Court File and Parties

COURT FILE NO.: CV-16-566487

DATE: 2018-09-10

SUPERIOR COURT OF JUSTICE – ONTARIO

MASTER JOLLEY:

Action: Nguyen v. Tran

Court File Number: CV-16-566487

Motion heard: 10 September 2018

Counsel: G. Weedon, counsel for the moving party plaintiffs R. Swaine, counsel for the responding party defendant

Endorsement

The plaintiffs bring this motion for an order to compel the defendant to re-attend at his examination for discovery and to answer questions refused about a tape recording of a conversation in which he was admittedly involved and questions refused on a transcription and translation of the content of that recording.

The defendant objects to answering and to re-attending on three bases. First, he argues that the conversation in question is privileged. Second, he argues that the transcription and translation of the tape recordings as presented to him at his examination were not admissible. Third, he did not agree to re-attend if and when the plaintiffs obtained properly admissible transcripts and translations.

On the issue of privilege, a claim of privilege does not give rise to a blanket right to refuse to answer all questions about a document or a conversation. On the evidence before me, there is insufficient evidence to support a conclusion that the conversation was privileged or that all questions about the conversation and the documents should be barred as a result. A party opposite is entitled some leeway to test the claim for privilege. This is particularly so on an examination for discovery, as an objection to admissibility based on a claim for privilege is a matter for the trial judge.

The second point conflates the issue of relevance with admissibility at trial. A party is entitled to question the other side on both its and the other side’s productions so that the parties can make full argument at trial on whether the evidence is admissible. In any event, I am advised that the plaintiffs have gone out and obtained a certified translation with a declaration from the translator and have provided that to the defendant.

On the third point, while defendant’s counsel may not have agreed to a re-attendance, I find on the transcript that it was reasonable for plaintiffs’ counsel to believe that there was an agreement that the issue of the recorded conversation would be revisited – either at a further examination or through written discovery – once the plaintiffs had obtained a transcript and a translation that overcame the defendant’s objections.

I find this is an appropriate case for the defendant to re-attend his examination for discovery and to answer the refused questions about the recording and the translation and transcription of that recording and any proper questions arising therefrom. By doing so the defendant does not waive his right to object at trial to this evidence or to the document on the basis of admissibility or privilege.

I leave this endorsement with a reference to Rule 1.04 which guides the court and counsel to construe the rules to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. I find that the proposal by the plaintiffs to adjourn their examination for discovery of the defendant until they obtained transcriptions and translations of the recording that satisfied the defendant to have been an attempt to honour this Rule and should have been followed.

Cost of the motion to the plaintiffs payable by the defendant in the all-inclusive amount of $4,000 within 30 days. I find the amount to be reasonable in light of the materials involved and the costs outlines submitted by each party.

Master Jolley

Date: 10 September 2018