3] The nine questions at issue were refused on the cross-examination of May 3, 2018, and subsequently answered in writing on June 19, 2018 (exhibit D to the affidavit of Cheryl Ho).

[4] In Caputo v. Imperial Tobacco Ltd., 2003 CarswellOnt 6717 (Master), the following is stated at para. 2:

Rule 34.15(1)(a) contemplates that a witness who refuses to answer a proper question may be ordered to reattend to answer the question under oath and to answer proper follow up questions. As a general rule this is what is ordered and there is authority to the effect that one party cannot insist on the other accepting answers by way of letter even though this is a common and practical manner of dealing with simple undertakings and refusals. The rule is not mandatory however and the right to oral cross examination must be tempered by the right of the court to control its own process.

[5] While a re-attendance is not an absolute right, in the context of this proceeding, I am satisfied that the relief sought is reasonable and just. In his order of September 1, 2017, Master Short ordered various terms and conditions concerning conduct of the cross-examinations for the detailed reasons given (see Sach v. Viola, 2017 ONSC 5202). The answers were not provided in accordance with the terms and conditions set forth in the order of Master Short dated September 1, 2017. The answers were not provided during a cross-examination in which counsel and an agreed upon interpreter were the only persons present. In addition, the answers were not provided under oath.

[6] To the extent that the plaintiff argues that the conduct of Alexandre’s cross-examination was improper, I disagree. I was referred to pages 10 to 12 of the transcript in support of this submission. The lawyer conducting the cross-examination asked questions concerning the identity of the persons in the examining room with Alexandre prior to the commencement of the examination. The questions were not improper. The order of Master Short addressed the persons who may be present for the cross-examinations.

[7] Appreciating that an interpreter is required for the re-attendance, a reasonable time limit for the re-attendance is one and a half hours, excluding breaks.

[8] With respect to the issue of costs, Viola was successful on the motion and is entitled to some costs of the motion. There is no conduct that warrants costs on a substantial indemnity basis. Viola did not deliver a factum or book of authorities and relied in part on the case law filed by the responding parties in addition to one case that Viola “walked in”. Although responding counsel objected, I allowed the case to be referred to on the motion. Responding counsel confirmed that she was prepared to proceed. It would have been preferable for the case law in support of the motion to be provided in advance of the morning of the motion.

[9] Although Viola delivered an offer to settle, the offer did not represent a compromise. The re-attendance sought was ordered but is time limited.

[10] Having regard to all of the circumstances of this motion the all-inclusive sum of $1,500.00 is a fair and reasonable amount that the responding parties could expect to pay for costs in all of the circumstances.

Order

[11] Order to go as follows:

1. Alexandre shall re-attend on her cross-examination to answer the nine questions listed in the letter of June 19, 2018, at exhibit D to the affidavit of Cheryl Ho and any proper and relevant questions arising therefrom, on the terms and conditions set forth in the order of Master Short dated September 1, 2017, limited to one and a half hours, excluding breaks.
2. Costs of the motion are fixed in the all-inclusive sum of $1,500.00 payable by the responding parties to Viola within 30 days.

Master B. McAfee Date: September 19, 2018