COURT FILE NO.: CV-18-78503

MOTION HEARD: 20191017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARC ANDREW ARNOLD, Applicant / Moving party

AND:

JOHN JAMES ARNOLD, DAVID PAUL ARNOLD AND LOUISE ARNOLD, Respondents

BEFORE: Master Kaufman

COUNSEL: Jeff G. Saikaley, Counsel for the Applicant

Shaela W. Rae, Counsel for the Respondent, Louise Arnold

Gib Van Ert, Counsel for the Respondents John and David Arnold

HEARD: October 17, 2019

REASONS FOR DECISION

[1] The applicant brings this motion under rule 39.02 of the Rules of Civil Procedure[^1] to compel Ms. Louise Arnold (“Ms. Arnold”), his mother and a respondent in this proceeding, to re-attend and complete the cross-examination on her affidavit. The underlying proceeding is an application to remove Ms. Arnold’s attorneys for property, and have the court appoint a guardian of property.

[2] Ms. Arnold is an 87-year-old widow. She did not want to be involved in this litigation with her son. The first time the applicant cross-examined her, she became emotionally overwhelmed and the parties consented to adjourn the cross-examination. A doctor specializing in geriatric medicine advised against continuing the cross-examination by an attorney. A nurse at the retirement home where Ms. Arnold resides witnessed first hand the adverse effects the first cross-examination had on her and believes that there is a risk that continuing the cross-examination would have negative physiological consequences.

[3] On July 25, 2019, the parties attended a case conference where the subject of Ms. Arnold’s aborted cross-examination was discussed. I ordered that Ms. Arnold be procedurally accommodated. The applicant’s questions would be asked by her own lawyer, the cross-examination would be recorded, and the applicant’s counsel would listen by phone. All the parties agreed with this solution, but the parties could not complete this process by August 6, 2019 and the application was adjourned for a third time.

[4] In response to this motion, Ms. Arnold renewed her offer to complete her cross-examination in the manner described in my endorsement of July 25, but the applicant refused. He asks the Court to order her to subject herself once again to the usual manner of cross-examination, or else strike her affidavit. He also asks that the application be adjourned a fourth time.

[5] At the conclusion of the hearing, I dismissed the motion orally with reasons to follow. These are my reasons.

Procedural background

[6] The application was commenced on November 21, 2018 and initially scheduled to be heard on March 20, 2019. It was adjourned to June 14, 2019, adjourned again to August 6, 2019 and further adjourned to October 17, 2019.

The initial attempt to cross-examine Ms. Arnold

[7] Ms. Arnold swore her affidavit on June 18, 2019. The affidavit is unfavourable to the applicant. On July 10, 2019, Ms. Arnold was cross-examined at her counsel’s offices. By all accounts, and in the court’s opinion after reading the transcript, Mr. Saikaley conducted the cross-examination in a very professional and sensitive manner. The examination lasted approximately 2 hours and 43 minutes. Although she was cross-examined in a delicate and appropriate manner, Ms. Arnold required four separate breaks to compose herself during her cross-examination. It was eventually aborted on agreement of the parties. The applicant does not dispute that Ms. Arnold became emotionally overwhelmed and unable to continue.

[8] The applicant wished to complete Ms. Arnold’s cross-examination. Ms. Rae, counsel for Ms. Arnold, suggested that it proceed in writing, and she undertook to acquire Ms. Arnold’s evidence without the other respondents’ input. The applicant responded by requesting a case conference to address this issue ahead of the application, then scheduled on August 6, 2019.

The July 25 procedure to complete the cross-examination

[9] The parties appeared before me on July 25, 2019. On that date I issued a case conference endorsement which provided a very aggressive timetable, on consent, to complete all remaining steps. This included the completion of Ms. Arnold’s cross-examination. On the topic of Ms. Arnold’s cross-examination, I ordered the following:

1. Ms. Arnold will make best efforts to provide to the applicant with a doctor’s note justifying her inability to continue the cross-examination on her affidavit by July 29, 2019.

2. The applicant will send Ms. Arnold’s counsel a list of the remaining questions he seeks to ask Ms. Arnold in his cross-examination. Ms. Arnold’s counsel will ask her client these questions, and Ms. Arnold will respond to these questions before a stenographer. If it is acceptable from a medical perspective, Mr. Saikaley will listen in on the telephone. This cross-examination is to occur on Thursday, August 1, 2019.

Ms. Arnold obtains medical letters

[10] Ms. Arnold obtained a letter from her doctor one day late, on July 30, 2019. The letter is signed by Dr. R. Ellen, who cared for Ms. Arnold between March and May 2019 at the Bruyere John and Jennifer Ruddy Geriatric Day Hospital. Dr. Ellen is a specialist in geriatric medicine. She does not believe that Ms. Arnold can withstand any cross-examination by an attorney without causing her undue harm. Additionally, as a result of her medical diagnoses, she cannot provide reliable or accurate evidence.

[11] Ms. Arnold also obtained a letter from Nicole McCaig, a nurse manager at Governors walk retirement residence, where Ms. Arnold resides. According to nurse McCaig, Ms. Arnold was in a panic state, concerned for her future and confused in all matters after her cross-examination of July 10, 2019. Ms. Arnold was stressed and anxious for days. Nurse McCaig believes that Ms. Arnold can very clearly express her feelings, wants and needs under “unpressured circumstances” but that she becomes anxious and panicked to the point of not being able to communicate her wants the moment a stranger or the public are involved. She adds that staff at the retirement residence put in multiple hours to calm her after the cross-examination. It is her professional opinion as a registered practical nurse that cross-examining Ms. Arnold will only cause her further undue harm, anxiety and agitation and will result in physiological repercussions. She does not believe that any statements she makes under such a heightened state of anxiety would likely be accurate and reliable.

[12] After receiving Dr. Ellen’s letter, the applicant requested an urgent case conference before me, which was held on August 1, 2019. It was clear that the parties would not be ready to proceed on August 6, 2019, and the application was adjourned once more to October 17, 2019. I wrote another case conference endorsement where I ordered that all cross-examinations be completed by the end of August 2019. The endorsement also provided that the applicant could bring a motion in respect of the aborted cross-examination of Ms. Arnold by August 14, 2019.

Offer to complete the cross-examination in accordance with the July 25 endorsement

[13] Ms. Arnold’s counsel proposed that the cross-examination be continued in writing without the presence of a court reporter and undertook that Ms. Arnold would not confer with other family members before providing her answers. On August 14, 2019, the applicant brought this motion.

[14] Ms. Arnold’s counsel followed up on her proposal on August 21, 2019 and on September 16, 2019, she confirmed that her client was willing to proceed to the cross-examination in accordance with my July 2015 endorsement. Mr. Saikaley responded on September 16, 2019 that he did not have the instructions to accept that offer. On September 26, 2019, the applicant asked to cross-examine Dr. Ellen and nurse McCaig.

[15] On October 3, 2019 Ms. Arnold rejected the applicant’s proposal to cross-examine the medical personnel and confirmed that she remained available to be cross-examined on the terms set out my July 2015 endorsement.

The issues

[16] The issues in this motion are 1) whether Ms. Arnold should be required to complete her aborted cross-examination in the usual manner, or 2) in the alternative, whether her affidavit ought to be struck. The applicant also asks for an adjournment of the application scheduled for Monday October 17, 2019.

Ms. Arnold provided sufficient evidence to adapt the cross-examination procedure

[17] The applicant argues that the medical information Ms. Arnold submitted is insufficient to take away Mark Arnold’s right to cross-examine her. He relies on Ozerdinc Family Trust v. Gowling Lafleur Henderson LLP[^2] which concerned a defendant who suffered a medical condition which caused chronic pelvic pain, skeletal muscle spasms and loss of control. His health practitioners recommended that his examination for discovery proceed by written interrogatories instead of an oral interrogation. This case stands for the proposition that the party resisting oral discovery bears the onus of demonstrating by persuasive medical evidence that he or she was unable to attend discovery. The court may excuse a party from oral discovery where the evidence shows a real potential that the party to be examined will suffer harm as a result of the procedure and where there is a reasonable alternative available. He also relies on Mohanadh v. Thillainathan, [^3] which also concerned a dispensation from attending an oral examination for discovery. In that case, Master Muir wrote that the party seeking to avoid an oral examination must provide “persuasive” or “compelling” medical evidence of a real potential that the party could suffer psychological damage.

[18] The Applicant argues that the evidence of Dr. Ellen and Nurse McCaig do not meet the high burden set out in the jurisprudence. Dr. Ellen’s letter is imprecise and Nurse McCaig is not a medical doctor. He further submits that the evidence is irregularly submitted, as the medical letters are attached as an exhibit to a law clerk’s affidavit and were not subject to cross-examination.

[19] The Court is of the view that the Applicant’s motion is misconceived because Ms. Arnold is not refusing to complete the cross-examination orally. Under Rule 34.15, where a person fails to attend at the time and place fixed for an examination in a notice of examination, the court may make such order as is just. My endorsement of July 25, 2019 was such an order, and it provided for an alternate way to complete the cross-examination orally. The examination would have been oral, although Mr. Saikaley would have been on the phone and his questions would have been asked by Ms. Arnold’s counsel. Such a process would have still had the benefit of receiving spontaneous answers, and follow-up questions could have been delivered and asked after taking a short break.

[20] The jurisprudence the applicant relies upon provides that a party can be excused from oral discovery where there is a real risk of harm and there is a reasonable alternative. I am of the view that the procedure outlined in the July 25 endorsement provided a reasonable alternative. All parties agreed with that procedure on that date.

[21] With respect to the way the medical evidence was submitted, I agree with Master MacLeod (as he then was) that on a procedural motion, the court need not be satisfied with scientific precision nor absolute certainty that harm will result. The evidence must persuade the court that there is a real risk of harm.[^4] Moreover, in Mohanadh v. Thillainathan, Master Muir accepted a doctor’s letter appended to an affidavit where it was prepared solely for the purpose of directly addressing the issues on the motion, which is also the case here. Master Muir held that it was not necessary in the circumstances to obtain the doctor’s evidence directly by affidavit.[^5]

[22] I fully agree with the applicant that stress and upset are inherent in the litigation process and more is required to be excused from attending a cross-examination on an affidavit. But I am satisfied that the medical evidence submitted justifies adapting the cross-examination process to accommodate Ms. Arnold. First, Dr. Ellen and Nurse McCaig believe that Ms. Arnold is unable to accurately communicate in a stressful situation. The transcript of her first cross-examination supports these views. A reading of the transcript shows that Ms. Arnold’s answers were at times not responsive and difficult to comprehend.

[23] In addition, Dr. Ellen’s evidence is that Ms. Arnold would be exposed to health risks if she was cross-examined by an attorney. It is her opinion that she cannot withstand cross-examination without undue harm. Nurse McCaig’s evidence is that subjecting Ms. Arnold to a situation involving a stranger or the public “increases the risk of accidental harm, such as falls, sleep disturbances, increase in wandering / trying to make sense of what happened, and being too upset to eat / drink causing dehydration / anorexia”. She is an 87-year-old widow who did not want to swear an affidavit nor be involved in this proceeding. I am satisfied that these are serious risks for a person of her age. She characterizes this application as an “ordeal” which has been very stressful and emotionally draining. Nonetheless, she has offered to complete her cross-examination under the terms of my July 25 endorsement.

striking ms. Arnold’s affidavit is not an appropriate remedy

[24] The Applicant relies on Rule 39.02 which provides that a party may cross-examine the deponent of any affidavit served by an adverse party was adverse in an application. It is trite that when an affidavit is submitted in support of a motion or application, the general rule is that a responding party has a right to cross-examine, subject to the Court’s discretion to control its own process. No one takes issue with this principle.

[25] The applicant submits that if Ms. Arnold refuses to present herself to be cross-examined orally, or in a manner that constitutes a reasonable alternative, then the only other fair solution is to strike her affidavit. As I concluded above, Ms. Arnold did not refuse to be cross-examined through a reasonable alternative. She offered to be cross-examined in accordance with the procedure all parties had agreed to on July 25, which was a reasonable alternative in the circumstances.

Request for an adjournment

[26] I am denying the request for the adjournment because the applicant should have exercised the right to cross-examine in the manner originally ordered.

[27] Pursuant to Rule 39.02(3), the right to cross-examine shall be exercised with reasonable diligence and the court may refuse an adjournment of a motion or application for the purpose of cross-examination where the party seeking the adjournment has failed to act with reasonable diligence. The applicant’s case would have been stronger if Ms. Arnold had refused to be subject to cross-examination entirely. In the circumstances, I am of the view that the applicant should have accepted Ms. Arnold’s proposal to complete the cross-examination in accordance with the terms of the July 25 endorsement. That offer was made on September 16, 2019 and was confirmed on October 3, 2019. Arrangements could have been made to complete the cross-examination before the October 21, 2019 hearing.

[28] On June 12, 2019, Corthorn J. dismissed Daniel Arnold’s motion to intervene in these proceedings. She found that the criteria in Rule 13.02 were not met, but even if they had been met, she would have dismissed the motion on the basis of undue delay and prejudice alone. Justice Corthorn was of the view that the matter had been ongoing for too long and that the parties required a speedy resolution:

The dispute with respect to management of Louise’s property has been ongoing for more than six months. Louise has, in that time, been removed from her home. Allegations have been made that the individuals currently managing Louise’s property are acting inappropriately. Daniel faces uncertainty with respect to his living arrangements. Each member of the Arnold family needs a resolution of the subject matter at the heart of Marc’s application: Who is to be responsible for the management of Louise’s property?

[29] The application has been ongoing for 11 months it is scheduled to be heard on Monday October 21, 2019. The earliest date I could have adjourned it to was April 20, 2020. Judges have up to six months to issue a decision on an application. The respondents strenuously opposed the request for an adjournment. Considering the parties interests in the resolution of this matter, the applicant’s failure to accept a reasonable alternative to a traditional method of cross-examination and the fact that this would have been the fourth adjournment of this application, the adjournment request – in so far as it is based on the applicant’s inability to complete the cross-examination of Ms. Arnold – is denied.

[30] At the hearing, Mr. Saikaley advised that, had he been able to complete the cross-examination, he would have made certain documents as exhibits to the cross-examination. The applicant’s questions have been drafted. Ms. Rae and Mr. Van Ert have agreed that Mr. Saikaley could send these questions at this late hour, that best efforts would be made to provide written answers (there may not be time to arrange for a court reporter) and that they would not object to the applicant delivering an updated factum to the Court at the hearing of the application. Considering that the court had already dismissed the applicant’s motion, this is admirably fair and courteous on their part.

Costs

[31] There is no reason why costs of this motion should not follow the event.

[32] Mr. Saikaley and Ms. Rae’s costs outline are similar ($4,934. vs. $5,640.). They both provided factums and books of authorities and had appropriately delegated work to law clerks or articling students. I assess Ms. Arnold’s costs at $4,500.

[33] Mr. Van Ert did not file a factum but he attended at the hearing and made submissions. The applicant objected to his participation and argued that John and David Arnold should not be awarded costs. I allowed Mr. Van Ert to make submissions because our Rules do not require factums on this type of motion. As a party to this proceeding, and as his clients would have been affected by this motion’s outcome (i.e. the adjournment that would have inevitably followed from allowing the motion), he had every right to make submissions.

[34] Mr. Van Ert did not file a factum. He claims $1,650. on a partial indemnity basis. I award John and David Arnold $1,500. for their costs of the motion.

[35] Both amounts are inclusive of HST and disbursements and are payable within 30 days.

Master Kaufman

Date: October 18, 2019.

[^1]: R.S.O. 1990 Reg. 194.

[^2]: 2015 ONSC 2366 (Master).

[^3]: 2010 ONSC 6378 (Master).

[^4]: Ozerdinc Family Trust v. Gowling Lafleur Henderson LLP, 2015 ONSC 2366 (Master) at para 28.

[^5]: Mohanadh v. Thillainathan, 2010 ONSC 6378 (Master) at para 8.