Court File and Parties

Citation: Jane Doe 622952 v. Zhang, 2020 ONSC 4416 Court File No.: CV-19-622952 Date: 2020-07-20 Superior Court of Justice – Ontario

Re: JANE DOE 622952, Plaintiff And: BOYUAN ZHANG, Defendant

Before: Sanfilippo J.

Counsel: Gregory Ko, for the Plaintiff Stefan Juzkiw, for the Defendant

Heard: July 14, 2020

Endorsement

[1] The Plaintiff requested a Chambers Appointment, which was conducted on July 14, 2020 in accordance with Rule 50.13(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In accordance with Rules 50.13(2)(b) and 1.08, the Chambers Appointment was conducted remotely, by video conference.

[2] The purpose of the Chambers Appointment was to amend an existing timetable regarding the development of this action.

[3] On January 17, 2020, J.E. Ferguson J. issued an Order (the “January 2020 Order”) establishing a litigation timetable as follows:

(a) each party was ordered to deliver draft unsworn affidavits of documents, with copies of Schedule “A” productions, by January 31, 2020, and sworn copies by March 24, 2020; (b) the examinations for discovery were ordered to occur on March 24 and 25, 2020; (c) the mandatory mediation in this action was ordered to be conducted by June 30, 2020.

[4] Both parties delivered their draft unsworn affidavits of documents on a timely basis.

[5] The examinations for discovery were scheduled to be conducted on March 24 and 25, 2020, but were cancelled due to the Province of Ontario’s declaration of a state of emergency resulting from the COVID-19 pandemic. The mandatory mediation was not conducted by June 30, 2020.

[6] The parties were not able to agree on a timetable for the progression of this action, due to the following:

(a) the Defendant took the position that the Plaintiff had not made full documentary production; (b) the Defendant sought to bring a motion for security for costs; (c) the Defendant objected to the examinations for discovery proceeding by video conference as opposed to ‘in person’.

[7] As the parties had delivered unsworn affidavits of documents, the issue of completeness of the parties’ documentary disclosure can be addressed simply by delivering sworn affidavits of documents, by which each party will depose to the completion of the requirement of documentary disclosure, under Rule 30.02. The parties may then cross-examine at the examination for discovery on the sufficiency of the documentary production, as they consider advisable.

[8] The Defendant’s proposed motion for security for costs is based on the allegation that the Plaintiff is ordinarily resident outside the Ontario. His lawyer fairly stated that motions of this nature are often brought after examinations for discovery to allow for the development of a record that will allow for the merits assessment involved in the court’s consideration of whether to order the posting of security for costs: Rule 56.01; Chachula v. Baillie (2004), 2004 ONSC 27934, 69 O.R. (3d) 175, at paras. 12-16.

[9] On this ground, on the basis that the January 2020 Order did not contain any scheduling for a motion for security for costs, and because it is most efficient that all motions that the parties seek to bring before the Master be brought at the same time, I direct that any motion for security for costs may be brought after the examinations for discovery are completed, together with any motion on discovery issues such as for undertakings or refusals. On the issue of the examination for discovery process, I encourage the parties to consider the use of objections in the place of refusals, in accordance with Rule 34.12.

[10] The Plaintiff sought an order that the examinations for discovery could proceed out-of-court by video conference, if requested by any party. The Defendant objected to any examinations for discovery proceeding remotely, by video conference, on the basis that this action involves credibility issues that, he contended, are best assessed by ‘in person’ examination. I did not accept this submission because the assessment of the parties’ credibility will be made at trial, and the purpose of the examination is to discover evidence or obtain admissions that will assist in this determination.

[11] Rule 1.08 provides that the conduct of “steps in a proceeding” may take place by telephone or video conference on the consent of the parties, in accordance with Rule 1.08(2), or the “court may, on motion or on its own initiative, make an order directing a telephone or video conference on such terms as are just”: Rule 1.08(3).

[12] In Arconti v. Smith, 2020 ONSC 2782, F.L. Myers J., commented, at para. 22, that Rule 1.08(3) was amended in 2008 to allow for the use of remote proceedings at the court’s initiative, consistent with the use of remote technology in court process, where suitable. I agree with Justice Myers’ finding that an examination for discovery is a “step in a proceeding” that can be ordered to be conducted by video conference.

[13] Further, the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, Regarding the Expanded Operations of the Ontario Superior Court of Justice, dated May 13, 2020 and effective May 19, 2020, and the Toronto Region’s “Toronto Expansion Protocol for Court Hearings During the COVID-19 Pandemic”, which provide for the use of video conference technology in civil pre-trial conferences, case conferences, and long and short motions and applications, where necessary. This is further to the use of this technology as a tool to advance litigation when the availability of ‘in person’ attendance is compromised by public health issues resulting from the pandemic.

[14] I conclude, in accordance with Rule 1.08(3), that the examinations for discovery in this action may be conducted remotely by video conference at the request of any party. I make a similar determination in regard to the mandatory mediation required by Rules 21.1.01 and 21.1.04. This mediation is, in my view, clearly a “step in a proceeding’ - indeed a mandatory step - and can be conducted in this case by video conference, if a party so requests by reason of the pandemic.

[15] I thereby order that the Timetable provided by the January 2020 Order is varied and that the following Timetable is implemented for the progression of the procedural steps in this action:

(a) The parties shall deliver sworn affidavits of documents by July 24, 2020; (b) The parties shall complete examinations for discovery by September 30, 2020. The examinations for discovery shall be conducted remotely by video conference, if requested by any party; (c) The parties shall, by November 30, 2020, comply with all undertakings provided at the examinations for discovery and shall, in accordance with Rule 37.10(10), serve an undertakings and refusals chart setting out any questions said to be outstanding; (d) The parties shall, by December 30, 2020, bring any motion for undertakings or questions refused and/ or any motion for security for costs; (e) The mandatory mediation shall be conducted by January 29, 2021. The mandatory mediation shall proceed remotely by video conference if requested by any party by reason of the pandemic.

[16] Notwithstanding Rule 59.05, this Order is effective from the date it is made and is enforceable without any need for entry and filing. The requirement of preparation, issuance and entry of a formal order is hereby dispensed with, in accordance with Rule 77.07(6).

Sanfilippo J. Date: July 20, 2020