Court File and Parties

COURT FILE NO.: CV-18-78211 DATE: 20181127 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Applicant -and- CANADIAN BROADCASTING CORPORATION and POST MEDIA NETWORK CANADIAN CORPORATION, Respondents

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Sunil Mathai and Jeffrey Costain for the Applicant Sean Moreman, for the Respondent, CBC Richard Dearden and Hunter Fox, for the Respondent, Post Media

HEARD: November 23, 2018

Endorsement

[1] The Crown seeks to have the Respondents found in civil contempt of court arising from the publication of two impugned articles. That application is scheduled to be heard on December 17 and 18, 2018 and as I am case-managing the matter, I established a timetable for these proceedings.

[2] Cross-examinations occurred on November 22 and 23, 2018. In response to the Application, the Respondent, CBC provided the affidavit of Jennifer Pantin, a legal assistant of the CBC. The Respondent, Post Media provided the affidavit of Anthony D’Agostino, an articling student with Gowlings LLP, the law firm representing Post Media.

[3] On November 23, 2018, I heard a motion with regard to undertakings and refusals arising from those cross-examination. This was done in a summary fashion and I gave oral decisions with respect to some of the refusals but I reserved on a group of questions principally arising from the refusals of Ms. Pantin and Mr. D’Agostino to make inquiries of other persons, namely authors of publications in issue.

[4] The scope of relevance on these cross-examinations is to be determined by the issues to be decided on the Application which are as follows:

1. Was there a clear order?
2. Did the alleged contemnors have actual knowledge of that order?
3. Did the alleged contemnors intend the act that is said to have breached the order?

[5] Both Ms. Pantin and Mr. D’Agostino are “paper trail” affiants. They do not have direct knowledge of the matters in issue.

[6] With regard to Ms. Pantin, two questions were refused. They are questions 10 and 11 of the refusal charts provided; namely to find out if the CBC has a system in place to keep track of publication bans and to inquire of the CBC reporter or authors of their knowledge of the publication bans.

[7] With regard to Mr D’Agostino there are a number of questions that ask him to inquire of others if they were aware of the publication bans; these are similar in nature and these are questions 5, 8, 15, 18, 23, 31, 36, 43 and 47. I will not set the refusals out in detail here.

[8] The Respondents take the position that this is not examination for discovery: that their deponents are fact witnesses; the deponents are not representatives of the Respondents who can compel answers to the questions asked and that the questions asked are not relevant. They submit that the Applicant should have served summoned the witnesses they wished to examine pursuant to Rule 39.03. They cite the heavy evidentiary onus on the part of the Applicant who must establish contempt beyond a reasonable doubt and they cite the dangers of providing incriminating evidence should answers be compelled from the subject authors.

[9] The Applicant notes that section 13 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “Charter”] provides an answer to those concerns and that the corporate Respondents do not enjoy Charter protections. In any event, I need not decide those issues now. The narrow issue before me is whether the Ms. Pantin and Mr. D’Agostino can be asked to give an undertaking to make inquiries of others.

[10] Cross-examinations differ from examinations for discovery as explained by Perrell J. in the Rothmans decision at para. 143:

• The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery.
• A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure.
• The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion.
• The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence.
• If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the court.
• The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion.
• A question asked on a cross-examination for an application or motion must be a fair question.
• The test for relevancy is whether the question has a semblance of relevancy.
• The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent.
• The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information.
• The deponent for a motion or application who deposes on information and belief may be compelled to inform himself or herself about the matters deposed.

[11] The Respondents place particular reliance of paragraph 17 of the decision of Master Champagne (as she then was) in Canada (Attorney General) v. The Canadian Broadcasting Corp, 2016 ONSC 4938:

17 CBC is not entitled to the broad document production to which it would be entitled in an examination for discovery. Since this proceeding was initiated by way of application, the affiant is a fact witness and not a representative of the applicant. This entitles the respondent to cross-examine the witness on her affidavit, but does not entitle the respondent to demand undertakings to the same extent as in the case of examinations for discovery. The scope of cross examination of a deponent on an application is well set out in R. v. Rothmans, which I will turn to later in this decision.

[12] Ultimately, that Court determined the issue on the basis of relevance and decided that the refusal to provide the undertakings was proper. The decision did not turn on the fact that the affiants were fact witnesses.

[13] I am satisfied that these questions are relevant. The knowledge of the authors of the various publications is a central issue in this application. With regard to the questions set out at paras. 6 and 7 herein, these are simple requests and there is no evidence that the information is not readily available or that it is unduly onerous to obtain the information. Ms. Pantin and Mr. D’Agostino must make the inquiries requested. Subject to the responses received, there may be a need for a further motion for leave to examine the persons with knowledge of the matters in issue and I am prepared to hear that motion as soon as this can be arranged.

Mr. Justice Robert N. Beaudoin Date: November 27, 2018