Court File and Parties

Court File No.: 14-61078 Date: 2020-04-27 Ontario Superior Court of Justice

Between: Ihab Dia, Faten Zeineddine, Samer Dia (a minor by his litigation guardian Ihab Dia), Anisah Dia (a minor by her litigation guardian Ihab Dia), Ali Dia (a minor by his litigation guardian Ihab Dia), and Mohamed Dia (a minor by his litigation guardian Ihab Dia) Plaintiffs

• and - Calypso Theme Waterpark, Jacques Bui, Jamie Crowder, Khamea Louangrath, Paolo Messina and Shaun Wheeler Defendants

And Between: Paolo Messina Plaintiff by Counterclaim

• and - Samer Dia and Mahamed Zeineddine Defendants by Counterclaim

Counsel: James Bowie, for the Plaintiffs M. James McMahon, for the Defendant Paolo Messina M. James McMahon, for the Plaintiff by Counterclaim James Bowie for the Defendants by Counterclaim

Heard: March 10, 2020, at Ottawa

Reasons for Decision: Summary judgment motion

Before: H.J. Williams, J.

Overview

[1] Paolo Messina is asking for summary judgment dismissing the claim against him.

[2] Samer and Anisah Dia allege that Mr. Messina was involved in an assault against them at the Calypso Theme Waterpark, east of Ottawa, on July 3, 2013.

[3] Mr. Messina admits that he was in the vicinity of the alleged assault but denies any involvement, other than having been assaulted himself. Mr. Messina says the plaintiffs have no evidence that he was involved in the alleged assault or responsible for any of their injuries.

[4] Mr. Messina crossclaimed against the other defendants. He also counterclaimed against Samer Dia and added a defendant by counterclaim, Mohamed Zeineddine. The counterclaim against Mr. Zeineddine has been settled. At the hearing of the motion, Mr. Messina undertook to discontinue the crossclaim and the counterclaim if his request for summary judgment is granted and the claim against him is dismissed.

[5] Although several of the other defendants had filed statements of defence, Mr. Messina and Calypso are the only ones who took steps to defend the action after the pleadings were closed.

The Evidence

[6] Subrule 20.01(3) permits a defendant, after delivering a statement of defence, to “move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.”

The Evidence Relied on by Mr. Messina

[7] Mr. Messina did not swear an affidavit in support of his motion. He relied on three affidavits from his lawyer’s law clerk, one of which attached the transcript of Mr. Messina’s examination for discovery as an exhibit.

Is Mr. Messina entitled to rely on the transcript of his own examination for discovery?

[8] Subrule 39.04(1) of the Rules of Civil Procedure allows a party to use the examination for discovery evidence of an adverse party on a motion, but subrule 39.04(2) precludes a party from using the party’s own discovery evidence, unless the other parties consent.

[9] Mr. Messina’s lawyer argued that because the plaintiffs referred to and relied on Mr. Messina’s discovery evidence in their responding factum, they implicitly consented to Mr. Messina’s reliance on it.

[10] For the following reasons, I disagree and I find that Mr. Messina is not entitled to rely on his discovery transcript.

[11] In the plaintiffs’ response to a December 14, 2018 request to admit, the lawyer who represented them at the time had taken the position, properly, that Mr. Messina was “not entitled to adduce or seek to rely on self-serving statements that may have been made at his own examination for discovery.” At the hearing of the motion before me, the plaintiffs’ current lawyer did not take as unequivocal a position but argued that Mr. Messina’s transcript should be given little or no weight because it was attached to a law clerk’s affidavit and not to an affidavit sworn by Mr. Messina.

[12] A party may not rely on its own discovery evidence on a motion, without the consent of the adverse parties, because doing so would allow the party to shield itself from a comprehensive cross-examination. An adverse party cannot cross-examine on a filed transcript as it can on an an affidavit. Further, although Mr. Messina’s lawyer argued that Mr. Messina’s evidence had been thoroughly tested by the plaintiffs at his examination for discovery, at an examination for discovery, restrictions apply to cross-examination questions aimed solely at a witness’s credibility which do not apply to a cross-examination on an affidavit. (Subrule 31.06(1)(b); Kolosov v. Lowe’s, 2015 ONSC 4761, at para. 34.)

[13] This situation is different from a motion in which a moving party relies on the discovery evidence of an adverse party. This is a permitted use of discovery evidence on a motion, under subrule 39.04(1). When a moving party relies on a responding party’s discovery evidence, the responding party is also entitled to rely on the evidence the moving party puts before the court. (Pereira v. Contardo, 2014 ONSC 6894 (Div. Ct.) at para. 43) Further, absent a clear statement by the moving party that it only intends to rely on certain portions of the adverse party’s transcript, it is open to the responding party to operate on the assumption that the entire transcript is in evidence as part of the moving party’s record (Lawless v. Anderson, 2010 ONSC 2723, at para. 14, aff’d 2011 ONCA 102.)

[14] In the case before me, Mr. Messina was attempting to rely on his own discovery evidence, in breach of subrule 39.04(2). In Lana International Ltd. v. Menasco Aerospace Ltd., 50 O.R. (3d) 97 at para. 5, the Court of Appeal noted that the prohibition against reliance on a party’s own discovery evidence is particularly important in the context of a summary judgment motion because success on the motion may result in “the ultimate prize”: success in the action. It would be unfair to the plaintiffs in this case if I were to treat their after-the-fact reliance on certain portions of a transcript Mr. Messina was not entitled to rely on without their consent, as their consent to Mr. Messina’s reliance on the entire transcript.

[15] To put his discovery evidence before the court, Mr. Messina was not without options. He could have sworn an affidavit that incorporated all or part of his discovery evidence; this would have permitted plaintiffs to cross-examine him. (Pereira v. Contardo, 2014 ONSC 6894 (Div. Ct.) at para. 47.)

[16] Attaching his transcript to a law clerk’s affidavit had no effect on Mr. Messina’s right to rely on the transcript. The prohibition against the use of the transcript is based on the adverse party’s inability to cross-examine on it and, although the law clerk could have been cross-examined on her affidavit, she could not have been cross-examined on Mr. Messina’s words in the transcript.

[17] For these reasons, I find that Mr. Messina is not entitled to rely on his discovery transcript as evidence in support of this motion. I will allow the plaintiffs to rely on the excerpts of the transcript they reproduced in their factum, even though they did not file a copy of the transcript or any portions of it; the plaintiffs were obviously relying on the copy of the transcript Mr. Messina had filed, albeit a transcript I have now concluded Mr. Messina had no right to file. Mr. Messina did not ask to rely on the excerpts of the transcript relied on by the plaintiffs or on any other excerpts to qualify or explain the excerpts relied on by the plaintiffs. Had he done so, I likely would have permitted him to do so, as this would have been consistent with the procedure for use of a discovery transcript at trial (see subrule 31.11(3).)

The Evidence Relied on by the Plaintiffs

[18] The plaintiffs did not deliver any evidence in response to Mr. Messina’s motion. As I have noted, in their factum, they reproduced some excerpts from Mr. Messina’s discovery transcript.

The Plaintiffs’ Position in Response to the Motion

[19] The plaintiffs made the following arguments in response to Mr. Messina’s motion:

i. That their claim against Mr. Messina will turn on credibility, that there is evidence that Mr. Messina is not credible and that there is, therefore, a genuine issue requiring a trial; ii. That Mr. Messina’s failure to swear and file an affidavit should weigh against his request for summary judgment; iii. That, in the context of this motion, the court is not in a position to weigh Mr. Messina’s claim that he was not involved in the alleged assault against the evidence of other witnesses, including the evidence of the individual co-defendants whose evidence was not available at the motion but who could be summonsed to testify at trial; iv. That it would be inappropriate for their claim against Mr. Messina to be decided on a motion because dismissing the action against Mr. Messina would not dispose of the entire action. The plaintiffs argue that when the litigation as a whole is taken into account, it would not be in the interest of justice to dismiss the claim against only one defendant; and v. That Mr. Messina has failed to prove, on a balance of probabilities, that he was not involved in the alleged assault.

Analysis

[20] Summary judgment motions must be granted whenever there is no genuine issue requiring a trial: Subrule 20.04(2)(a); Hryniak v. Mauldin, 2014 SCC 7, at para. 47.

[21] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result. (Hryniak, at para. 49.)

[22] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. (Hryniak, at para. 50.)

[23] Although there was no affidavit evidence from Mr. Messina, based on the evidence filed on his behalf and in the absence of responding evidence from the plaintiffs other than excerpts from Mr. Messina’s discovery transcript, I am satisfied that there is no genuine issue requiring a trial in respect to the claim against Mr. Messina and that the claim against him should be dismissed.

[24] Turning first to Mr. Messina’s failure to swear an affidavit, on a motion for summary judgment, an affidavit may be made on information and belief but the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. (Subrule 20.02(1).) I am not, however, prepared to draw a negative inference against Mr. Messina on this basis. Mr. Messina attempted to provide evidence of his personal knowledge by filing his discovery transcript. Having refused to allow him to do so, I will not penalize him further for not having provided evidence of his personal knowledge; his error was in attempting to rely on evidence on which he could not be cross-examined, not in attempting to avoid filing evidence of his personal knowledge.

[25] The plaintiffs argue that Mr. Messina has not proven that he was not involved in the alleged assault. He is not required to do so. Mr. Messina’s burden on this motion is to satisfy me that there is no issue requiring a trial in respect of the plaintiffs’ claim against him because the plaintiffs cannot prove that he was involved in the alleged assault. He has met that burden.

[26] I agree with the plaintiffs that Mr. Messina’s admission on discovery that he had lied to police about his truck keys damages his credibility. However, Mr. Messina’s credibility has no bearing on the fact that neither the plaintiffs nor any of the witnesses to the alleged assault identified Mr. Messina or a man fitting his description as having been involved.

[27] In her first affidavit, Mr. Messina’s lawyer’s law clerk described Mr. Messina as not having any tattoos. The exhibits to the law clerk’s second and third affidavits are photographs of Mr. Messina, taken by Mr. Messina’s mother, which show a Caucasian man with no tattoos on his back, chest or arms. A photograph of a group of young men, many of whom are heavily tattooed, was attached to the law clerk’s first affidavit and was admitted to have been taken at the water park the day of the alleged assault. Mr. Messina identified himself in the photograph. Mr. Messina appears to be wearing dark-coloured, patterned shorts. No tattoos can be seen on the visible portions of Mr. Messina’s chest and shoulders. I accept the evidence that Mr. Messina is Caucasian, that he has no tattoos and that, the day of the alleged assault, he was wearing dark-coloured shorts.

[28] When the plaintiffs and the other witnesses described the men involved in the alleged assault, none described a Caucasian man who did not either have tattoos or wear white shorts. Samer Dia said that an Asian man and a Caucasian man had assaulted him and that the Caucasian man had body tattoos. Anisah Dia said that she saw Samer talking to “three guys” who were big and had tattoos. Anisah did not see the initial assault on her brother and described the man who attacked her as being Asian and small with a tattoo on his arm. Mr. Zeineddine, who is Samer and Anisah’s uncle, said that he saw a white man attack Samer, but that there were two white men involved, one who was wearing white trunks and another who had tattoos on his arms and across his chest. Mr. Zeineddine’s fiancé, Carla Bruno, said three men were involved, an Asian man who may have had tattoos on his arms and two white men, one who wore white and grey shorts and both of whom had tattoos.

[29] It is significant that, although Mr. Messina identified himself in the group photograph taken at the water park on July 3, 2013, which was included in his motion record and to which I referred above, none of the plaintiffs identified him as one of the men involved in the alleged assault, even in their response to this motion.

[30] The plaintiffs argued that the evidence that may be available at trial, such as that of the other individual defendants, may satisfy the trier of fact that Mr. Messina was involved in the alleged assault. This argument has no merit. On a motion for summary judgment, the responding party may not rely on the prospect of additional evidence that may be tendered at trial; the respondent must put its best foot forward: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878 (Ont. C.A.).

[31] The Court of Appeal for Ontario has cautioned against motions for partial summary judgment. In Butera v. Chown, Cairns LLP, 2017 ONCA 783, for example, the Court held that a “motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.”

[32] While dismissing the claim against Mr. Messina does not dispose of the entire action, I am satisfied that it is the just and most cost-effective result in this case. I am also satisfied that there is no significant risk that inconsistent findings will be made when the balance of the action is tried. My finding that the plaintiffs have failed to identify Mr. Messina as having been involved in the alleged assault does not require me to make any findings in respect of whether an assault took place, if so, what precipitated the assault, who was involved in the assault or the nature and extent of any injuries. If the plaintiffs believed that evidence might materialize to prove that Mr. Messina was involved in the alleged assault, they waited too long to uncover it; their deadline for doing so was the filing deadline for their materials in response to this motion.

Conclusion and Costs

[33] Having concluded that the plaintiffs’ claim against Mr. Messina does not raise a genuine issue requiring a trial, Mr. Messina’s motion is granted and the plaintiffs’ claim against Mr. Messina is dismissed.

[34] Mr. Messina’s lawyer undertook to discontinue Mr. Messina’s crossclaim and counterclaim if his motion was successful. As the individual defendants who filed statements of defence subsequently stopped defending the action, they will have incurred no costs in respect of the crossclaim. The crossclaim against all of the individual defendants shall, therefore, be dismissed without costs. If Mr. Messina and Calypso cannot agree on Calypso’s costs in respect of the discontinued crossclaim, subrule 23.05(1) shall apply, Calypso may make its motion in writing and I will remain seized and decide the issue. The costs of the counterclaim may be addressed in the parties’ submissions in respect of the costs of Mr. Messina’s motion and the dismissed action against him.

[35] I encourage the plaintiffs and Mr. Messina to settle the costs issues. If they are unable to do so:

i. Within 14 days of the date of this decision, at his option, Mr. Messina may deliver written costs submissions of no more than three pages in length to supplement the costs outlines he filed at the hearing of the motion. ii. Within 14 days of receipt of Mr. Messina’s written submissions or, if Mr. Messina does not deliver further written submissions, no later than 28 days after receipt of these reasons, the plaintiffs may deliver written submissions of no more than three pages in length. iii. Mr. Messina may then deliver any reply submissions of no more than three pages in length within seven days of the date of receipt of the plaintiffs’ submissions. iv. These notices and/or submissions shall be filed by sending them to my attention, by email, to the following email address: SCJ.assistants@ontario.ca.

Released: April 27, 2020