Court File and Parties

COURT FILE NO.: CV-18-00595241 MOTION HEARD: 20181203 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Danute Stankeviciene, Plaintiff AND: Martynas Jonusaitis, Defendant

BEFORE: Master B. McAfee

COUNSEL: N. Lombardi and A. Smith, Counsel for the Plaintiff E. Rogers, Counsel for the Defendant

HEARD: December 3, 2018

Reasons for Decision

[1] This is a motion brought by the plaintiff for various relief. The relief pursued on the return of the motion was an order that the plaintiff be examined for discovery by video conference, an order granting leave to examine the defendant before trial and an order assigning the proceeding to case management.

Examination for discovery of the plaintiff by video conference

[2] The evidence before me concerning the plaintiff’s official status in Canada is that the plaintiff entered Canada on December 11, 2017, obtaining a visitor’s visa. Upon entry into Canada, the plaintiff advised that she was coming to Canada to visit the defendant. The visa expired on June 11, 2018.

[3] In or about June 2018, the plaintiff applied for a temporary residence permit (TRP) which she later withdrew following an interview with an immigration officer. The plaintiff’s evidence is that she also applied for a temporary residence visa (TRV). It is the plaintiff’s evidence that she has implied status in Canada while her application for a TRV is being considered.

[4] At this time the plaintiff wishes to return to Lithuania where her husband of 38 years and her two adult children reside. On the motion, plaintiff’s counsel advised that the plaintiff has a ticket to return to Lithuania on December 8, 2018. Defendant’s counsel did not advise that he was prepared to conduct the examination before December 8, 2018.

[5] The plaintiff’s evidence is that she does not have her support system in Canada and she struggles to communicate on a daily basis due to language barriers. She has no material income and very few assets, which are of modest value.

[6] The plaintiff’s visitor’s visa has expired. There has been no determination of the application for a TRV. The plaintiff wishes to return to her family in Lithuania at this time. I was not referred to evidence on behalf of the defendant that the examination for discovery of the plaintiff by video conference would be unjust or inconvenient. In these circumstances, I am satisfied that it is just that the plaintiff be permitted to be examined for discovery by video conference from Lithuania.

[7] The costs of the video conferencing facilities in Lithuania and Toronto, including any rental and reporter fees, shall be borne by the plaintiff at first instance. The issue of these costs may be re-visited by the trial Judge or the Judge disposing of the proceeding, subject to the Judge’s discretion.

Leave to examine the defendant pursuant to Rule 36

[8] I am satisfied that it is just that leave be granted to examine the defendant pursuant to Rule 36 because of the age of the defendant. The defendant is 91 years of age, turning 92 years of age next week. I was not referred to evidence of prejudice on the part of the defendant if such an order was made.

[9] On the motion the parties advised that they have agreed that examinations for discovery take place in February 2019. The plaintiff wishes to proceed with a Rule 36 examination of the defendant after the examinations for discovery. The Rule 36 examination of the defendant shall take place after the examinations for discovery have been conducted, on a date, time and place to be agreed upon.

[10] If at the time of trial the defendant is able to attend to give evidence at trial, the defendant shall do so, subject to the discretion of the trial Judge.

[11] The costs of the reporting facilities, reporter fees and transcript for the Rule 36 examination shall be borne by the plaintiff at first instance. The issue of these costs may be re-visited by the trial Judge or the Judge disposing of the proceeding, subject to the Judge’s discretion. The issue of lawyers’ fees and any other costs arising from the Rule 36 examination is reserved to the trial Judge or Judge disposing of the proceeding, subject to the Judge’s discretion.

Assignment to case management

[12] The defendant does not take a position on the relief in this regard but does submit that the criteria for assignment to case management has not been met.

[13] Having regard to all of the relevant circumstances including the serious nature of the allegations made in this action, none of which have been proven at this point, the advanced age of the defendant, the fact that the plaintiff is returning to Lithuania at this time and the manner in which this litigation has been conducted to date, I am satisfied that it is reasonable to assign the proceeding to case management. The proceeding shall be case managed by me. However, the parties shall have regard for Rule 77.01(2)1. The parties shall cooperate and make all reasonable attempts to resolve the issues that arise before requesting court intervention.

Costs

[14] With respect to costs of the motion, although the plaintiff was successful in obtaining the contested relief sought, I award no costs of the motion to the plaintiff. I am satisfied that the defendant is entitled to some costs of the motion and I fix those costs in the all-inclusive sum of $1,000.00, payable within 30 days. The plaintiff did not make sufficient efforts to resolve matters prior to bringing the motion or after the motion was brought (see for example Exhibits “Y” and “CC” to the affidavit of N. Williams dated November 7, 2018). The plaintiff only advised the defendant on the return of the motion that the plaintiff had a ticket to return to Lithuania departing on December 8, 2018. The plaintiff had not yet served an affidavit of documents when she moved for an order requiring the defendant to serve an affidavit of documents. The defendant agreed to serve an affidavit of documents by November 30, 2018, which agreement was complied with.

[15] Order to go as follows:

1. The examination for discovery of the plaintiff shall take place by way of video conference. The costs of the video conferencing facilities in Lithuania and Toronto, including any rental and reporter fees, shall be borne by the plaintiff at first instance. The issue of these costs may be re-visited by the trial Judge or the Judge disposing of the action, subject to the Judge’s discretion.
2. Leave is granted to the plaintiff to conduct an examination of the defendant pursuant to Rule 36. The Rule 36 examination shall take place after the examinations for discovery have been conducted, on a date, time and place to be agreed upon. The costs of the reporting facilities, reporter fees and transcript for the Rule 36 examination shall be borne by the plaintiff at first instance. The issue of these costs may be re-visited by the trial Judge or the Judge disposing of the action, at the Judge’s discretion. The issue of lawyers’ fees and any other costs arising from the Rule 36 examination is reserved to the trial Judge or Judge disposing of the proceeding, subject to the Judge’s discretion. If, at the time of trial, the defendant is able to attend to give evidence at trial, the defendant shall do so, subject to the discretion of the trial Judge.
3. This proceeding is assigned to case management and shall be case managed by me.
4. Costs of the motion are fixed in the all-inclusive sum of $1,000.00 payable by the plaintiff to the defendant within 30 days.

Master B. McAfee Date: December 5, 2018