Court File and Parties
Court File No.: CV-15-00538553 Motion Heard: 20190228 Superior Court of Justice - Ontario
Re: Glenda Meade, Plaintiff and Defendant to the Counterclaim And: Alexander Chartchenko, Defendant and Plaintiff by Counterclaim
Before: Master B. McAfee
Counsel: O. Brusentsova, Counsel for the Moving Party, the Defendant, Plaintiff by Counterclaim G. Meade, In Person, Plaintiff and Defendant to the Counterclaim
Heard: February 28, 2019
Reasons for Decision
Nature of the Motions
1There are two motions before me. The defendant, plaintiff by counterclaim Alexander Chartchenko (the defendant) brings a first motion for an order compelling the plaintiff, defendant to the counterclaim Glenda Meade (the plaintiff) to re-attend to complete her oral examination for discovery (discovery motion) and brings a second motion for an order for security for costs (security for costs motion). The defendant confirmed that the relief set out at paragraph (a) of the notice of motion in the discovery motion, being a dismissal of the action, was no longer being pursued.
2The plaintiff opposes both motions.
3The parties confirmed that there were no preliminary issues to be addressed. No further adjournment was sought.
Nature of the Action
4This action was commenced on October 16, 2015. The plaintiff alleges that she entered into an agreement to purchase real property owned by the defendant. The plaintiff alleges that she spent approximately $40,000.00 renovating the property in question. The plaintiff claims an order for specific performance and other relief.
5The defendant denies any agreement to purchase the property and alleges that any renovations carried out by the plaintiff, which are not admitted, were carried out without the defendant’s approval. The defendant counterclaims for $100,000 and an accounting.
Motion No. 1 - Re-Attendance on Oral Examination for Discovery
6The examination for discovery of the plaintiff commenced on August 30, 2017. According to the transcript, the plaintiff was distraught and upset. Also according to the transcript, it was agreed that the examination for discovery would be adjourned to another day when the plaintiff was feeling better.
7Defendant’s counsel subsequently requested dates from the plaintiff for the completion of the plaintiff’s oral examination for discovery. The plaintiff then refused to re-attend on an oral examination for discovery. It is the plaintiff’s position that inappropriate and irrelevant questioning during the examination for discovery caused her emotional upset. The plaintiff wishes her continued examination for discovery to be conducted in writing.
8Rule 31.02(1) of the Rules of Civil Procedure provides:
31.02(1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court.
9As stated by Master MacLeod, as he then was, in Ozerdinc Family Trust v. Gowling Lafleur Henderson LLP, [2015] O.J. No. 1873 (Ont. S.C.J. – Master) at para. 23, “…Rule 31.02 remains the governing rule. It provides a presumptive right to each party to conduct oral discovery and it will require compelling evidence to move the court to restrict that right.
10In Ozerdinc at para. 26 the view of Master Muir in Mohanadh v. Thillainathan, 2010 ONSC 2678 (Ont. S.C.J. – Master) was adopted where Master Muir “…concludes that the court may excuse a party from oral discovery where the medical evidence clearly shows a real potential that the party to be examined will suffer harm as a result of the procedure and where there is a reasonable alternative available.”
11In Ozerdinc reference is made at para. 24 to Ferrara v. Roman Catholic Episcopal Corp. for the Diocese of Toronto in Canada, [1996] O.J. No. 2164 (Ont. Gen.Div.) where the court held that it was insufficient that discovery was upsetting or stressful.
12I have reviewed the transcript. It is understandable that certain questions concerning the incident that took place in Nicaragua would have caused emotional upset. However, the plaintiff has made reference to the incident in her statement of claim at paragraph 26. Although relevance is determined based on the pleadings, this does not mean that any and all questions concerning the incident would be relevant.
13I also appreciate that certain questions asked were more relevant to a motion for security for costs than relevant to the matters at issue in the action.
14However, I am of the view that the examination did not amount to abuse in these circumstances.
15I have also considered the medical report of Dr. Margittai, Assistant Professor of Psychiatry at the University of Toronto, appended to the responding affidavit. Although Dr. Margittai is not qualified to comment on the appropriate line of questioning on an examination for discovery, Dr. Margittai does state that following the discovery, the plaintiff relapsed into acute PTSD. Dr. Margittai also indicates that she is alarmed by the plaintiff’s symptoms as set out at page 3 of her report.
16After hearing the submissions of the parties I asked for submissions concerning the completion of the plaintiff’s examination for discovery by way of video conference. The plaintiff indicated that she would be agreeable to completing her examination for discovery by video conference. The defendant advised that the defendant was not agreeable to an oral examination for discovery by video conference.
17In my view, having regard to all of the circumstances set out above, an oral examination for discovery by video conference is a reasonable manner of proceeding to complete the plaintiff’s oral examination. The plaintiff does not have an issue proceeding in this manner. Given the report of Dr. Margittai and the relapse and additional symptoms following the initial attendance on examination for discovery, as the plaintiff has no concerns proceeding in this manner and the defendant would have the oral examination the defendant is entitled to, this would be a just and reasonable manner of proceeding.
18Accordingly, the continuation and completion of the plaintiff’s examination shall be conducted orally by video conference on certain terms. At this time, the parties shall share the cost of the video conference equally. The initial sharing of the cost is subject to adjustment by the trial Judge, in the discretion of the trial Judge. If the plaintiff objects to a question, the plaintiff shall briefly state the basis for the objection and defendant’s counsel shall move on to the next question. A motion may be necessary to determine whether questions were properly objected to. In addition, as proposed by defendant’s counsel at para. 17 of his affidavit sworn March 14, 2018, the examination shall be recorded by videotape or similar means. The parties shall initially share the cost of the recording, subject to adjustment by the trial Judge, in the discretion of the trial Judge.
Motion No. 2 – Security for Costs
19The motion for security for costs was served providing the minimum notice under the Rules. The initial return date for the motion for security for costs was January 23, 2019, to be heard together with the discovery motion. The plaintiff did not attend the motions on January 23, 2019. The plaintiff contacted defendant’s counsel on January 21, 2019, and advised that due to circumstances beyond her control, she was unable to attend on January 23, 2019, but could attend any time in February 2019. Over the objection of defendant’s counsel, I adjourned both motions to February 28, 2019. In my endorsement of January 23, 2019, I stated,
The plaintiff has not delivered any material in response to the second motion which is a motion for security for costs. Should the plaintiff wish to oppose this motion, she will need to comply with the Rules and serve and file any responding material in advance of the motion in accordance with the Rules.
20The plaintiff did not deliver responding material with respect to the second motion.
21In support of the defendant’s request for security for costs, the defendant relies on Rule 56.01(1)(a) and (c) of the Rules of Civil Procedure:
56.01(1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(a) the plaintiff or applicant is ordinarily resident outside Ontario;
(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;
22The application of Rule 56.01(1)(a) and (c) involves a two-step analysis. The first step of the analysis requires the moving defendant to establish that it appears the plaintiff is ordinarily resident outside of Ontario or that the defendant has an order against the plaintiff for costs in the same or another proceeding that remain unpaid in whole or in part. The initial onus is a real onus that must be satisfied before moving to the second stage of the analysis. If the defendant discharges his initial onus and establishes that it appears that the plaintiff falls under Rule 56.01(1)(a) or (c), the second step of the analysis requires the plaintiff to establish the basis for a broad flexible exercise of discretion that an order for security for costs would be unjust.
23Based on the evidence before me, I am satisfied that it appears that the plaintiff is ordinarily resident outside Ontario. The website for the plaintiff’s scuba diving business in Cozumel, Mexico states the following about the plaintiff, “Before moving to Cozumel, she enjoyed a successful career in Accounting which took her to numerous exotic locations throughout the world.”
24As I have found that it appears that the plaintiff is ordinarily resident outside of Ontario for the purposes of satisfying the initial onus of the defendant pursuant to Rule 56.01(1)(a), it is not necessary for me to also determine if the order made by the Landlord and Tenant Board was an order for costs in another proceeding within the meaning of Rule 56.01(1)(c). I was not referred to any case law on this issue. On the basis of the record before me, had I been required to make a determination with respect to the initial onus pursuant to Rule 56.01(1)(c), the defendant would not have satisfied his initial onus pursuant to Rule 56.01(1)(c).
25Moving to the second stage of the analysis, the plaintiff has not satisfied me that an order for security for costs would be unjust.
26There is evidence before me that plaintiff is a business owner of a scuba diving business in Cozumel, Mexico. The plaintiff has not set out her present financial circumstances with robust particularity or at all. The evidence in the transcript from the plaintiff’s examination for discovery does not set out the plaintiff’s present financial circumstances.
27There is no evidence before me that an order for security for costs would result in the plaintiff being unable to proceed with her action.
28The merits are a neutral factor on this motion. The record before me is insufficient to make a determination of whether the plaintiff’s action in any respect has a good chance of success. The plaintiff filed no responding material to the security for costs motion. The defendant’s evidence with respect to the merits filed for the security for costs motion is one paragraph in an affidavit of a legal assistant. Even if I was to consider the material filed on the discovery motion including the transcript, I am unable to make such a determination with respect to the merits.
29For these reasons I am not satisfied that an order for security for costs would be unjust.
30Given the timing of this motion, I am not awarding security for any past costs. I am ordering security for costs of the mandatory mediation and beyond only. The security shall be posted in tranches.
31The amount sought by the defendant for security for these future events is high. The costs outline appears to provide an estimate for all costs including those related to the counterclaim. A seven day trial is estimated but there is no reduction for any amount related to the trial of the counterclaim.
32Having regard to all of the circumstances of this matter, a fair and reasonable amount to be posted as security for future costs of the mandatory mediation and beyond is the all-inclusive amount of $15,000.00, payable as follows:
(a) $1,000. payable 30 days prior to mandatory mediation; (b) $1,000. payable 30 days prior to the pre-trial conference; and, (c) $13,000. payable 30 days prior to trial.
Costs of the Motions
33I decline to award costs of the motions, including costs of any prior adjournments, to any party. It was only confirmed that a dismissal of the action was no longer being sought at the return of the discovery motion on February 28, 2019. Although an oral examination for discovery was ordered, it is to be conducted by video conference, which was opposed by the defendant. While security for costs was ordered, the quantum of security was significantly less than the amount of security sought.
34There shall be no costs of the motions.
Summary of Order
35Order to go as follows:
The examination for discovery of the plaintiff shall be completed orally, by way of video conference, on the following terms: (a) the parties shall initially share the cost of the video conference equally, subject to adjustment by the trial Judge, in the discretion of the trial Judge; (b) if the plaintiff objects to a question, the plaintiff shall briefly state the basis for the objection and defendant’s counsel shall move on to the next question; and, (c) the examination shall be recorded by videotape or similar means. The parties shall initially share the cost of the recording equally, subject to adjustment by the trial Judge, in the discretion of the trial Judge.
The plaintiff shall pay into court as security for costs of this action the all-inclusive sum of $15,000.00 payable as follows: (a) $1,000. payable 30 days prior to mandatory mediation; (b) $1,000. payable 30 days prior to the pre-trial conference; and, (c) $13,000. payable 30 days prior to trial.
There shall be no costs of the motions.
Master B. McAfee
Date: March 18, 2019