COURT FILE NO.: CV-19-58683
DATE: 20191023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Two Sisters Resorts Corp. and Solmar (Niagara 2) Inc.
M. Melling and S. Premi, Counsel for the Applicants/Moving Parties
Applicants/Moving Parties
- and -
The Corporation of the Town of Niagara-on-the-Lake and SORE Association
Respondents
B. Harasym, Counsel for The Corporation of the Town of Niagara-on-the-Lake
R. Stephenson, Counsel for SORE Association
HEARD: October 21, 2019
DECISION ON MOTION
The Honourable Justice J. R. Henderson
INTRODUCTION
[1] The applicants bring this motion for an order compelling Michael McClelland (“McClelland”) to answer questions that he refused to answer when he was cross-examined on his affidavit (the “refused questions”). McClelland is an architect and an expert in cultural heritage properties who swore an affidavit in this application in support of the position taken by the respondent, SORE.
BACKGROUND
[2] This application involves four parcels of land that comprise what is known as the Rand Estate in the Town of Niagara-on-the-Lake. The two applicants own all of the four parcels of land and wish to develop the property.
[3] The respondent, SORE, is an association of residents who are concerned about heritage properties in the Town of Niagara-on-the-Lake. SORE and other interested parties have made presentations to the Town regarding their concerns about the potential development of the Rand Estate.
[4] In August 2018, the Town passed Resolutions and a Bylaw (collectively called “the impugned instruments”) that had the effect of authorizing the issuance of Notices of Intention to Designate (the “Notices”) pursuant to the Ontario Heritage Act with respect to the Rand Estate. These Notices create restrictions or limitations on what the applicants are able to do with the property.
[5] In the application, the applicants seek to quash the impugned instruments and the Notices. It is the position of the applicants that the impugned instruments are vague and uncertain, that the Town acted unreasonably and arbitrarily, and that the impugned instruments were passed in contravention of the Town’s Official Plan.
[6] The Town defended the application, and SORE was later added as an intervener. Both the Town and SORE submit that the impugned instruments and the Notices are valid.
[7] McClelland’s sworn affidavit containing his expert opinion has been filed by SORE in the application. In his affidavit, McClelland deposed, among other things, that he is an architect with expertise in heritage properties, and that in his opinion the Town followed the proper process in passing the impugned instruments and issuing the Notices.
[8] On his cross-examination on September 10, 2019, McClelland refused to answer a series of questions put to him by counsel for the applicants. In summary, the refused questions relate to a letter dated May 8, 2019, from McClelland to the Town, and a presentation that McClelland made to Town Council on July 8, 2019. In both the letter and the presentation, McClelland alleged that the applicants were engaged in “demolition by neglect” with respect to the Rand Estate property.
[9] The refused questions also relate to McClelland’s email dated August 9, 2019 in response to a letter from a lawyer acting for the Town in which the Town’s lawyer stated that McClelland’s comments about demolition by neglect were libellous. He demanded an apology from McClelland. McClelland’s email did not respond to the substantive allegations in the lawyer’s letter, but rather asked eight further questions about the state of the property.
[10] On this motion, the applicants take the position that the refused questions should be answered as they are relevant to the issues raised in this application. Moreover, the applicants submit that the refused questions are relevant to the credibility of McClelland’s evidence.
[11] The respondent, SORE, takes the position that the refused questions are attempts to impeach McClelland’s character, which is not within the permissible scope of any cross-examination on an affidavit in an application. That is, SORE submits that the applicant may cross-examine a deponent on the credibility of the deponent’s evidence, but not on the credibility or character of the deponent.
[12] In the alternative, SORE submits that the applicants have a collateral purpose for asking the refused questions, namely to gather evidence in support of a possible defamation claim. The applicants’ position is that if there is any collateral use that may be made of the answers to the refused questions, the questions are only improper if they amount to an abuse of process.
[13] I note that the respondent, the Town of Niagara-on-the-Lake, does not take any position on this motion.
ANALYSIS
[14] The law with respect to the permissible scope of the cross-examination of a deponent on an affidavit for an application or motion is nicely summarized by Justice Perell in Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 143.
[15] In consideration of the principles set out in Rothmans, I acknowledge that the proper scope of any cross-examination on an affidavit will vary depending upon the nature of the application or motion. Also, the scope will vary depending upon the character and nature of the evidence that is the subject of the cross-examination.
[16] Further, questions put to a deponent on a cross-examination on an affidavit must be relevant to the issues raised on the application, or the matters raised in the affidavit by the deponent, or the credibility and reliability of the deponent’s evidence. The test for relevancy is whether the question has a semblance of relevancy.
[17] Still further, there is an overarching principle that an examiner will not be permitted to ask questions that are unfair or abusive to the deponent.
[18] In the case of Price v. H. Lundbeck A/S, 2018 ONSC 2483, at para. 27 Justice Perell summarized his own summary of the law set out in Rothmans as follows:
On a cross-examination for a motion, the examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion. Questions that are overbroad or speculative, colloquially known as a “fishing expedition” are not permitted. A question asked on a cross-examination for an application or motion must be a fair question. The scope of cross-examination with respect to credibility does not extend to a cross-examination to impeach the character of the deponent. The proportionality principle applies to cross-examinations on affidavits.
[19] Therefore, I accept the proposition that on a cross-examination on an affidavit in an application it is permissible to cross-examine on the credibility of the deponent’s evidence, but it is not permissible to cross-examine on the credibility of the deponent. That is, it is not permissible in the present case to cross-examine McClelland for the purpose of establishing that McClelland had a propensity for making careless or uninformed statements and that accordingly his opinion evidence is less worthy of belief. With respect to credibility, the applicants in this case are only permitted to cross-examine McClelland on matters that relate to his evidence, not on matters that relate to his character.
[20] The difficulty is that the line between the credibility of a deponent and the credibility of a deponent’s evidence is often blurred. This case is a good example of that blurred line.
[21] I accept the submission by SORE that the applicants’ desire to cross-examine on statements made by McClelland on a date that is subsequent to the date of his sworn opinion evidence, is a factor in favour of the position taken by SORE. I also accept that the fact that demolition by neglect is not an issue that is raised in the application is also a factor in favour of SORE’s position.
[22] However, I do not find that McClelland’s statements made in May and July 2019 are completely unrelated to the present proceeding. In particular, I note that McClelland’s statements about demolition by neglect refer to the same property that is the subject of the application, and that those statements involve the same parties as the application. Thus, I find that there is at least some connection between statements made by McClelland in May and July 2019, the property, the parties, and McClelland’s opinion in this application.
[23] Moreover, there is an issue raised in the application as to whether the Town of Niagara-on-the-Lake rushed to a decision without exercising due diligence. I find that the issue of due diligence relates to both McClelland’s statements to the Town in 2019 and McClelland’s opinion evidence set out in his affidavit. I make this finding in part because of the eight questions asked by McClelland in his email to the Town’s lawyer in August 2019. Specifically, in that email McClelland asks several questions about the state of the buildings on the Rand Estate. In my view, the answers to those questions are relevant to McClelland’s opinion evidence set out in his affidavit.
[24] Therefore, I find that there is some relevance between the refused questions and the issues that are raised in the application. The relevancy threshold for the permissible scope of cross-examinations is relatively low. Using the terminology set out in Rothmans, I find that there is a semblance of relevancy in this case.
[25] In addition, I specifically find that the refused questions do not constitute a “fishing expedition”. These are not speculative questions as the refused questions relate to known statements made by McClelland to the Town about the subject properties.
[26] Still further, it is important to recognize that McClelland is tendered as an expert witness by SORE. Courts generally rely on the evidence of experts for information that goes beyond the expertise of the court. Thus, in my view, it is important to allow the parties a wide latitude in any cross-examination of an expert on the expert’s affidavit so the court may properly consider the weight to be given to that opinion evidence.
[27] For these reasons, I find that the refused questions are prima facie proper as they are relevant to the issues raised on the application and the credibility of McClelland’s evidence.
[28] With respect to the allegation by SORE that the applicants may be asking the refused questions for a collateral purpose, I find that the onus is on SORE to establish that the refused questions constitute an abuse of process. In my view, given that the refused questions have some relevance to the issues raised in the application, SORE has not established an abuse of process.
CONCLUSION
[29] In conclusion, I hereby order that McClelland answer the refused questions, set out at Tab 2 of the Motion Record, in writing within four days of the date of this decision.
[30] All other matters raised in this motion, including whether McClelland should be required to re-attend for cross-examination, whether there should be a new timetable, whether the application hearing should be adjourned, and costs are adjourned to October 25, 2019 at 10 a.m.
J. R. Henderson J.
Released: October 23, 2019
COURT FILE NO.: CV-19-58683
DATE: 20191023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Two Sisters Resorts Corp. and Solmar
(Niagara 2) Inc.
Applicants/Moving Parties
-and-
The Corporation of the Town of Niagara-on-the-Lake
and SORE Association
Respondents
DECISION ON MOTION
J. R. Henderson J.
Released: October 23, 2019