Court File and Parties

Court File No.: CV-17-584098 Date: 2019-01-15 Ontario Superior Court of Justice

Between: CLAUDIO DI GIROLAMO, Plaintiff – and – COMPUCOM CANADA CO., Defendant

Counsel: Soma Ray-Ellis and Kevin Fisher, for the Plaintiff John C. Kloosterman and Jacqueline J. Luksha, for the Defendant

Heard: January 14, 2019 (Motion)

Before: M. D. Faieta J.

Reasons for Decision

Introduction

[1] The Plaintiff, Claudio DiGirolamo, was a sales executive for the Defendant, Compucom Canada Co, for about 18 years. In this action, the Plaintiff claims that in about August, 2015, he and the Defendant’s Chief Executive Officer reached a verbal agreement whereby his compensation would, in addition to his base salary and commission, be expanded to include profit sharing. The Plaintiff also claims that he was constructively dismissed by the Defendant in August 2017. Amongst other things, the Plaintiff seeks damages for breach of contract in the sum of $4 million for failure to pay profit sharing. The Defendant alleges that the Plaintiff was never promising profit sharing. Instead, the Plaintiff was offered profit sharing or commissions and the Plaintiff chose to receive commissions.

[2] The trial of this action commenced today. Prior to its commencement, I heard the Defendant’s motion, dated January 11, 2019, for an order permitting a proposed former employee of the Defendant to be permitted to give her evidence by video conference.

[3] The Defendant seeks the following Order:

THIS COURT ORDERS that, during trial, Ms. Cheryl Downing provide her evidence over live video conference, while remaining in the State of Texas, in the United States of America.

THIS COURT ORDERS that the parties, counsel for the Plaintiff and the Defendant, may examine, cross-examine, and re-examine Ms. Downing during the course of the trial by use of live video conference.

THIS COURT ORDERS that the Registrar prepare and issue a commission naming Jeremy W. Hawpe or another lawyer designated by Jeremy W. Hawpe, of Littler Mendelson PC, 2001 Ross Avenue, Suite 1500, Dallas TX, 75201-2931, as Commissioner to take the evidence of the witness Cheryl Downing in the State of Texas in the United States of America for use at trial.

THIS COURT ORDERS that the Defendant shall pay the reasonable costs incurred by Ms. Downing to attend the trial by video conference.

[4] The Defendant relies on solely the affidavit of counsel’s legal assistant. The affidavit states that Ms. Downing worked for the Defendant for many years until March 2017. As Vice-President of Finance, Ms. Downing played a large role in helping to develop the Defendant’s compensation structures. In fact, the Plaintiff and Ms. Downing frequently communicated about the proposed profit sharing and incentive plans in 2016 and many such communications were included in both parties initial Affidavit of Documents. Defence counsel has told the affiant that Ms. Downing’s evidence is critical to the Defendant’s defence. Amongst other things, an appended will say statement indicates that Ms. Downing will testify that: (1) the profit sharing program was never fully implemented; (2) the program never contemplated paying both commissions and profit sharing to an executive; (3) conditions for eligibility were not met in 2016; (4) profit sharing was to be shared by executives with others including the company.

[5] The Defendant’s position is Ms. Downing was a party to the discussions related to the profit sharing program and her evidence will speak to the status of the program and its incomplete nature. The Defendants submits that it will face significant prejudice if Ms. Downing’s testimony is not heard.

[6] The Plaintiff submits that he is eager to receive Ms. Downing’s evidence as she was fundamental in the creation of the profit sharing program, however he opposes this motion on two grounds: (1) the Defendant has not provided any direct evidence that Ms. Downing is unwilling or unavailable to testify in person; (2) the inconvenience, cost and time of Ms. Downing attending trial in person are not significant to overcome the general principle that evidence should be presented orally in open court.

Analysis

[7] The affiant states that counsel has told her that he spoke to Ms. Downing and that Ms. Downing told counsel that she refuses “… to participate, in person, in the litigation process and provide evidence, in person, during trial.” The affiant states that counsel has advised her that Ms. Downing told him that she “…agrees to provide evidence over video conference during trial”. The Plaintiff challenges this double hearsay evidence and submits that there is no direct evidence that the affiant is unable or unwilling to testify in person.

[8] While hearsay evidence may be adduced by affidavit on a motion, such affidavit must comply with the Rules of Civil Procedure. The affidavit contains statements of information and belief based on what the affiant was told by counsel appearing on this motion for the Defendant. This is a practice that should be avoided particularly when the information is disputed: Essa (Township) v. Guergis; Membery v. Hill, [1993] O.J. No. 2581, para. 34 (C.A.). Further, many of the statements in the affidavit are “double hearsay”, specifically, statements of information based on what the affiant was told by counsel who appeared on this motion about what Ms. Downing had told him: Airst v. Airst, [1999] O.J. No. 5866, para. 6 (C.A.) . In these ways, the affidavit does not comply with Rule 39.01(4). I do not accept such evidence. Ms. Downing’s evidence could have been provided directly by way of an affidavit or, at the very least, based on her direct communication with the affiant.

[9] Rule 1.08 of the Rules of Civil Procedure provides that the court may order that oral evidence of a witness at trial may be heard or conducted by video conference if it is just to do so considering:

(a) the general principle that evidence and argument should be presented orally in open court;

(b) the importance of the evidence to the determination of the issues in the case;

(c) the effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) the importance in the circumstances of the case of observing the demeanour of a witness;

(e) whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) any other matter.

[10] Both parties agree that Ms. Downing has important evidence to offer.

[11] There is no evidence of the effect that video conferencing would have on the court’s ability to make findings, including a determination of Ms. Downing’s credibility. There was no evidence regarding whether the proposed video conferencing location, its previous experience with providing such services to this Court, whether there have been any difficulties with the implementation of video conferencing such as with the quality of transmitted video or audio. In its submissions, the Defendant proposed that its U.S. counsel would assist Ms. Downing at the video conferencing facility in Texas but would not provide her with any advice. In my view, counsel assisting Ms. Downing at the video conference facility should not be the former or current counsel to either party.

[12] There were no submissions made regarding importance of observing Ms. Downing demeanour.

[13] The affidavit evidence did not explain why Ms. Downing does not want to attend trial in person.

[14] I am not satisfied that justice dictates that Ms. Downing be permitted to testify by video conference given the importance of her evidence and the general principle that evidence should be presented orally in the court.

Conclusion

[15] The Defendant’s motion for an order permitting Ms. Downing to provide her oral evidence by video conference is dismissed. The Defendant has the option of asking a Court in the State of Texas to compel Ms. Downing’s attendance at trial in accordance with a summons issued by this Court. Further, nothing in this decision should be read as prohibiting the Defendant from bringing a further motion, based on fresh evidence, for an order permitting Ms. Downing to testify by video conference.

Mr. Justice M. D. Faieta

Released: January 15, 2019