Court File and Parties

COURT FILE NO.: 17-00073750 DATE: May 12, 2020

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FALSETTO v. FALSETTO et al

BEFORE: Master Fortier

COUNSEL: Carol Craig and Raymond Murray for the Plaintiff Email: Carol.Craig@nelliganlaw.ca Phone: (613) 683-8112

Thomas Conway and Ben Grant for the Defendants, Email: TConway@conway.pro Phone: (613) 288-0149

HEARD: May 12, 2020

Case Conference Endorsement

[1] This case conference was scheduled to assign this proceeding to active case management under Rule 77 as well as to deal with issues related to examinations for discovery and costs thrown away of the examinations for discovery cancelled in February 2020.

[2] The proceeding was commenced in August 2017. Discoveries in this matter have yet to occur. They have been cancelled on three different occasions for various reasons, including new counsel being retained for the defendants, production of documents close to the date for rescheduled examinations for discovery and finally, COVID-19.

[3] The Defendants wish to proceed to examinations for discovery by videoconference as in-person examinations are not currently possible due to the implementation of social distancing in response to COVID-19. The Defendants are seeking to set aside 4 days for discoveries (2 days for the Plaintiff and 2 days for the Defendants) to be held by July 17, 2020. The July 17th deadline was suggested as the Defendants wish to proceed with this matter expeditiously. The Plaintiff is 90 years old and has underlying medical issues.

[4] Plaintiff’s counsel suggests that given the Covid-19 pandemic, discoveries ought to be completed by written interrogatories or delayed until in-person examination for discovery can resume when the requirement for social distancing has ended. Counsel for the Plaintiff objects to having the Plaintiff examined by way of videoconference arguing that it would be difficult to support, prepare or advise him either prior to, or during his examination.

[5] The Defendants do not wish to examine the Plaintiff by written questions and answers as there are significant issues of credibility in this proceeding.

[6] Whether an examination for discovery ought to be required by way of videoconference rather than in person during the COVID-19 stipulations for social distancing was dealt with by Myers J. in Arconti v. Smith, 2020 ONSC 2782. As stated by Myers J.:

33 In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency. Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education. Parties and counsel may require some delay to let one of both sides prepare to deal with unfamiliar surroundings.

[7] In ordering that the Plaintiff’s examination for discovering proceed by videoconference, Myers J. found that the benefits of proceeding by way of videoconference outweigh the risks:

44 In my view, the plaintiffs’ concerns with the prospect of conducting an examination remotely do not outweigh the desirability of proceeding with this matter and do not justify further delay. These actions have been outstanding for several years. The defendants are entitled to have their motion heard just as the plaintiffs are entitled to seek compensation. The plaintiffs’ concerns, in the main, are soluble either by creative alternatives or by increased familiarity with the technology. I do not accept that anything will be lost that is not more than offset by the proportionality of proceeding efficiently and affordably.

[8] As in Arconti, in my opinion, the desirability of proceeding with examinations for discoveries of the parties by way of videoconference outweigh the Plaintiff’s concerns. There are solutions to help with the Plaintiff’s apprehension, including providing time for the parties to prepare for the discoveries. Discovery by written questions and answers is not acceptable to the Defendants. To wait until the social distancing requirements are over to have in-person discoveries will create a further delay which, in my view, is not reasonable in light of the Plaintiff’s age and health.

Orders

This court orders as follows:

1. On consent of the parties, this proceeding is assigned for case management pursuant to Rule 77.
2. The examinations for discovery of the Plaintiff and the Defendants shall proceed by videoconference to be held by August 7, 2020. Unless otherwise agreed by the parties, four days shall be set aside.
3. Counsel for the parties may make submissions regarding costs thrown away arising from the cancellation/adjournment of the discoveries scheduled for February 11-14, 2020 as follows: a) The Defendants shall serve their written submissions by May 22, 2020. The submissions shall not exceed 5 pages in total, double spaced and in 12-point font. b) The Plaintiff shall serve his responding written submissions by May 29, 2020. The submissions shall not exceed 5 pages in total, shall be in 12-point font and double spaced. c) The Defendants may serve reply submissions by June 3, 2020. The submissions shall not exceed 2 pages in total, double spaced and in 12-point font. d) The parties shall file their costs submissions with the Master’s Office by June 5, 2020.
4. This order is effective without further formality.

Signed electronically by Master Fortier (COVID-19)