Stratuik v. Corporal Fenner et al., 2019 ONSC 3424

Court File and Parties

COURT FILE NO.: CV-16-70163 DATE: 2019/06/05

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Brittany Alexa Stratuik Plaintiff – and – Corporal Jay-Kyle Fenner, Sergeant Jonathan Letendre and the Attorney General of Canada Defendants

Counsel: Lawrence Alan Greenspon and Tina Hill for the Plaintiff Joël M. Dubois for the Defendant Sergeant Letendre; David Levangie for Corporal Fenner; and Helen Gray for the Defendant the Attorney General of Canada

HEARD in Ottawa: May 23, 2019

Reasons for Decision

O’Bonsawin J.

Background

1The Defendant, Sgt. Letendre, brings a motion for:

• an Order that the Plaintiff, Ms. Stratuik, re-attend for examination for discovery (“examination”) as per the order of examinations previously agreed upon by the parties;
• an Order declaring that Sgt. Letendre may be present during the examination of Ms. Stratuik;
• costs thrown away from the improper cancellation of examinations scheduled for November 13-16, 2018; and
• costs of this motion.

The co-Defendants support this motion.

2Ms. Stratuik also brings a motion for:

• an Order excluding the Defendants from attending her examination;
• an Order excluding each of the Defendants from attending at the examinations of the other Defendants;
• a Direction from the Court regarding the continuation of the examination of Ms. Stratuik;
• costs thrown away for the improper cancellation of the examinations scheduled for November 13-16, 2018; and
• costs of this motion.

3Ms. Stratuik claims that she suffered physical and psychological injuries as a result of an entry by military police at the military housing unit in which she was residing on Canadian Forces Base Petawawa. The military police raided the housing unit during the early morning of April 8, 2016, as a result of an anonymous call that was placed (“incident”).

Findings of Fact

4The following are my findings of fact based on my review of the evidence and having heard submissions from the parties.

5As part of the normal course of their duties as Military Police Officers, Sgt. Letendre and Cpl. Fenner made contemporaneous duty notes and Sgt. Letendre also completed a General Occurrence Report regarding the incident.

6Following the incident, Ms. Stratuik filed a complaint against Cpl. Fenner with the military and a Professional Standards Investigation was conducted pursuant to the Military Police Professional Code of Conduct. National Defence Act, R.S.C. 1985, c. N-5. The investigation determined that Ms. Stratuik’s allegations were not substantiated and provided reasons for this conclusion in a detailed report.

7As part of the investigation, both Cpl. Fenner and Sgt. Letendre were subjected to lengthy interviews regarding the incident. They were audio recorded and summaries were included in the final investigation report.

8In relation to this action, the parties agreed to hold examinations on November 13-16, 2018. They agreed that Ms. Stratuik would be examined first on November 13, and that this examination would continue on November 14, if required. The parties agreed that the Defendants would be examined on November 14-16, in the following order: Sgt. Letendre, Cpl. Fenner and a representative of the Attorney General of Canada.

9On October 18, 2018, counsel for Cpl. Fenner e-mailed all counsel advising:

As you are all well aware, and as I raised on our call when the discoveries were scheduled, I am based in Toronto and flying in for the examinations. I will be booking flights and accommodations in the next week. Everyone therefore needs to understand that the examinations dates cannot be adjourned, unless the party seeking the adjournment covers the non-refundable disbursements my client will incur…

If there are going to be any additional modifications, changes or restrictions, they must be raised now, or resolvable in such a way that my client is not out the non-refundable disbursements.

10At no point during the verbal or written discussions regarding the scheduling of examinations did any of the Defendants’ counsel advise the others that their respective client intended to attend at the examination of Ms. Stratuik and/or the other Defendants. In addition, Ms. Stratuik’s counsel did not advise the Defendants’ counsel that she wanted their clients precluded from attending her client’s examination or of each other. Ms. Stratuik’s counsel advised opposing counsel that her client would attend the examination with a service dog. As an attachment to her email, counsel provided a physician’s note dated March 27, 2018. It must be noted that this note was unsigned and did not list the name of the author. The note reads as follows:

Please be advised that I am a medical doctor, licensed to practice in the province of Ontario, and that I am the family physician for the above-noted patient.

This letter is to confirm that I am recommending that Ms. Stratuik utilize the company of her service dog on a regular basis, as the dog will be trained in tasks to help Alexa with her life struggles. This would include, for example, picking up items that Alexa drops because of her disability and blocking people from standing to[o] close to her in public.

I trust the foregoing information is of assistance to you. If you require anything further, please do not hesitate to contact my office.

The Defendants did not take issue with the attendance of a service dog.

11On November 13, 2018, Sgt. Letendre and his counsel, Cpl. Fenner’s counsel and the litigation team representing the Attorney General of Canada attended the office of Catana Reporting Services at 10:00 a.m. for the purposes of Ms. Stratuik’s examination. Cpl. Fenner was not present between 10:00 a.m. and 11:30 a.m. due to vehicle issues while travelling from Petawawa. However, he was in communication with his counsel and intended to be present for Ms. Stratuik’s examination. Sgt. Letendre and Cpl. Fenner were not in uniform.

12Shortly before the commencement of the examination, Ms. Stratuik’s counsel objected to Sgt. Letendre being present during her client’s examination. It was the first time that counsel advised anyone that Ms. Stratuik did not want the Defendants to be present during her examination. Counsel refused to produce Ms. Stratuik unless the individual Defendants were excluded from the room. This led to the cancellation of the examination.

Issues

13There are two issues to be determined on these motions:

1. Should this court grant the following Orders: an Order excluding the Defendants from attending Ms. Stratuik’s examination and an Order excluding each of the Defendants from attending at the examinations of the other Defendants?
2. Who is responsible for costs thrown away for the cancellation of the examination scheduled for November 13-16, 2018?

Position of the Parties

14Sgt. Letendre argues that he and the Defendants have an inherent right to attend the examination for discovery of a party adverse in interest. Due to Ms. Stratuik’s refusal to be examined, the balance of the examinations were adjourned which resulted in the Defendants incurring substantial costs thrown away.

15Cpl. Fenner and the Attorney General of Canada support Sgt. Letendre’s position.

16Ms. Stratuik takes the position that it would serve the ends of justice to exclude the Defendants from her examination, exclude the Defendants from the examinations of their co-Defendants unless they have already given their evidence and all parties should bear their own costs thrown away from the aborted examinations.

17In the alternative, Ms. Stratuik submits that if this court determines that the Defendants should be allowed to sit in on the examination of Ms. Stratuik, she asks that this court direct that her examination be done by video conference to protect her from the harmful effects of being in the same room as the Defendants.

Analysis

18Rule 34.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the obligation of a party to appear for examination when properly served. It reads as follows:

Examination of Plaintiff

31.04 (1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after delivering a statement of defence and, unless the parties agree otherwise, serving an affidavit of documents.

19Rule 34.15 of the Rules also sets out the consequences of not adhering to Rule 34.04(1). It reads as follows:

SANCTIONS FOR DEFAULT OR MISCONDUCT BY PERSON TO BE EXAMINED

34.15 (1) Where a person fails to attend at the time and place fixed for an examination in the notice of examination or summons to witness or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that he or she is required to produce or to comply with an order under rule 34.14, the court may,

(d) make such other order as is just.

20In Baywood Paper Products Ltd. v. Paymaster Cheque-Writers (Canada) Ltd. (1986), 57 O.R. (2d) 229 (Dist. Ct.), at p. 239, Borins D.C.J. (as he was then), discussed the inherent right of a party to be present at the different stages of a trial process.

… every person has an inherent right to be present at his or her trial or any other proceedings which form part of the trial process. This would include the examination for discovery of the opposite party. A party has as much right to be present at the examination for discovery of the opposite party as he or she has to be present in the court-room and listen to this testimony at the trial. No one is more vitally affected by the result of a lawsuit than a party. It is for this reason that a party has the right to participate in any phase of a trial in which his or her interests may be affected.

…the entitlement is that of the client, who is entitled to be present because it is his or her lawsuit. The presence of a party at the examination for discovery, like the presence of a party at trial, is consistent with due process and the right to protect his or her interests by observing the conduct of the examination. Similarly, where a corporation is a party, a representative of the corporation should be entitled to be present to insure that its interests are adequately protected.

21Borins D.C.J. also reviewed the fact that a judge has the discretion to exclude parties from the examination room in certain circumstances.

22In DiMartile v. GMCL, 2012 ONSC 3149, 98 C.C.P.B. 269, at para. 55, Master Haberman found that there is a benefit to having one party attend at the examination of the opposing party. She stated:

[T]he process is enhanced if parties are required to give their evidence while facing their adversary who may well have a different version of events. Some parties may find it more difficult to play fast and loose with the truth or to do so in a convincing manner when the person who knows the score is sitting right across from them. Thus, in most cases, permitting parties adverse in interest to hear one another testify may well enhance the ends of justice. Excluding parties in those cases is not something that should be undertaken lightly.

23More recently, in Lazar v. TD General Insurance Co., 2017 ONSC 1242, 137 O.R. (3d) 206, at para. 38, Spies J. reviewed the issue of whether a party should be excluded from an examination. He adopted the test set out by Borins D.C.J. in Baywood: one must look at the competing interests and the party seeking exclusion has the onus to demonstrate it is necessary to meet the ends of justice.

24In Lesniowski v. H.B. Group Insurance Management Ltd., 2003 CarswellOnt 9238 (S.C.), at para. 18, Echlin J. listed the circumstances in which an exclusion order is warranted:

• where evidence is likely to be tailored;
• where evidence is likely to be parroted;
• where a party is likely to be intimidated;
• where the proceedings are likely to be disturbed or disrupted;
• where the ends of justice require exclusion [Citations omitted.]

25In Roe v. Leone (2009), 96 O.R. (3d) 234 (S.C.), Nolan J. determined a motion where the Plaintiff sought to exclude one of the Defendant’s from attending at her examination. The Plaintiff claimed that she had been infected with the HIV virus by that Defendant. He had been charged and found guilty of sexually assaulting the Plaintiff and others. Citing Redekop v. Redekop (1998), 41 O.R. (3d) 301 (Gen. Div.), Nolan J. set out the principles that apply in a review of whether or not an exclusion should be granted. They are as follows (at para. 13):

• the court cannot establish subspecies of cases where at a party’s inherent right to be present at a discovery is eliminated;
• the court may prevent a party from attending a discovery, but only in exceptional circumstances;
• the existence of exceptional circumstances must be proven by the party seeking to exclude another party;
• the proof is on a balance of probabilities; and
• the court should not assume intimidation from a set of circumstances, the intimidation must be proven.

26Having cited the relevant caselaw, I turn to their application to the facts of this matter. In her Affidavit, Ms. Stratuik advises that as a consequence of the incident, she suffers from depression, anxiety and post-traumatic stress. Her anxiety and post-traumatic stress are made worse when she sees a military police officer and a military police car. She feels that being in the presence of Cpl. Fenner and Sgt. Letendre would be “very detrimental to [her] physical and mental health.” She will also have difficulty focusing and properly answering the questions that are asked of her. Ms. Stratuik does not provide any medical documentation to support her allegations.

27I will begin by stating that there is a significant issue with regards to Ms. Patterson’s Affidavit. She is a legal assistant in Ms. Hill’s office. Ms. Patterson bases her knowledge on her many interactions with Ms. Stratuik by telephone and e-mail in addition to having met her on one occasion. Ms. Patterson, an individual with no medical training that this court is aware of, opines about Ms. Stratuik’s mental health status. For example, Ms. Patterson comments that Ms. Stratuik seemed extremely depressed, overwhelmed and paranoid. It was Ms. Patterson’s understanding that Ms. Stratuik was emotionally fragile and likely suffering from post-traumatic stress disorder. “My interactions with her are as expected for someone with these issues.” Ms. Patterson also states that Ms. Stratuik has suffered “some difficult life problems” in the last several years since the incident. Ms. Patterson’s views regarding Ms. Stratuik’s mental health issues are clearly inappropriate and I do not accept them as evidence.

28Furthermore, the medical note regarding Ms. Stratuik’s service dog and Dr. Mason’s medical note are attached to Ms. Patterson’s Affidavit. I find it quite odd that Ms. Patterson’s Affidavit contains the medical information related to Ms. Stratuik instead of Ms. Stratuik’s own Affidavit.

29I feel obligated to add that I find it quite concerning that a legal assistant provides an affidavit which contains an opinion that is clearly not within her knowledge and/or expertise. Lately in Ottawa, we have been receiving many Affidavits from legal assistants that surpass the knowledge of the affiant. There are limits to what should be contained in a legal assistant’s affidavit. Bald assertions as contained in Ms. Patterson’s Affidavit are clearly of no weight.

30I do not wish to have my comments seen as belittling the medical information received regarding Ms. Stratuik’s mental health. They are simply to address the issue of inappropriately having a legal assistant opine on a client’s medical issues.

31It is worth adding that Dr. Mason’s medical note advises as follows:

Please be advised that I am a medical doctor, licensed to practice in the province of Ontario, and that I am the family physician for the above-named patient. Ms. Stratuik has been under my care for many years now.

Given her psychological makeup, I do not think it is in any way possible for her to engage in courtroom attendance when the defendants are in the room at the same time as she is.

I trust the foregoing information is of assistance to you. If you require anything further, please do not hesitate to contact my office.

32It is important to note that there was no evidence presented to support whether or not Dr. Mason was the author of both medical notes. The issue of the author, however, is not relevant to my determination of these motions.

33It is clear, that all Defendants in this matter have an inherent right to attend Ms. Stratuik’s examination. This court, however, has the discretion to exclude parties from the examination in certain circumstances. I wish to point out that Ms. Stratuik has not proven any intimidation on the part of any of the Defendants. I must also review whether or not the medical information provided is sufficient to constitute an exceptional circumstance. Dr. Mason’s medical note discusses courtroom attendance. As we are aware, examinations are not held in a courtroom.

34Furthermore, Ms. Stratuik expressed that her anxiety and post-traumatic stress are made worse when she sees a military police officer and a military police car. This court was advised that the two Defendants were dressed in civilian clothes on the day of Ms. Stratuik’s examination.

35With regards to excluding the Defendants from the examination of the other Defendants, Ms. Stratuik also argues that the co-defendants have a common interest, the examinations of the Defendants will by necessity cover the same grounds, credibility will be a significant factor/issue in this case and there is no prejudice to the Defendants if they are excluded.

36In Cpl. Fenner’s Affidavit, he states that during Ms. Stratuik’s examination, he may share with his counsel information, recollection or knowledge that he has that could lead to a line of questioning to challenge her evidence.

37In addition, as listed in the findings of fact, as part of the normal course of their duties as Military Police Officers, Sgt. Letendre and Cpl. Fenner made contemporaneous duty notes and Sgt. Letendre also completed a General Occurrence Report regarding the incident. Their interviews regarding the incident were audio recorded and summaries were included in the final investigation report. This information limits the possibility of the Defendants trying to manipulate their evidence and if they do so, Ms. Stratuik’s legal team will be able to use this information to attack their credibility.

38Based on the limited medical evidence that was provided in this matter, the absence of any evidence of intimidation, and the fact that Sgt. Letendre and Cpl. Fenner made contemporaneous duty notes, a General Occurrence Report and their interviews were audio recorded, I do not find that Ms. Stratuik has proven that this is an exceptional circumstance that warrants the exclusion of the Defendants from her examination. However, I find that there is a simple way to ensure that Ms. Stratuik feels more at ease during her examination. It can be done with her and her counsel sitting in one room and the Defendants and their counsel sitting in another room as she is questioned by video-conference. Consequently, I grant the orders for attendance of the Defendants to Ms. Stratuik’s examination and the examination of the other co-Defendants with the limitation provided below and dismiss Ms. Stratuik’s motion.

39With regards to the issue of costs thrown away, I find that Ms. Stratuik is responsible for these costs. Cpl. Fenner’s counsel was very clear in his e-mail of October 18, 2018, regarding the possibilities of an adjournment. Ms. Stratuik’s counsel did not raise any issue with the possibility of the Defendants’ personally attending Ms. Stratuik’s examination. There was no evidence tendered with regards to the practice in Ottawa as to whether or not it is the norm for clients not to attend the examination of the other party. Nor am I aware of such practice; in fact, I find it is quite the opposite and parties regularly attend the examination of the other party.

Conclusion

40I order as follows:

1. Ms. Stratuik shall re-attend for examination;
2. the Defendants may be present during Ms. Stratuik’s examination during which she and her counsel will sit in one room and the Defendants and their counsel will sit in another room as she is questioned by video-conference; and
3. Ms. Stratuik must pay the Defendants’ reasonable costs thrown away for the improper cancellation of the examinations scheduled for November 13-16, 2018, as follows: i. for Sgt. Letendre, the amount of $4,000; ii. for Cpl. Fenner, the amount of $6,000; and, iii. for the Attorney General of Canada, the amount of $4,000.

Costs

41The Defendants are the successful parties in this case. If the parties cannot agree as to costs, they may provide my office with brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. The Defendants will have ten days from the date of these Reasons for Decision to provide submissions and Ms. Stratuik will have ten days thereafter to do the same. Sgt. Letendre will be allowed a brief reply if deemed necessary, of no more than one page, which shall be provided within the next five days following receipt of Ms. Stratuik’s submissions.