Court File and Parties

Court File No.: CV-16-126002 Date: 2020-01-13 Ontario Superior Court of Justice

Between: G.S., Plaintiff – and – K.C. also known as K.C. also known as K.H. also known as K.H. and C.H., Defendants

Counsel: Jonathan L. Frustaglio, for the Plaintiff Alyssa Barrs and Naphtali Silverman, for the Defendants

Heard: January 8, 2020

Reasons for Decision

CHARNEY J.:

Introduction

[1] The defendants/plaintiffs by counterclaim (the defendants) bring this motion for an order to exclude the plaintiff/defendant by counterclaim (the plaintiff) from being present at the examination for discovery of the defendant C.H. (Mr. C.H.).

Background Facts

[2] The first defendant, K.C., is the niece of the plaintiff, G.S. The second defendant, Mr. C.H., is Ms. K.C.’s son. The defendants moved to Canada from Cyprus in July, 2014, and temporarily resided with the plaintiff while they looked for their own residence.

[3] Mr. C.H. alleges that on November 14, 2014, the plaintiff sexually assaulted him by forcing him to perform oral sex on the plaintiff. Mr. C.H. was 14 years of age at the time. The allegations were reported to a teacher at Mr. C.H.’s school, and the school staff reported the information to the police. The plaintiff was never arrested, charged or convicted.

[4] On March 16, 2016, the plaintiff issued a Statement of Claim against the defendants seeking $1million damages against the defendants for various torts, including defamation.

[5] On April 1, 2016, the defendants issued a Statement of Defence and Counterclaim, seeking $3.5 million damages against the plaintiff for the alleged sexual assault.

[6] Following several procedural disputes unrelated to this motion, examinations for discovery were scheduled for January 17 and 18, 2019. The examination of the plaintiff proceeded on January 17, 2019, and was completed by 1:00 p.m. The examination for discovery of the defendants was scheduled to begin on January 18, 2019.

[7] Immediately following the plaintiff’s examination for discovery, the plaintiff’s counsel advised the defendants’ counsel that the plaintiff intended to be present for the defendants’ examination for discovery. Later that evening counsel for the defendants wrote to counsel for the plaintiff to express Mr. C.H.’s concern and distress about having the plaintiff in the same room while he was being examined. At that time Mr. C.H. was 18 years of age. Counsel for the defendants proposed that the examination of Ms. K.C. proceed first, with the plaintiff present, and that Mr. C.H. would then decide whether he felt “safe and/or mentally comfortable” proceeding with the plaintiff in the room.

[8] On January 18, 2019, both defendants attended for their examination for discovery. Plaintiff’s counsel took the position that they wanted to examine Mr. C.H. first, and that their client had the right to be present during the examination for discovery.

[9] Mr. C.H.’s counsel has sworn an affidavit for use on this motion in which he states that Mr. C.H. began panicking and crying at the prospect of being in the same room as the plaintiff. He suggested to counsel for the plaintiff that he could proceed with the examination of Ms. K.C., but that Mr. C.H. could not be examined that day with the plaintiff present. The plaintiff’s counsel took the position that they wanted both examinations to proceed on the same day. The examinations of both defendants were therefore adjourned and this motion was brought.

Legal Principles

[10] The parties agree that the legal principles applicable to the exclusion of a party to an out-of-court examination are summarized by Brown J. (as he then was) in York University v. Markicevic, 2012 ONSC 5325, at para. 8:

(i) There is an inherent right for parties to an action to be present during the cross-examination or examination for discovery of other parties to, or witnesses in, an action;

(ii) The court has the discretion to exclude parties from attending such cross-examinations or examinations for discovery;

(iii) However, the court does not establish classes of cases which eliminate a party’s inherent right to be present at an examination – “blanket exclusions” do not form part of our procedural law;

(iv) The person seeking to exclude a party from an examination bears the onus, on a balance of probabilities, of showing cause to justify such an exclusion;

(v) Cause depends on the circumstances of the case. Courts have defined cause as a realistic and substantial cause, circumstances that would cause prejudice to the party to be examined, or circumstances that make exclusion necessary to secure the ends of justice; and,

(vi) Demonstrated intimidation by one party towards the other is a justifiable reason to exclude, however a court should guard against assuming intimidation from a set of circumstances. Intimidation must be proven.

[11] It is clear that a party must demonstrate more than general discomfort or anxiety about the prospect of being examined with the opposing party present. The prospect of being examined for discovery will undoubtedly trigger some degree of anxiety for most people. The presence of an opposing litigant will no doubt increase that level of anxiety. Such general anxiety does not rise to the level of justifying the exclusion of a party to the litigation: York University at para. 15.

[12] See also: Elzen v Kelly, 2016 ONSC 4093, at para. 6, and D’Onofrio v. Kaszas, 2019 ONSC 11, at para. 20.

[13] The case law also indicates that allegations of intimidation or fear must be supported by the evidence on an objective basis. In Redekop v. Redekop, one party refused to attend on the basis that he would be intimidated if the opposing party was present for examination for discovery. At para 13, the Court held that, in order to exclude a party:

It is not enough that the respondent feels or fears intimidation. That is not the test. There must be an objective basis for that feeling or fear; otherwise, the sensibilities of the respondent, no matter how heightened or unfounded, would operate to defeat the substantive right of the applicant to be present during the examination for discovery of the respondent.

[14] While most cases consider exclusion of a party on the basis of intimidation, a few cases have suggested that the analysis may be somewhat different where there is an allegation of sexual assault, particularly of a minor, and the person being examined does not want to see his or her alleged assailant. For example, in Elzen, Goldstein J. stated, at para. 6:

I accept that Ms. Den Elzen may be uncomfortable and experience anxiety if Mr. Kelly is present. That is not, however, the same thing as Mr. Kelly causing discomfort and anxiety by some act of intimidation. It is not enough that Ms. Den Elzen finds Mr. Kelly’s mere presence difficult to cope with. I might take a very different view in, for example, the circumstances of a sexual assault complainant being in the same room as the alleged perpetrator of the assault. (Emphasis added)

[15] See also: J.C. v. Ansell, [1994] O.J. No. 1741 (Gen. Div.), at para. 16; F.(K.) v. White, 2000 CarswellOnt. 856, [2000] O.J. No. 922, at para. 41.

[16] As I read the cases, the difficulty with the analysis of this issue is that the cases appear to equate exclusion of a party with testimonial accommodation. This equation fails to account for the technological innovations that permit a party to observe the examination for discovery even though the party is not in the same room as the person being discovered. Historically, when a party was “excluded” he or she would not be able to see and hear the examination for discovery as it was happening. That is no longer the case, and the applicable principles should evolve to take this into account. Both the party’s interest in observing the examination for discovery and the witness’ interest in not seeing the opposing party can often be accommodated by commonly available technology. Testimonial accommodation does not require party exclusion.

[17] In this regard, it is instructive to consider how this issue has been handled in the criminal law context, where the accused has a constitutional and statutory right to be present in court during the whole of his or her trial, but accommodations are commonly, if not routinely, made for alleged sexual assault victims who are afraid to come face to face with their alleged assailant. The Supreme Court of Canada has recognized that an accused has no right to have a face-to-face confrontation with the complainant, and that an accused’s right to a fair trial is not infringed by allowing a child complainant to give evidence from behind a screen: R. v. Levogiannis, [1993] 4 SCR 475.

[18] Section 486.2 of the Criminal Code, R.S.C. 1985, c. C-46 provides testimonial accommodation for children and vulnerable adult complainants in sexual assault and other cases. Section 486.2 provides:

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

[19] Accommodation of children under s. 486.2(1) is presumptive. Section 486.2(3) lists a number of factors to be considered when making a discretionary order for an adult witness under subsection (2), including the age of the witness, the nature of the offence, and the relationship between the witness and the accused.

[20] Pursuant to s. 486.2(5), where a witness testifies outside of the court room, arrangements must be made for the accused (and the judge and jury) to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

[21] Pursuant to these provisions, witnesses may be permitted to testify by closed-circuit television or from behind a screen. The accused is not “excluded” from the court. Both of these accommodations permit the accused to see the witness testify but shield the witness from seeing the accused.

[22] Orders are made under subsections (1) or (2) in sexual assault and other criminal cases even though the accused is presumed innocent. Section 486.2(6) provides that no adverse inference can be drawn from the fact that an order is, or is not, made under subsections (1) or (2).

[23] The constitutional validity of s. 486.2 was upheld by the Supreme Court of Canada “for the reasons given by the British Columbia Court of Appeal” in R. v. J.Z.S., 2010 SCC 1.

[24] In upholding s. 486.2, the British Columbia Court of Appeal decision (R. v. J.Z.S., 2008 BCCA 401) stated, at para. 43:

I am satisfied that s. 486.2 is merely the next step in the evolution of the rules of evidence. These rules seek to facilitate the admissibility of relevant and probative evidence from children and vulnerable witnesses while maintaining the traditional safeguards for challenging the reliability of their evidence. Rules of evidence must be construed in light of a criminal justice system that encourages the goal of “attainment of truth”. Over the years, the use of testimonial aids has been subject to ongoing procedural and evidentiary changes, which may continue to evolve. In this case, the changes are not in conflict with constitutionally guaranteed principles of fundamental justice. The presumptive nature of s. 486.2 does not dispense with any of the traditional safeguards for ensuring that an accused receives a fair trial.

[25] If the witness is to be examined “outside the court room”, s. 486.2 does not indicate whether the cross-examining counsel is in the same room as the witness when the cross-examination is conducted. This has been the topic of some discussion in the case law, and the consensus appears to be that the location of the cross-examining counsel is within the discretion of the trial judge: R. v Belem, 2017 ONSC 2213, at paras. 35 – 38; R. v. Mattu, 2019 ONCJ 517, at paras. 20 – 21.

[26] Given the availability of these testimonial accommodations in the criminal law context, there is no reason why, in appropriate cases, similar testimonial accommodations cannot be offered to a witness in a civil proceeding without compromising the opposing party’s right to be present during the examination for discovery. The plaintiff has a right to protect his interests by observing the conduct of the examination for discovery, but this does not translate into a right to a “face-to-face confrontation” with the defendant.

Analysis

[27] The defendants have filed affidavits from Mr. C.H.’s family physician and a clinical psychologist. The family physician has provided his opinion that Mr. C.H. should not be in the same room as the plaintiff because it will cause him significant stress and depression. He states that being in the presence of the plaintiff would be intimidating, stressful and deeply disturbing.

[28] The clinical psychologist assessed Mr. C.H. on February 5, 2019, and states that it would pose serious mental health repercussions for Mr. C.H. to be in the proximity of the plaintiff. It is his clinical opinion that should Mr. C.H. have to face his alleged abuser it would be significantly detrimental to his psychological state and functioning and would trigger his previously diagnosed Post Traumatic Stress Disorder and depression.

[29] Neither the physician nor the clinical psychologist was cross-examined on their respective affidavits.

[30] I consider these affidavits with some caution, because I recognize that it is very easy for any health practitioner to express concern that their patient may feel anxiety or stress when examined for discovery. As indicated above, general discomfort or anxiety is not sufficient to request testimonial accommodation.

[31] But this brings me back to Goldstein J.’s comment in Elzen that he might take a different view in “the circumstances of a sexual assault complainant being in the same room as the alleged perpetrator of the assault”. In Levogiannis, the Supreme Court of Canada recognized, at para. 14, that “young complainants often suffer tremendous stress when required to testify before those whom they accuse”. The Court also accepted social science evidence that “testifying in confrontation with the alleged abuser may in many cases cause child victim-witnesses to refuse to testify or to testify less completely than they are capable”.

[32] See also: R. v. L.(D.O.), [1993] 4 S.C.R. 419, at para. 38, which recognized the “trauma that children called to testify in cases of sexual abuse are forced to endure”. In that case, the Supreme Court of Canada upheld the constitutional validity of s. 715.1 of the Criminal Code, which provides that in any proceeding relating to certain sexual offences “in which the complainant was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant, while testifying, adopts the contents of the videotape.” The Court stated, at para. 42:

Section 715.1 of the Criminal Code acts to remove the pressure placed on a child victim of sexual assault when the attainment of “truth” depends entirely on her ability to control her fear, her shame and the horror of being face to face with the accused when she must describe her abuse in a compelling and coherent manner.

[33] The medical evidence in this case must be viewed in the context of these and other Supreme Court cases that recognize the trauma that sexual abuse victims may suffer if forced into a face-to-face confrontation with their alleged assailant. This is not simply the generalized anxiety or stress that must be endured by all other witnesses.

[34] While Mr. C.H. is no longer a minor, he is now just 19 years of age, and the alleged sexual assault occurred when he was only 14 years of age. In these circumstances I accept the medical evidence submitted by the defendants and find that this is an appropriate case in which to provide some testimonial accommodation when Mr. C.H. is examined for discovery.

[35] That said, I understand the plaintiff’s reluctance to consent to his exclusion from the examination for discovery. The defendants take the position that the plaintiff must be excluded from the examination for discovery because he sexually assaulted Mr. C.H. in November 2014. The plaintiff denies that this sexual assault ever occurred; indeed, his defamation claim is based on the premise that this allegation is false. From the plaintiff’s perspective, acceding to the defendants’ request that he forgo his right to attend the examination for discovery on this ground would seem like an admission.

[36] Like s. 486.2(6) of the Criminal Code, however, no adverse inference can be drawn from the fact that a testimonial accommodation has been ordered. A testimonial accommodation is provided out of an abundance of caution. A party in a civil proceeding, like an accused in a criminal proceeding, may agree to such an accommodation on a without prejudice basis. Consenting to a testimonial accommodation is not an admission.

Conclusion

[37] Based on the foregoing, I make the following order:

[38] The defendant, C.H., will be examined for discovery in a separate room from the plaintiff. The examination for discovery will be available to the plaintiff by closed-circuit television or other electronic means so that he can watch the examination for discovery in real time. The plaintiff’s lawyer may choose between conducting the examination for discovery in the same room as the Mr. C.H., or remaining in the same room as his client and conducting the examination by closed-circuit television. Counsel for the parties will coordinate the arrival of their clients so that Mr. C.H. does not see the plaintiff before or after the examination.

[39] Counsel for the defendants has advised that the additional cost for this accommodation is approximately $250, and has agreed that, as the party requesting the accommodation, the additional cost will be paid by the defendants.

[40] The parties have also agreed that the examination for discovery of the defendants will be scheduled and completed before June 30, 2020.

[41] If the parties are unable to agree on costs, the defendants may serve and file costs submissions of no more than three pages, plus costs outline and any offers to settle, within 20 days of the release of this decision. The plaintiff may file responding submissions on the same terms within a further 15 days.

Justice R.E. Charney

Released: January 13, 2020