Court File and Parties

COURT FILE NO.: 16-68471

MOTION HEARD: 20191119

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Valarie Findlay, Plaintiff

AND:

Matthias Yagminas and Kevin Yagminas, Defendants

BEFORE: Master Kaufman

COUNSEL: Valarie Findlay Counsel, representing herself

Matthias Yagminas and Kevin Yagminas, representing themselves

HEARD: In writing

REASONS FOR DECISION

[1] The plaintiff brings this motion for an Order excluding the co-defendants from attending each other’s examination for discovery. This motion requires a balancing of two competing interests: a party’s inherent right to be present at every stage of the trial process and promoting the integrity of the discovery process.

[2] The only issue to be determined is whether the plaintiff has established a risk that the co-defendants may tailor their evidence if the exclusion order is not made.

The test to exclude parties from attending examinations for discovery

[3] The plaintiff fears that the co-defendants, who are father and son, will tailor or parrot each other’s evidence if one was present during the examination for discovery of the other.

[4] The highest and most recent authority on this issue is Lazar v. TD General Insurance Company 2017 ONSC 1242 (Div. Ct). It concerned a motion brought by an insurer to exclude the two plaintiffs, who were husband and wife, from each other’s examination for discovery. The plaintiffs’ home had been destroyed in a fire and a dispute arose about the value of the home’s insured contents.

[5] After reviewing two competing lines of authority, the Divisional Court concluded that the applicable test was whether the exclusion was necessary to meet the ends of justice. To make this determination, the Court may consider the factors enumerated by Master P.E. Roger in Besner v. Ontario, 2011 ONSC 7335:

Factors considered include: whether the co-parties have common interests; whether the co-parties are represented by the same lawyer;

whether it appears that the examinations for discovery of co-parties will cover the same grounds; whether credibility will be a factor or an issue in the case; whether evidence is likely to be tailored or parroted; whether a party is likely to be intimidated; whether the proceedings are likely to be disturbed or disrupted; whether there would be prejudice to the excluded party; and, generally, whether the ends of justice require the exclusion [citations omitted].

[6] This list is not exhaustive. It is not always necessary to prove that a party would likely tailor or parrot evidence. A party may meet the onus by showing that there is a risk that evidence will be tailored or parroted.[^1] This assessment must be made on the facts of each case and based on the issues raised in the litigation.[^2]

Is there a risk of tailoring evidence in this case?

[7] The litigation arises from a dispute between neighbours. The allegations bear summarising.

[8] The plaintiff complained to the Ottawa Police about certain problems with an access lane that is adjacent to the parties’ respective properties. It appears that she wanted to either limit or close the access to the road. The defendants did not.

[9] The plaintiff alleges that after she complained about the access lane, her horse was beaten and sustained significant injuries. She also alleges that someone left poisoned meat on her property in order to injure or kill her dogs.

[10] The police investigated these incidents, but no charges have been laid.

[11] The plaintiff offered a reward for information leading to the identification of the perpetrators. The defendants believe that the plaintiff suspects them of committing these crimes. They claim that the plaintiff sees a link between the disagreement over the access lane and the beating of her horse and the attempt to poison of her dogs. The defendants deny that they had anything to do with these acts of animal cruelty.

[12] The plaintiff and the defendants claim against each other for defamation. The plaintiff claims that the defendants defamed her in direct response to the reward she offered for information about the identity of the perpetrators. The defendants claim that the plaintiff defamed them by insinuating that they are the perpetrators.

[13] The majority of the impugned defamatory statements were published on Facebook. The plaintiff operates an account under the name “Jane Penny” whereas Matthias Yagminas admits he posted messages from a “Josh Lee” profile. There is a dispute among the parties about whether the “Josh Lee” posts were co-written by the defendants.

Analysis

[14] The defendants object to the motion on several grounds. First, they assert that they have an inherent right to be present at each other’s examination for discovery. Second, they submit that the plaintiff has not met her onus of proof, and she has not demonstrated that the exclusion is necessary to meet the ends of justice. They point out that the plaintiff did not file an affidavit as part of the motion and merely attached certain unsworn documents. Finally, in their affidavit, the defendants claim that the plaintiff posted what they viewed as threatening messages, and they fear being alone in a room with her.

[15] I am of the view that the motion should be allowed in part. Taking all of the Besner factors into account, I conclude that there is a risk that the evidence would be tailored. These are my reasons:

a. The co-defendants have common interests;

b. the examinations for discovery of co-defendants will cover the same grounds;

c. credibility will be an issue in this case. The cause of action is for defamation. There are issues about whether certain matters are being insinuated, and whether certain statements refer to the plaintiff. The parties’ intentions for making the impugned statements are also relevant. These are matters for which there would be no objective documentary support. Moreover, there is a dispute about the authorship of the “Josh Lee” posts;

d. finally, and importantly in my view, Matthias Yagminas is Kevin Yagminas’ 22-year-old son. As a father and a son, they would be placed in a difficult position if they had to disagree or contradict one another. They have the same interests in this litigation, and they perceive that they are being accused of having committed a serious offence. This increases the risk of tailoring of evidence, whether consciously or unconsciously.

[16] The co-defendants have expressed a concern about being alone with the plaintiff. But they would not be alone with the plaintiff because a court reporter would also be present. In any event, and to allay the safety concerns expressed by Matthias Yagminas, his father can be present when he is being discovered.

[17] The examination will proceed in the following manner: Mr. Kevin Yagminas will be discovered first without Matthias Yagminas. Mr. Matthias Yagminas will be discovered second, and Kevin Yagminas may be present. The two co-defendants are not to disclose evidence given at the examination for discovery until the examinations are completed.

[18] This Order will not cause prejudice to the defendants: Mr. Matthias Yagminas will be able to obtain a transcript of Kevin Yagminas’ examination, and the co-defendants will be present during each other’s testimony at trial. Their right to be present for all aspects of the action is therefore minimally impaired.

[19] The plaintiff did not seek costs, and none are being awarded.

Master Kaufman

Date: November 21, 2019

[^1]: Lazar v. TD General Insurance Company 2017 ONSC 1242 (Div. Ct) at paras 39-40. [^2]: Ibid, at para 41.