Superior Court of Justice - Ontario

COURT FILE NO.: CV-18-599621

MOTION HEARD: 20200123

RE: Junxia Yu, Responding Party Plaintiff

AND:

Christopher Linnell, Robert Linnell and Ute Linnell, Moving Party Defendants

BEFORE: Master Jolley

COUNSEL: Tamara Markovic, Counsel for the Moving Party Defendants Orlando Vinton, Counsel for the Responding Party Plaintiff

HEARD: 23 January 2020

REASONS FOR DECISION

[1] The defendants’ motion and the plaintiff’s cross motion arise out of the aborted examination for discovery of the plaintiff on 2 October 2020.

[2] It is undisputed that Junxia Yu (“Yu”) refused to be examined for discovery on 2 October 2019 when she discovered her ex-husband the defendant Christopher Linnell (“Christopher”) in the examination room. Yu seeks an order that Christopher be barred from attending her examination. Christopher seeks an order permitting him to attend either as a party or, in the alternative, as agent for his parents, the defendants Robert and Ute Linnell. Each party argues that the other should bear the costs of the aborted examination, the next examination and the two resultant motions as a result of their unreasonable conduct.

[3] The plaintiff makes three arguments in support of her motion. First, Christopher is no longer a party to this action and had and has no right to be present at her examination. Second, Yu, through her counsel, reached an agreement with the defendants on the conduct of the examinations and it was agreed that Robert and Ute would attend Yu’s examination. There was no mention of Christopher attending and she would not have agreed to any arrangement that he be present. She simply asks that the defendants be held to the bargain they negotiated. Third, Christopher should not be granted leave to act as agent for his parents as Yu is afraid of and intimidated by him. His request for leave is being made in bad faith with its sole purpose to intimidate Yu while she is being examined.

[4] The defendants argue that Christopher has a right to attend the examination as a party and, alternatively, as agent for his parents. His parents are virtual strangers to the facts alleged by Yu and he is the only individual who has sufficient knowledge to respond to the plaintiff’s claim for possession of the home owned by his parents. If he requires leave to attend, there is no reason to refuse that discretion as there is no credible evidence that he has caused harm to the plaintiff or that she is afraid of him. They argue that they offered a reasonable accommodation to Yu by ultimately agreeing to conduct her examination on October 2 without Christopher present and she refused. They now offer the alternative of him viewing the examination by video conference, if necessary.

[5] By way of background, Christopher met Yu in China in 2011. They married in 2013, moved to Canada in May 2015 and took up residence in an investment property in Toronto (the “Property”) owned by Robert and Ute, who live in the United Kingdom. Christopher and Yu separated in August 2017 and Christopher moved out of the Property in April 2018. In May 2018 Yu changed the locks. Robert and Ute demanded copies of the keys, which Yu refused to provide. They then requested that she leave the Property by 31 August 2018, which she also refused. In November 2018 Christopher commenced divorce proceedings and a divorce was granted in January 2019. Yu brings this action alleging that Robert and Ute promised to convey the Property to her and Christopher if they moved back to Canada and she relied on that promise to leave her life in China.

Issue 1: Was Christopher entitled to attend the examination of Yu as of right?

[6] In 2019, Christopher brought a motion to have this action dismissed as against him, to which Yu consented. Her action for ownership of the Property thereafter has proceeded solely against the owners of the Property, Robert and Ute. The order issued by Justice Faieta on 7 May 2019 which dismissed the action as against Christopher also provided that he would be bound by any judicial determination made in the action regarding the relief claimed by Yu in her statement of claim.

[7] I was presented with no case law in support of the proposition that a party against whom an action is dismissed continues to have any right of participation in that action. When Christopher obtained the dismissal order, he did not attempt to reserve any participatory rights for himself and, I suspect, he would not have been successful had he tried. He requested an order removing him from the action and that is what he received. He was no longer a party and was neither subject to being examined nor entitled to attend at Yu’s examination in the face of her objection to his presence.

[8] I note that in Sun Life v Hellerman 2001 CarswellOnt 1419, Mr. Hellerman’s third party claim had been dismissed and, as a result, he had no standing as a party to be present at the third party examinations for discovery. Because he no longer had a right to attend, he and Mrs. Hellerman sought an order that he be permitted to attend at the examination of the third party, as agent for his wife, Mrs. Hellerman. The same principle applies here. The claim against Christopher has been dismissed and he has no standing to be present at the ongoing examinations for discovery.

[9] Christopher argues in the alternative that he should have been allowed to attend the October 2019 examination as the agent for his parents. Christopher argues that he wanted to support his parents while they attended Yu’s examination. He also stated that he wished to assist their lawyer in the examination as he was the only party who had any first hand information about the allegations made by Yu.

[10] As noted in Home v. Canada 2003 FC 1035 at paragraph 16:

“only the parties and their respective counsel, or in the case of the corporation, its agent, may attend an examination for discovery unless the parties have consented to the presence of a non-party, or the examining officer has granted the non-party leave to be present. In this jurisdiction, the local registrar or deputy registrar would normally be the examining officer and failing them, a judge of this Court.”

[11] Christopher further argued that he should have been able to attend as he is bound by the outcome of the action, according to the order of 7 May 2019. While he may be affected by the outcome of the litigation, it does not follow that he has standing or the rights of a party to participate in examinations for discovery.

[12] On this first issue, I find Christopher had no prima facie right to attend Yu’s examination.

Issue 2: Should Christopher be granted leave to attend Yu’s examination and, if so, on what terms?

[13] As noted above, Christopher takes the position that he is the only party in the Linnell family with information concerning Yu’s allegations and leave should be granted to him to attend to facilitate the examination. His parents’ lawyer also wanted him to be present so that he “could inform his continued examination of [the plaintiff] during breaks.” He further argued that his parents’ counsel is entitled to have a representative present and it would be unfair for his parents to have to fly back from the United Kingdom to attend Yu’s examination, when Christopher was prepared to leave the room and let the examination proceed as scheduled on October 2.

[14] In Sun Life v Hellerman, supra, the court considered the Hellermans’ request that Mr. Hellerman attend the examination of the third party as agent for his wife Mrs. Hellerman. The court accepted that Mr. Hellerman had more knowledge than his wife of the contents of the real estate documents in the files of Mr. Cass, who had been Mr. Hellerman’s solicitor and the party who was to be examined. The court reaffirmed that the decision to permit a non party to attend is a discretionary one and may be exercised where it is necessary for that person to instruct counsel as the facts emerge. Discretion has also been exercised where it was found that the actual party to the litigation would be of practically no assistance to counsel in conducting the examination and that to exclude the agent from the discovery would preclude an adequate examination of the other side. On those facts, the court granted Mr. Hellerman leave to attend as agent for Mrs. Hellerman to assist her counsel in his examination of the third party.

[15] Yu argues that she was ambushed as she had reached an agreement that only Robert and Ute would be present at the examination. Counsel for the defendants argues that when they agreed that Robert and Ute would attend, they were only responding for those two individuals as they were not retained by Christopher at that time. While that may be, as soon as they became aware that they wished Christopher’s assistance in person, it was incumbent on them to seek the consent of Yu, rather than just have Christopher appear at the examination.

[16] There is no evidence before me challenging Christopher’s assertion that he has the most knowledge of the events in issue. Even if his parents had some information, I would find it unfair to require them to travel a second time to Ontario for this examination, when Christopher had offered to leave the examination so that it could proceed without him present. Yu’s counsel indicated that Yu was justified in refusing that offer as the damage had been done. Yu was already upset and intimidated by unexpectedly seeing Christopher. I find that, once Christopher indicated that he would leave, it would have been prudent in the circumstances for Yu to take a break, even of some length if required, and attempt the examination.

[17] Yu argues that Christopher should not be granted leave to attend as he has caused her physical and mental abuse and it would be unfair for her to undergo an examination in his presence. The evidence before me is insufficient to establish that Christopher should be excluded from attending the examination. Yu does not state specifically that the injuries shown in the Exhibits were caused by Christopher. Further, there is no evidence at all connecting Christopher to Exhibit “F”. While I make no finding as to what occurred between Yu and Christopher during the events they both reference, I do note that it did not preclude her from subsequently being in the same room as Christopher during their family law conference, without objection. Second, as Yu initially sued Christopher in this action, she should have expected that they would be in the same room for examinations for discovery had he remained a defendant. Lastly, I do not take her consent to the dismissal of her action against Christopher as evidence that she is intimidated by him or afraid of him, as was argued. It is equally likely that she realized that, as she is seeking a proprietary interest in the Property, Christopher was not an appropriate party to the action as he has no ownership stake in it.

[18] Taking Yu’s statement about her concerns at face value, defendants’ counsel has advised that while the defendants would prefer that Christopher attend in the room to assist their lawyers, they are prepared to have Christopher observe the examination through closed circuit means in another room so that the examination can proceed and they can move the action forward. I find this compromise adequately protects both sides.

Issue 3: Corollary Matters

[19] The defendants request that I order the plaintiff to attend at her examination within 15 days of this order, given that her examination has been delayed for three months and she continues to reside in the Property rent free.

[20] The parties share equal responsibility for the delay. I find that 15 days is likely too short a period for the parties to find a mutually acceptable discovery date. I order that Yu attend to be examined for discovery within 30 days of today’s date.

[21] Second, Yu requests that the affidavit of Christopher sworn 17 January 2020 be struck as scandalous and abusive. I do not agree. The affidavit expresses in only one paragraph Christopher’s subjective view of the plaintiff’s state and was necessary to his explanation of what transpired in July 2016. I am not prepared to strike the affidavit or that portion thereof.

Issue 4: Costs

[22] Each party seeks significant costs of these motions and each on a substantial indemnity basis.

[23] I make no order as to costs of the aborted examination or of either motion. Christopher did not have an inherent right to attend Yu’s examination and should not have done so without alerting Yu and obtaining her consent.

[24] Yu should have accepted the compromise that was offered to have the examination proceed in the absence of Christopher. She should have taken a break, regrouped and attempted the examination, particularly when she knew it would be very difficult and expensive for Robert and Ute to re-attend. I note that by letter dated 22 October 2020 from her counsel, Yu agreed to attend her examination provided Christopher was not present. It is unfortunate that she did not take that position on October 2.

[25] Further, while Christopher was successful on today’s motion, it was not on the basis of his main argument that he had an inherent right to attend, which he did not, but as a result of the court’s exercise of its discretion in his favour.

[26] I encourage the parties to focus on the real issue, which is a determination of Yu’s claim on an expedited basis and attempt some practical compromise, where required, on the process to get to that determination. All parties will lose substantially by taking an adversarial approach on procedural aspects of the litigation.

Master Jolley

Date: 27 January 2020