Court File and Parties
Court File No.: 831/14 Date: 2019 05 07 Superior Court of Justice - Ontario
Re: Leroy Burr and Joan Callister, Plaintiffs And: Tecumseh Products of Canada, Limited, Tecumseh Products Company and Venmar Ventilation Inc., Defendants
Before: Justice G.D. Lemon
Counsel: E. Kerson, Counsel for the Plaintiffs J. Henderson, Counsel for the Defendants, Tecumseh Products of Canada, Limited, and Tecumseh Products Company No one appearing for Defendant, Venmar Ventilation Inc.
Heard: April 30, 2019
Endorsement
The Issue
[1] The plaintiffs seek an order that the Tecumseh defendants are in contempt. I will refer to the two defendants in the singular. If there is such a finding, they seek an order that Tecumseh may purge its contempt by producing a representative to attend and be examined for discovery, at Tecumseh’s cost, within 30 days of this order.
[2] Although the plaintiffs’ notice of motion sought an order that Tecumseh’s defence be struck, that request was withdrawn at the outset of argument.
[3] Although Tecumseh was served only through counsel, no issue was made with respect to service.
[4] At the outset, other orders were made on consent. Those are as follows:
- A representative of the defendant, Venmar Ventilation Inc. shall attend and be examined for discovery, within thirty (30) days of the date of this order; and
- The defendant, Venmar Ventilation Inc., shall pay costs to the plaintiffs of this motion in the amount of $250.
- The parties will complete the remaining steps in the action in accordance with the following timetable: (a) The parties will complete examinations for discovery by May 31, 2019; (b) The parties will serve responses to undertakings given at all examinations for discovery by July 31, 2019; (c) The parties will complete any examinations arising from undertakings by September 30, 2019; (d) The parties will bring motions arising from undertakings, if any, by November 30, 2019; and (e) The plaintiffs will set the action down for trial by April 30, 2020.
- The parties may amend any of the deadlines set out in paragraph 3 on consent, with the exception of the deadline to set the action down for trial, which may only be amended by further order of this Court.
[5] With respect to paragraph 3(c), the parties agree that the consent only relates to the timetable as set out for those examinations. This is without prejudice to any arguments as to entitlement to such further examinations.
Background
[6] There was a fire at the plaintiffs’ residence in November of 2012.
[7] The plaintiffs commenced the action in October of 2014. Tecumseh served a statement of defence in August of 2015. The Venmar defendants filed a statement of defence and cross claim in October of 2015.
[8] The plaintiffs were examined for discovery on August 30, 2016.
[9] Two third parties, Sensata Technologies and Terry Rowley, were added to the action over 2016 and 2017. Accordingly, any further examinations needed to be co-ordinated between four parties. It is not disputed that this issue is similar to some 15 other actions. Sensata and Tecumseh appear to be the common defendants in these actions. To date, Tecumseh has had one particular representative, Mr. Goldin, appear for them. He is 75 and is the remaining staff member personally familiar with the issues.
[10] On June 27, 2018, the plaintiffs served a notice of examination on Tecumseh, requiring a representative of Tecumseh to attend for discovery on August 2, 2018; that date was agreed to by all parties.
[11] On July 27, 2018, counsel for Tecumseh was advised by counsel for Sensata that the August 2, 2018 examination for discovery would “have to be rescheduled.” Apparently, no reason for this position was provided or requested.
[12] Because counsel for Tecumseh did not wish to produce his representative twice in the same action, the August 2, 2018 examinations of Mr. Goldin were cancelled by counsel for Tecumseh.
[13] On August 1, 2018, five days after receiving correspondence from counsel for Sensata, and the day before the examinations of Mr. Goldin, counsel for Tecumseh advised counsel for the plaintiffs that the examination would not be proceeding.
[14] The plaintiffs did not agree with that cancellation. They obtained a certificate of non-attendance. They moved for an order and obtained a consent order from Justice Barnes J. on October 30, 2018. This order held:
(i) THIS COURT ORDERS that a representative of the Defendants, Tecumseh Products of Canada Limited and Tecumseh Products Company, shall attend and be examined for discovery on November 27, 2018, or on such other date as agreed to by counsel for the parties.
[15] The examination for discovery of Tecumseh was subsequently agreed to take place on February 4, 2019. To confirm that date, the plaintiffs served a notice of examination on November 27, 2018.
[16] Mr. Goldin was diagnosed with prostate cancer on Thursday, January 31, 2019, and unable to attend his scheduled February 4, 2019 examination.
[17] On January 31, 2019, four days before the scheduled examination for discovery, counsel for Tecumseh wrote to advise that Mr. Goldin would not attend. He advised that Mr. Goldin was no longer available as “he is dealing with medical issues.”
[18] The plaintiffs say that no information with respect to the nature of the alleged medical issues was provided until later and is insufficient. Further, the plaintiffs complain that no information was provided as to why no other representative of Tecumseh could be produced or examined instead.
[19] On February 7, 2019, the plaintiffs’ counsel wrote to ask if another deponent could be produced, and if they were not aware of the information, then Mr. Goldin would be produced at a second set of examinations.
[20] On February 16, 2019, Tecumseh’s counsel wrote:
I don’t believe there is anyone else at Tecumseh who has knowledge of the issues that we can produce. Many people have died or retired (given that we are talking about things from 20-30 years ago) . . .
[21] On April 9, 2019, counsel for Tecumseh proposed that:
“We schedule Morry Goldin, Fasco Rep, for August 2019. With the hope that his cancer treatment will be finished before then. As I said before, if you want to examine someone without knowledge of the incident to meet the timetable, let me know and we can probably try to accommodate that too.”
[22] On April 11, 2019, counsel for Tecumseh proposed
(i) That Morry Goldin’s examination be scheduled for a date after his cancer treatment and hernia surgery are completed (such as August 2019) (ii) That a different representative from Fasco be produced at a date of your choosing. That representative won’t know nearly as much as Mr. Goldin, given that the alleged negligence took place from 1983 to 1999 and there are virtually no active employers [sic] with direct knowledge of the incident. (iii) That Morry Goldin’s past examinations for discoveries in previous cases be provided in the meantime, if you would like meaningful answers (assuming [Counsel for Venmar] waives the deemed undertaking rule).
Authorities
[23] In 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951, van Rensburg J.A. said:
[20] A party seeking to establish civil contempt must prove that: (a) the order alleged to have been breached states clearly and unequivocally what should and should not have been done; (b) the party alleged to have breached the order had actual knowledge of it; and (c) the party allegedly in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels. A judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order. The burden on a party seeking a contempt order is to establish the above elements by proof beyond a reasonable doubt. [Citations removed].
Analysis
[24] Barnes J.’s order required the Tecumseh defendants to “attend and be examined for discovery on November 27, 2018 or on such other date as agreed to by counsel for the parties.” On its own, I agree with the defendants that a failure to comply with this term might have been excused because the order was not clear. However, the parties agreed upon a new date. A notice of examination was served. In such circumstances, I find that the order was clear.
[25] There is no dispute that the defendants were aware and had knowledge of the order.
[26] The only real issue between the parties is whether Tecumseh’s failure to attend was intentional. As set out above, that intention must be proven beyond a reasonable doubt.
[27] Tecumseh takes the position that it is inappropriate to find them in contempt of Court simply because their 75 year old deponent was diagnosed with cancer and temporarily prevented from attending the scheduled examination for discovery.
[28] Although the plaintiffs’ factum makes the submission that the medical records are insufficient to show Mr. Goldin’s health difficulties, by the end of oral argument, plaintiffs’ counsel could not seriously dispute the medical difficulties of Mr. Goldin. I find, on these materials, that Mr. Goldin had such medical difficulties. On that basis, I cannot find beyond a reasonable doubt that he or Tecumseh intentionally ignored the order.
[29] However, the plaintiff also submits that “a representative of a corporation who is being examined for discovery has an obligation to prepare himself or herself to answer questions that could reasonably be expected to be asked.” Neither I nor the defendants dispute that submission. However, to demand such preparation within 4 days (two of which were weekend days) of the proposed date is unreasonable. Producing an unprepared witness on short notice could well invite the same contempt motion if done intentionally.
[30] I agree with the plaintiffs that the email messages from defendants’ counsel could well be taken to suggest that the defendants might choose to produce an unprepared witness; that happens. However, I also accept the defendants’ submission that such was not their intention. In argument, Tecumseh’s counsel confirmed that if Mr. Goldin is not available, they will produce a properly prepared and up to speed representative of the defendants. Given that clarification, the efforts made by the defendants to respond to the outstanding order were reasonable.
[31] I certainly understand the plaintiffs’ frustration over the speed of this litigation; however, I am not asked to find which party has caused the delays to this point. I am only to determine if Tecumseh is in contempt of the order of Barnes J. On this material, I cannot find, beyond a reasonable doubt, that the defendants intentionally breached the order of Barnes J.
Result
[32] Accordingly, the plaintiffs’ motion for a finding of contempt against Tecumseh is dismissed.
Costs
[33] Counsel agreed that the unsuccessful party would be required to pay costs in the amount of $7,000. I therefore order the plaintiffs to pay costs to the Tecumseh defendants jointly, fixed in the total amount of $7,000.