Court File and Parties

Court File No.: CV-16-557087 Motion Heard: 2019-07-16 Superior Court of Justice - Ontario

Re: Beverley B. Bovill, Plaintiff And: The York Club, et al., Defendants

Before: Master Abrams

Counsel: M. Wade / A. Shnier, for the Plaintiff C. Lamm, for The York Club

Heard: July 16, 2019

Reasons for Decision

[1] The plaintiff has moved for an Order requiring the defendant, The York Cub, to produce its Club Services Manager, Nancy Wright, for discovery, notwithstanding that the plaintiff has already commenced her examination of Cyril Duport, the current Secretary/General Manager of The York Club. The examination of Mr. Duport was terminated shortly after Mr. Duport advised, under oath, that he wasn’t with The York Club at the time of the alleged incident giving rise to this litigation and that he was not in attendance at the event at which the incident was alleged to have occurred. That said, there is no question but that his answers bound and bind The York Club.

[2] Mr. Duport testified that, in preparing for his examination, he spoke with Ms. Wright. Ms. Wright was identified in a document listed in The York Club’s affidavit of documents, served in October 2017, as the event “coordinator” and “sales person”. Months later, i.e. in August 2018, plaintiff’s counsel served a notice of examination for The York Club requesting that “a representative” attend to be examined. There was no request for Ms. Wright to attend and no discussion with The York Club’s counsel, at any time before the commencement of Mr. Duport’s examination, as to whether he was appropriately poised to answer questions. While it is true that the choice of deponent is prima facie that of the plaintiff (Gibson v. Bagnall, et al., 1978 1572 (ON SC), [1978] O.J. No. 3645, at para. 8), the plaintiff chose to permit The York Club to bring “a representative” of its own choice to the table.

[3] There is nothing in the materials before me to suggests that Mr. Duport did not prepare and was not or would not be able to answer questions, including by way of undertakings—if necessary. Indeed, one of the things he did in preparation for his examination was speak with Ms. Wright. There is also nothing to suggest that Ms. Wright was the only person responsible for the placement of tables at the event in question (see QQ. 25 and 31, for example).

[4] In considering whether leave ought to be granted to have Ms. Wright attend to be examined, I have considered (inter alia) whether, without her examination, the plaintiff would be deprived of a meaningful discovery; whether Mr. Duport did not or would not satisfactorily inform himself; whether the answers given by Mr. Duport were incomplete, ambiguous or unresponsive; whether it would be unfair to require of the plaintiff that she proceed to trial without examining Ms. Wright; whether the examination of two persons would likely expedite the conduct of the action; and whether satisfactory answers respecting all issues raised cannot be obtained from Mr. Duport, or Mr. Duport alone, without undue expense and inconvenience (see, in this regard: RR. 31.02(b), 31.03(4), and 31.10 and Little (Litigation Guardian of) v. Ellerbrock, 2014 ONSC 5945 (at para. 21)). At this time and on the record before me, I cannot say that any of these questions can be answered in the affirmative.

[5] The York Club has said that the plaintiff may not continue its examination of Mr. Duport, save with leave (to be sought by way of motion). That motion for leave may now be brought.

[6] Failing agreement as to the costs of the motion, I may be spoken to. Unless I hear from counsel by August 31/19, I will assume that the issue of costs has been settled.

July 17, 2019 _______________________