Stewart v. HMQRO et al, 2019 ONSC 360

Court File and Parties

COURT FILE NOS.: CV-08-362956 and CV-08369412 DATE: 20191017 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard Mallory and Robert Stewart AND: Her Majesty the Queen in Right of Ontario, The Attorney General of Ontario, The Commissioner of the Ontario Provincial Police, Ottawa Regional Police Service Board, The Chief of Police of the Ottawa Regional Police, Lou Okmanas, Lyle MacCharles, Richard Riddell, Heather LaMarche, Christina Benson, John Ralko, Gary Doughtery, George Snider, Ian Davidson, Vikki Bair, Terry Cooper and Dennis Gaudreault

BEFORE: Mr. Justice Chalmers

COUNSEL: D. Mayer and E. Bala, for the Crown Law Office Civil V. Genova, S. Nagalingam, for the Plaintiff, Mallory R. Stewart, in person with J. Susin assisting

HEARD: October 7, 2019

Endorsement

Endorsement

1This case conference was convened to deal with issues related to the examinations for discovery which are scheduled for a 3-week period starting January 20, 2020. The following issues were identified:

1. Confirm the discovery of the Defendants and the order and length of time for each witness;
2. Who between Mr. Genova and Mr. Stewart will examine first; and
3. How will the cost of the discoveries be shared between Mr. Genova’s clients and Mr. Stewart?

2Mr. Susin participated in the call as Mr. Stewart’s representative. Mr. Susin is not permitted to represent Mr. Stewart at the examinations for discovery. Mr. Susin advised that he is taking steps to retain counsel to act for Mr. Stewart at the discovery.

3I expressed my concern that the discoveries are scheduled to start in 3½ months. It is therefore necessary that counsel be appointed for Mr. Stewart forthwith. He has had sufficient time to appoint counsel by now and the discoveries will not be adjourned if new counsel is appointed too late to prepare/attend the discoveries. I was assured by Mr. Susin that new counsel will be retained shortly.

Discovery Schedule

4The schedule for the discovery of the Defendants is as follows:

1. Week of January 20, 2020 i. Vikkie Bair – 2½ days ii. Heather LaMarche – 2½ days
2. Week of January 27, 2020 i. Rick Riddell – 1½ days ii. Christina Benson – 1½ days iii. John Ralko – 1½ days iv. Gary Doughty – 1½ days
3. Week of February 3, 2020 Continuation of Witnesses not completed during week of January 27, 2020 Terry Cooper and Lou Okmanas – Kingston Lyle MacCharles – Pembroke

5There was no objection raised on the conference call with respect to the order and time allotted for the discovery of each of the Defendants. Mr. Susin will consider this further and if he has an objection, he will forward an e-mail within a few days.

Order of Examinations

6With respect to who between Mr. Genova and Mr. Stewart will examine the witnesses first, Mr. Genova advised that to properly prepare for the discovery, it will be necessary to review hundreds of thousands of documents. Even if Mr. Stewart retains new counsel immediately, the new counsel may not be able to review all of the documents before the start of the Defendants’ discovery.

7I was also advised that Mr. Genova served Notices of Examination. Although Mr. Stewart has been involved in the scheduling of the discoveries, no Notice of Examination has been served on his behalf.

8I am satisfied that with no counsel currently retained by Mr. Stewart, Mr. Genova is in the best position to go first in questioning the Defendants on the discovery. After Mr. Genova completes his questioning of the witnesses, Mr. Stewart and his counsel, if retained, will be permitted to ask questions on discovery, but will not be permitted to ask questions previously asked by Mr. Genova.

9Mr. Susin raised concerns about proceeding in this way if he does not first receive from Mr. Genova a list of the questions he intends to ask the witnesses. Mr. Susin argues that without the list of questions, he will not know if Mr. Genova will be able to “competently” examine the witnesses first.

10I advised Mr. Susin that there is no requirement under the Rules for Mr. Genova to provide a list of questions in advance of the discovery and I will not be making an order that he do so. There is no obligation on the Plaintiffs to co-operate in these actions.

Costs of Discovery

11With respect to the costs of the discovery, Mr. Genova, who represents 3 of the 4 Plaintiffs agreed to be responsible for ¾s of the costs of the discovery and Mr. Stewart agreed to be responsible for ¼ of the costs.

Next Case Conference

12I impressed upon the parties the need to proceed with the discoveries scheduled to start on January 20, 2020. To ensure that the parties remain on track for the discoveries, the next case conference is scheduled for Friday, November 15, 2019 at 9 a.m.

Chalmers, J.