COURT FILE NO.: CV-17-24927
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Adele Boutros
Plaintiff
(Defendant by Counterclaim)
– and –
Danny Summer
Defendant
(Plaintiff by Counterclaim)
Dina D’Andrea, for the Plaintiff (Defendant by Counterclaim)
R. Craig Stevenson, Esq., for the Defendant (Plaintiff by Counterclaim)
HEARD: December 19, 2017
REASONS ON MOTION
King J.:
INTRODUCTION
[1] This is a motion by Danny Summer (“Mr. Summer”), the defendant (plaintiff by counterclaim) to compel the plaintiff (defendant by counterclaim), Adele Boutros (“Ms. Boutros”), to attend on an examination for discovery while he is present to observe.
[2] The issue to be determined is whether Mr. Summer has the right to be present in the circumstances of this matter.
BACKGROUND
[3] On April 21, 2017, Ms. Boutros commenced this action against Mr. Summer, her son, seeking a declaration that she is the sole, legal and beneficial owner of a residence known municipally as 1090 Lillian Avenue in Windsor, Ontario. She also sought damages in the amount of $38,209.66. The claim alleges fraud, misallocation of funds, and wrongful conversion of monies contstituting a breach of trust and fiduciary duties. Ms. Boutros is 83 years old. English is not her first language.
[4] Her claim is two-fold in nature. She has alleged that Mr. Summer misappropriated the sum of $38,209.66 from a bank account that she held with him jointly.
[5] Secondly, Ms. Boutros claims sole ownership of the residence at 1090 Lillian on the basis that she purchased a two-third interest in the house with her daughter, Amal Boutros (“Amal”), that her interest was held in trust by Mr. Summer, and he now refuses to transfer title to her.
[6] Significantly, Ms. Boutros has alleged that Mr. Summer breached his fiduciary duty to her and misallocated her funds through deception and fraud. He did so by abusing her trust and taking advantage of her illiteracy and advanced age.
[7] Mr. Summer has denied the allegations. He asserts that the monies claimed were paid to him for significant services he rendered to his mother, and to reimburse him for funds he spent on her behalf to purchase a share of 1090 Lillian for $37,036.80.
[8] Mr. Boutros has claimed that he paid his sister Amal the sum of $32,000 and retained full title in the house in exchange for Ms. Boutros being permitted to reside in the property for as long as she was physically able to do so.
EXAMINATION FOR DISCOVERY
[9] The examinations for discovery in this matter were scheduled for October 25, 2017. Ms. Boutros was scheduled for the morning and Mr. Summer for the afternoon.
[10] At the outset of Ms. Boutros’ examination, Mr. Summer appeared with his counsel to observe the examination of his mother. There was no previous notice that this would be occurring.
[11] The affidavit of Therese Kwok, another daughter of Ms. Boutros and sister of Mr. Summer, states that Ms. Boutros became tearful and anxious given the presence of Mr. Summer. She refused to be questioned with Mr. Summer present. The discovery was cancelled that day.
[12] Ms. Boutros is fearful that if Mr. Summer is allowed to be present when she is being questioned on discovery that she will be intimidated, thereby compromising her evidence on discovery.
MOTION
Position of the Moving Party
[13] Mr. Summer seeks an order that Ms. Boutros attend at discovery and that he be permitted to attend.
[14] As he is a party to the action, he has an inherent right to be present as set out in Baywood Paper Products Ltd. v. Paymaster Cheque-Writers (Canada) Ltd.[^1]
[15] There is no intention to intimidate Ms. Boutros, or be disruptive. Mr. Summers is entitled to hear her evidence to assess her explanation in his words “as to why she thinks she is entitled to the entire property.”
[16] His counsel takes the position that there must be evidence of intimidation. Since there is no objective evidence of intimidation in this case, counsel asserts that Mr. Summer’s inherent right to be present is not lost simply because Ms. Boutros states that she will be intimidated.
Position of the Respondent
[17] Also relying on the Baywood case, Ms. Boutros emphasizes that while a party may have a right at common law to be present during the examination of discovery of the other party, the court has a broad discretion to exclude a party from the examination for cause to secure the ends of justice on a case-by-case basis.[^2] In particular, counsel relies on the following passage from Baywood setting out the exception to the general principle as follows at p. 239 [cited to O.R.]:
As in any situation where a judicial officer is empowered to exercise a discretion, it must be exercised upon proper legal principles. What may require the exclusion of a party on the ground that it is necessary to do so to secure the ends of justice depends on the particular situation. Thus, a party cannot be excluded from the examination for discovery of the opposite party except for cause. What may constitute cause depends on the circumstances in each case.
[18] While the onus rests, in this instance, on Ms. Boutros, the onus of showing cause for exclusion is less stringent than at trial and the benefit of the doubt should be in favour of the party seeking exclusion because the court stated:
Unless there is a possibility of injustice from an exclusion, the injustice from a refusal to exclude may be substantial.[^3]
[19] The factors to consider were succinctly set out in Besner v. Her Majesty the Queen in Right of Ontario, where Master P. Roger considered, inter alia:
whether a party is likely to be intimidated;
whether the proceedings are likely to be disturbed or disrupted;
whether there would be prejudice to the excluded party; and
generally whether the ends of justice require the exclusion.[^4]
ANALYSIS
[20] I will review these factors in the context of this matter.
1) Whether a party is likely to be intimidated?
[21] I find that there is a strong possibility that Ms. Boutros will be intimidated if she is required to be examined on discovery with Mr. Summer present. She is an 83-year-old immigrant woman claiming that her son has committed a breach of trust and, in doing so, depleted her savings and appropriated her residence.
[22] In and of itself, this is an exceptional circumstance. In Mr. Summer’s factum he states that he wants to be “present so that he can hear Adele’s explanation as to why she thinks she is entitled to the entire property”. There is an inherent threat in this very statement by his wanting her to explain her claim in the presence of the very person she is claiming has defrauded her. A discovery is not for the purpose of “hearing” the other party. It is to learn the details of the case to be met, and, in many instances, obtain admissions on various issues that can be utilized at trial.
[23] Whether or not Mr. Summer is physically present at the discovery is not fundamental to his learning why Ms. Boutros thinks she is entitled to the property. Mr. Summer will easily and adequately be able to accomplish this objective by speaking with his counsel and/or reading the transcript.
2) Whether the proceedings are likely to be disturbed or disrupted?
[24] I find this is almost certain to occur. There is affidavit evidence of Ms. Boutros’ daughter, Therese Kwok, as to how Ms. Boutros reacted to the unannounced arrival of Mr. Summer at the first examination on October 25, 2017. This evidence is not contradicted. Furthermore, in the circumstances of this case, it is understandable that she would find the presence of Mr. Summer intimidating and, given the age and background of Ms. Boutros and the dynamics of the relationship between the two parties. For this reason, I find the discovery will be disrupted.
[25] In reaching this conclusion, I have not given any weight to the letter from Dr. Ziter dated December 7, 2017. The letter simply states that Ms. Boutros should not be exposed to stressful situations for medical reasons. However, the letter is lacking a medical diagnosis and the specific medical information the physician relied on to reach this conclusion. Furthermore, simply attending a discovery is generally stressful but there is no suggestion that she cannot be discovered.
[26] Notwithstanding the insufficiency of the medical note in these circumstances, I am still convinced that the next examination will be disrupted if Mr. Summer is not excluded.
3) Whether there would be prejudice to the excluded party
[27] I am not persuaded in the least that Mr. Summer would be prejudiced should he be excluded from the discovery of Ms. Boutros.
[28] In this regard, I am guided by the analysis of the Ontario Divisional Court in Lazar v. TD General Insurance Company, where Spies J., writing for the court stated the following:
Mr. Yellin submitted that the Respondents have the right to be present in order to gauge their own counsel and opposing counsel, instruct counsel on the facts and evaluate the reliability and credibility of the other Respondent when giving evidence (an important factor for the purpose of settlement discussions). In my view, these concerns are overstated. The rules provide that a party may supplement or correct answers given on discovery and each co-party will be able to gauge counsel on their own discovery. As for the reliability and credibility of the other Respondent, counsel is in the best position to give impartial advice on that issue.
In my view, any prejudice to the Respondents is addressed by the fact that they are able to discuss any of the matters relating to the case in advance of the examinations for discovery and instruct counsel accordingly. Furthermore, they will be able to read the examination for discovery of the other party prior to trial and of course be present for the evidence of the other party at trial.[^5]
This is not a factually or legally complex case. Any information Mr. Summer’s counsel will require to adequately conduct the discovery can readily be conveyed to him before the discovery. Furthermore, should any answer or further information be required by counsel during the discovery, he can easily ask for a short adjournment to consult with his client via telephone in this regard.
4) Whether the ends of justice require the exclusion
[29] While I can foresee significant prejudice to the plaintiff if the defendant is present at the discovery, I find there is no basis to conclude that Mr. Summer will be prejudiced with respect to the litigation because he was not permitted to attend the discovery.
CONCLUSION
[30] For these reasons, I find that Mr. Boutros has established cause for the exclusion of the defendant, Mr. Summer, from the discovery of the plaintiffs.
[31] The ends of justice require that Mr. Summer not be permitted to be in attendance during the discovery of Ms. Boutros.
ORDER
[32] The motion that Mr. Summer be present during the course of the examination for discovery with respect to this matter is dismissed. The discovery of Ms. Boutros is to occur without Mr. Summer being present.
COSTS
[33] In the circumstance of this motion, it is appropriate that costs be awarded to the plaintiff, Ms. Boutros.
[34] In the event that the parties are not able to agree on reasonable costs on this motion within 30 days, then costs submissions shall be in writing on the following basis:
The plaintiff’s counsel shall serve costs submissions and a “Cost Outline” as provided for in r. 57.01(6) (using Form 57(b)) upon the defendant’s counsel within thirty (30) days of this decision. Such written argument shall be no more than three (3) pages in length. In the event that the foregoing is not complied with within that time period, the plaintiff shall be deemed to have waived her right to do so.
The defendant’s counsel shall have a further ten (10) days to provide a response to counsel for the plaintiff. Such response is to be no more than three (3) pages in length. In the event that the foregoing is not complied with within that time period, the defendant shall be deemed to have waived his right to do so.
Counsel for the plaintiff shall have five (5) further days to provide a reply to counsel for the defendant. Such reply is to be no more than one (1) page in length. In the event that the foregoing is not completed within that time period, the plaintiff shall be deemed to have waived her right to do so.
[35] Once all of those steps have been completed, counsel for the plaintiff shall provide all the submissions to the court through trial coordination.
Original signed by Justice George W. King
George W. King
Justice
Released: February 1, 2018
COURT FILE NO.: CV-17-24927
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Adele Boutros
Plaintiff
(Defendant by Counterclaim)
– and –
Danny Summer
Defendant
(Plaintiff by Counterclaim)
REASONS on motion
King J.
Released: February 1, 2018
[^1]: 1986 CanLII 2699, 57 O.R. (2d) 229 (S.C.) [Baywood], citing Sissons et al. v. Olson (1951), 1951 CanLII 480 (BC CA), 1 W.W.R. (N.S.) 507 (B.C. C.A).
[^2]: Baywood, ibid, at p. 239.
[^3]: Lipischak v. DeWolf, [2008] O.J. No. 4918 (S.C.), at para. 38.
[^4]: 2011 ONSC 7335, at para. 24.
[^5]: 2017 ONSC 1242, at paras. 54 and 55.