Court File and Parties

COURT FILE NOs: CV-18-603803-00CP DATE: 20190709

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Leslie Austin, Plaintiff – AND – Bell Canada, Bell Media Inc., Expertech Network Installation Inc., and Bell Mobility Inc., Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Mark Zigler, Jonathan Ptak, Garth Myers, and Matthew Baer, for the Plaintiff Dana Peebles, Atrisha Lewis, and Amanda Iarusso, for the Defendants

HEARD: July 9, 2019

ADMISSIBILITY OF LATE-FILED EVIDENCE

[1] Plaintiff moves to introduce the Pension Information Committee (“PIC”) Reports from 1998 to the present. At the moment, the only years of PIC Reports that are in the record are the 1998, 2015, 2016, and 2017 reports produced by the Defendants. Plaintiff says that if the Defendants are to rely on any of these reports, all of the relevant years should be in the record so that I can see the pattern.

[2] Defendants object and say that the missing years are not at issue in this litigation. Defendants also argue that if the Plaintiff wanted those reports in the record, he should have put them in up front and not wait until after cross-examinations have been completed. Defendants also submit that if the PIC Reports are to go in as requested by the Plaintiff, the Bell Pension annual statements should also go in for the same years. Plaintiff has no objection to that suggestion.

[3] The Defendants have copies of the PIC Reports from every year – they have produced them all in their Responding Record to this motion. Indeed, this is an unusual motion in that the Defendants are objecting to the late introduction of documents that are essentially their own documents – or, at least, they are joint documents in that the PIC is composed of representatives of the proposed class as well as the Defendants. The annual statements that the Defendants propose be submitted in the event that the PIC Reports are allowed are also the Defendants’ own records.

[4] In other words, the Defendants have no problem with the authenticity of any of these records or, for that matter, with the credibility of these records. They are what they are – the PIC Reports are what the Plaintiff and other potential class members would have seen each year. Defendants’ counsel has indicated that they do not need to cross-examine anyone on these reports if they are found admissible.

[5] In First Capital Reality Inc. v Centrecorp, 2009 CanLII 75631, at para 9, the Divisional Court set out the test for admissibility of evidence at a late stage in the proceeding. Essentially, the questions are:

a) Is the evidence relevant? I agree with Plaintiff’s counsel that the PIC Reports since 1998 are relevant to the motion in the sense that they provide the full context in which to see how the Plaintiff and other potential class members may have understood the annual pension calculations done by the Defendants, even if some of the years raise no controversy and are not directly at issue in these proceedings.

b) Does the evidence respond to something raised on cross-examination? Here, that is not the case, but rather it responds to something brought to the Plaintiff’s attention in the Defendants’ factum. That is analogous to being raised in cross-examination at least in the sense that the factum is the last document produced and filed, and is done when the evidentiary record is otherwise complete.

c) Would granting leave to file the proposed new evidence result in non-compensable prejudice to the Defendants? Here, it would not cause any prejudice. Nothing takes the Defendants by surprise since we are talking about the Defendants’ own documents. Moreover, the authenticity of the documents is not in question and the Defendants have no need to cross-examine on them. Also, any possible question raised by what we find in the annual PIC Reports is counterbalanced by the inclusion of the annual statements sought by the Defendants.

d) Has the moving party provided a reasonable explanation for why the proposed new evidence was not included in the record in the first place? I am satisfied that the Plaintiff was not aware that the Defendants would be making an argument about what the Plaintiff might have understood by looking at subsequent conduct (i.e. subsequent to 1998, when the PIC Record is already in evidence). It is understandable why the Plaintiff did not in the first instance think to include every year of PIC Reports.

[6] These factors add up to the conclusion that the evidence is admissible even at this late stage.

[7] As a final confirmation of this conclusion, I would rely on the reasoning articulated in para 10 of First Capital Realty, where the Divisional Court added that, “…even where the factors are not met, the court has residual discretion under rule 1.04 to permit the evidence if it is in the interests of justice to do so.” In my view, it is in the interests of justice here to see all of the PIC Reports in context.

[8] As was noted in Correct Group Inc. v Cameron, 2018 ONSC 6164, at para 23, particularly in a summary judgment motion (which is, together with a certification motion, what is otherwise before me today), a full evidentiary record should be before the court.

[9] The PIC Reports and the annual Bell pension statements from 1998 to the present shall be admissible in these motions.

Morgan J.

Date: July 9, 2019