COURT FILE NO.: CV-19-624832
DATE: 20191015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Adina Erem Isenberg, Plaintiff
AND:
Gabriel Erem aka Gabor Eichler et al., Defendants
BEFORE: Master P. Tamara Sugunasiri
COUNSEL: Taylor, R., Counsel for the Plaintiff/Moving Party
Du Vernet. P., Counsel for the Defendants
HEARD: October 8, 2019
REASONS FOR DECISION
[1] This is a dispute between family members over profits and assets gained and lost from the family business. The Defendants have a pending motion on October 22, 2019 to dismiss the action or obtain documents the Plaintiff refers to in her Statement of Claim. In support of that motion, Mr. Du Vernet’s law clerk, Carolyn Sheppard, swore a short affidavit, largely attaching relevant documents. Paragraphs 7 and 9, however, provide observation/comment/interpretation that in the Plaintiff’s view, warrants testing by way of cross-examination.
[2] The issue on this motion is whether Ms. Sheppard should submit to cross-examination. I conclude that she must because it is the Plaintiff’s prima facie right and there is no basis to interfere with it.
Preliminary Issue: Does the Plaintiff require an affidavit in support of this motion?
[3] The Defendants raise the preliminary objection that the Plaintiff’s motion is unsupported by an affidavit. There are five relevant documents for the motion the Plaintiff simply include as tabs in the record:
a. The Affidavit of Carolyn Sheppard and Exhibits;
b. The Notice of Cross-Examination;
c. The Certificate of Non-Attendance;
d. The Statement of Claim; and
e. The Notice of Motion returnable October 22, 2019.
[4] According to the Defendants, the Plaintiff should have tendered an affidavit attaching these documents as exhibits. Justice Mesbur considered this issue in Montor Business Corp. (Trustee of) v Goldfinger, 2011 ONSC 2044. The document in issue in that case was the report of a Trustee in Bankruptcy. Although the court generally accepts these reports as admissible evidence even when not attached to an affidavit, Justice Mesbur analysed the basis of that custom. There are two arguments from that case that are particularly applicable here. First, r. 37.10 presumes that affidavits are required in motions. Second, affidavits are required to ensure procedural fairness which includes a right to cross-examine.
[5] After analyzing r. 37.10(2)(c) which sets out the contents of a motion record, and r. 39.01 which states that evidence on a motion may be given by affidavit, Justice Mesbur concluded that the rules do not require that the only evidence to be used on a motion must be in affidavit form. Rather, materials other than affidavits may be used (Montor at para. 23). While her comments were in the context of a report prepared by a trustee who is an officer of the court, they apply more broadly in other circumstances such as the case at bar.
[6] Extrapolating from Justice Mesbur’s analysis in Montor, in determining if documents can simply be included in a motion record or must be appended to an affidavit, the court should consider the reliability of the documents. Does anyone challenge their authenticity and/or truth of contents? Are their circumstances surrounding the creation of the documents that are material to the issues in the motion and require an affidavit to explain the documents? Is any party prejudiced by their inclusion?
[7] This leads me to the second concern about procedural fairness and the right to cross-examine. The concern is that if documents are not appended to an affidavit, it deprives a litigant from testing the authenticity and truth of the documents because there is no one to cross-examine. This in my view, ties in with the question of reliability. Where documents are non-contentious and there is no dispute about their authenticity or truth, simply requiring an affidavit for the sake of it is to allow form to triumph over substance and efficiency. This is antithetical to encouraging cost effective, efficient and timely resolution of disputes.
[8] In Montor, Justice Mesbur found the trustee’s report to be just as reliable, if not more reliable than an affidavit solely based on information and belief because trustees were routinely in bankruptcy court and considered an officer of the court. In the present circumstances, the five impugned documents are uncontentious and uncontested documents presented by a member in good standing of the Law Society of Ontario. Three of the documents form part of the existing court file for the action. Of the three, two were created by the Defendants. A fourth documents is a certificate from an official reporter certified to transcribe cross-examinations. In these circumstances, an affidavit adds nothing but cost. There is no prejudice to either party to admit these documents without an affidavit.
[9] In sum, I allow the Plaintiff to rely on the documents in its motion record without an affidavit.
Should Ms. Sheppard submit to cross-examination on her affidavit?
[10] Ms. Sheppard’s affidavit largely attaches documents set out the sequence of events between the parties. As noted above, she adds some personal commentary in paragraphs 7 and 9. Paragraph 7 observes that some of the Plaintiff’s productions appear manipulated. Paragraph 9 states: “The Statement of Claim refers to documents, many without a date, or context, as set out in the Request to Inspect. The Defendants, who know nothing of any such documents, require production of the documents…” Mr. Taylor submits that he wishes to question Ms. Sheppard on these paragraphs in particular.
[11] The parties agree that there is a prima facie, but not an absolute right to cross-examination. The court retains residual discretion to control its process and deny cross-examination when, for example, such an exercise is futile, disproportionate, for an improper purpose, or abusive (see Likins v Francis, 1995 CanLII 7378 (ON SC), 1995 CarswellOnt 320 at para. 17 and Ainslie v CV Technologies Inc., 2008 CarswellOnt 7227 at paras. 26, 27).While I agree that it is possible that cross-examining Ms. Sheppard may have little probative value for the motion, the motions Master will be in a much better position to determine this. I am not prepared at this juncture to deny the Plaintiff the opportunity. I am not persuaded that the Plaintiff is embarking on a fishing expedition or wants to prematurely venture into the discovery process. I also see no prejudice to the Defendants or to the administration of justice itself other than costs. In that regard, the Defendants are presumptively protected. Rule 39.02(4)(b) obliges the Plaintiff to partially indemnify the Defendants for costs of the cross-examination, regardless of the result of the motion, unless the court orders otherwise.
Disposition:
[12] The Plaintiff is at liberty to examine Ms. Sheppard on her affidavit sworn September 5, 2019.
Costs:
[13] Both parties provided me with their costs outlines. The Defendants urge that I should reserve costs to the Master determining the motion. I agree. The utility of the cross-examination may be relevant to fixing costs of this motion. The Master hearing the main motion is best situated to determine that. For ease of the parties and my colleagues, I am sitting on October 22, 2019 and seize myself of the Defendant’s motion for inspection and production.
Original signed
Master P.T. Sugunasiri
Date: October 15, 2019