SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PATRICIA ELAINE MCLAUGHLIN, Applicant
AND:
JOANNE LENORE MCLAUGHLIN et al, Respondents
BEFORE: TRIMBLE J.
COUNSEL: R. Douglas Elliott, delliott@cambridgellp.com, and Joseph Figliomeni, jfigliomeni@cambridgellp.com, for the Applicant/Moving Party
for the Respondents/Responding Parties, Joanne Lenore McLaughlin and Julie Marie McLaughlin, Ian Hull, Ihull@hullandhull.com, and Rebecca Rauws, Rrauws@hullandhull.com,
for the proposed added Respondents/Responding Parties, 2147957 Ontario Inc. and 1355754 Alberta Ltd., Peter J. Osborne, posborne@litigate.com, and Chris Trivisonno, ctrivisonno@litigate.com,
for the Respondent, Stuart Owen McLaughlin, Allan Coleman, acoleman@osler.com,
for the Respondents/Responding parties Stephen Rockett, Peter Paauw and Stuart Owen McLaughlin, in his capacity as Trustee of the S. Bruce McLaughlin 2001 Family Trust, Melanie Yach, myach@airdberlis.com,
for the Respondents/Responding Parties 926100 Alberta Ltd., 926109 Alberta Ltd., Peel Financial Services Limited and Halton Hills South Property Corporation, David Chernos, dchernos@cfscounsel.com, and S. Finkelstein, afinklestein@cfsounsel.com
for the Respondent/Responding Parties 3 Angels Holdings Limited, Daniel Murdoch, dmurdoch@stikeman.com,
for the proposed Respondents/Responding Parties 2147957 Ontario Inc. and 1355754 Alberta Limited, Peter Osborne, posborne@litigate.com, C. Trivisonno, ctrivisonno@litigate.com, and Sarah Bittman, sbittman@litigate.com.
HEARD: 14 September 2020 by Zoom Videoconference
ENDORSEMENT
The Motion
The Motion
1On this motion the Court is asked to resolve four questions:
(1) Should 2147957 Ontario Inc. and 1355754 Alberta Ltd. be added as respondents to this Application as necessary parties?
(2) Should the Court grant leave to the Applicant to file the Affidavit of Timothy
J.L. Phelan, sworn September 10, 2020, in support of the Applicant's request to eliminate or restrict oral cross-examination?
(3) Should the Applicant, Patricia Elaine McLaughlin, be cross-examined orally or in writing and, if orally, what accommodations should to be made?
(4) What is the scope of current cross-examinations?
The Basic Facts
The Basic Facts
2This Application involves a dispute between Patricia McLaughlin, the widow of the late S. Bruce McLaughlin ("Bruce"), and three of their children, Stuart, Julie, and Joanne, over Bruce McLaughlin's Estate's failure to pay to Patricia a specific bequest of $5,000,000 and an annual stipend.
3In these reasons, I refer to the personal litigants by their first names, not out of familiarity or disrespect, but for clarity since they all share the same last name.
4While Patricia's claim may be simply stated, factually, it is complicated, in part because the assets of the Estate are held in a complex web of a Family Trust and many corporations, the complete details of which are unnecessary for the purposes of this motion, and in part because it involves mistrust and enmity between various members of two family camps: Patricia, Stuart, and Laurel (Patricia and Bruce's fourth child) on one side, and Julie and Joanne on the other.
5Julie and Joanne believe that the real litigant (not withstanding Patricia's statements in her Affidavits to the contrary), is Laurel, who was estranged from the family for a long time, but has now reconciled with Patricia.
6Patricia, on the other hand, believes that Julie and Joanna, for eight years, have denied her the bequest that Bruce made. Instead, they have operated the Family Trust and the Estate and the complex web of companies.
7Bruce and Patricia were married for roughly 60 years. Bruce died in July 2012.
8Throughout their marriage, Patricia helped Bruce run his real estate development business. Patricia was also the primary caregiver for their five children.
9Bruce was a successful real estate developer who developed large tracts of land in Peel and Halton Regions in Ontario, Grouse Mountain in B.C., and properties in Texas, among others.
10From the early 1980s until approximately 2010, Bruce carried out various corporate restructuring and estate planning measures, including the creation of the "2001 Family Trust", and the preparation of various Primary and Secondary Wills.
11Patricia says that beginning in 2002, Bruce began to demonstrate signs of dementia. At that time, Joanne, Julie, and Stuart began to manage Bruce's businesses pursuant to a Power of Attorney for Property, dated October 22, 2001.
12In his last Will, dated September 16, 2008, Bruce appointed Joanne, Julie and Stuart as his Estate Trustees. Bruce left a bequest of $5,000,000 to Patricia, to be paid within 36 months of his death, and ordered that the residue of the Estate be held for Patricia's benefit.
13To date, Patricia has received no money from the Estate or the 2001 Family Trust. Since Bruce's death, Patricia has been repeatedly told by Joanne, Julie, and Stuart (Bruce's original Estate Trustees) that Bruce's Estate lacked the liquid assets to pay Bruce's specific bequest to Patricia. Julie, Joanne, and Stuart have paid Patricia funds from their corporation, 3 Angels, to meet Patricia's needs so that she has not had to touch her own assets in order to live. 3 Angels has paid for Patricia’s support worker, home repairs, and a monthly stipend.
14Patricia says that Julie, Joanne and Stuart have benefitted from the sale of several valuable Estate assets including the Grouse Mountain Resort in British Columbia, resulting in each of Joanne, Julie, and Stuart each receiving approximately $60,000,000.
15Patricia has never been provided with an accounting or the financial statements for the Estate or the 2001 Family Trust, of which she is a beneficiary.
Procedural Background
Procedural Background
16Patricia commenced this Application in May 2020, having first completed the procedure under the Chief Justice's Notice to the Profession for an urgent motion.
17I heard the first appearance in this matter, in writing on 14 May 2020 based on Patricia's letter to the Court asking for an urgent motion. By endorsement dated 20 May 2020, I determined that the following issues raised in the Application were likely urgent (subject to an argument on the merits):
(a) An accounting from the McLaughlin Estate and the 2001 Family Trust);
(b) An order preserving the Estate and 2001 Family Trust property; and
(c) An order for an interim disbursement of $500,000, and a monthly stipend of $25,000 per month to the Applicant, both of which will be credited as advances of any entitlement the Applicant has to funds from the Estate or the 2001 Family Trust.
18The hearing of the three urgent issues on an opposed basis was originally scheduled for 31 August, but re-scheduled to 14 September, then 14 October 2020. The balance of the Application must proceed in the normal course.
19By Endorsement dated 2 September 2020, I determined that the following additional issues are also urgent, as they had to be decided before the three urgent issues defined on 20 May could be decided:
(a) Whether 214 Ontario and 1355 Alberta should be added as parties to the Application, and if so,
(b) Whether 214 Ontario and 1355 Alberta are to be included in the "preservation order" that was defined as urgent in May.
Analysis and Disposition
Issue 1: Should 2147957 Ontario Inc. and 1355754 Alberta Ltd. be Joined as Respondents to these Proceedings as Necessary Parties?
Facts:
Analysis and Disposition
20From the Affidavits from Julie and Joanne filed in this Application in early July, Patricia first learned that:
(a) There was an entity known as the Halton Trust,
(b) Halton Trust indirectly holds a 25% interest in undeveloped land in Halton Hills, Ontario, which were received by the Halton Trust as part consideration for the sale of assets previously controlled by Bruce and the 2001 Family Trust,
(c) The 25% interest is actually owned by 214 Ontario which acts as trustee for the Halton Trust,
(d) Julie is the sole officer and director of 214 Ontario,
(e) 214 Ontario is wholly owned by 1355 Alberta, a company owned equally by Stuart, Julie, and Joanne. 1355 Alberta's sole asset is one share of 214 Ontario,
(f) The sole beneficiary of 214 Ontario is 926109 Alberta.
21The 2001 Family Trust has as its beneficiaries, Bruce, Patricia, Joanne, Stuart, Julie, and any grandchildren of Bruce and Patricia.
22Patricia was already aware that 926109 Alberta is a wholly owned subsidiary of Peel Financial Services Limited (PFSL). The Estate's primary asset
is several classes of shares in PFSL. The 2001 Family Trust owns 100 common shares of PFSL.
23Prior to receiving the Respondents' Affidavits in this Application in early July, Patricia did not know about the existence of the Halton Trust. Patricia has never been provided with an accounting from, or the financial statements of the Halton Trust, 214 Ontario or 1355 Alberta.
24Patricia learned, only in the course of this litigation, that 214 Ontario has negotiated a Letter of Intent to sell its 25% share in the undeveloped land in Halton Hills for approximately $31.5 million.
25The only evidence about 214 Ontario and 1355 Alberta comes from Joanne and Julie who say that 1355 Alberta has no interest in the Estate or the Family Trust. It is merely a holding company whose sole asset is one share of 214 Ontario. 1355 Alberta is owned by July, Joanne and Stuart, equally.
Positions of the Parties:
26Patricia says that 214 Ontario and 1355 Alberta are necessary and proper parties to this proceeding and should both be added.
27214 Ontario consents to be added, provided a) it has full rights of any other party (which might necessitate its cross-examining those already cross-examined), and b) that it should not be bound by any 'preservation order' currently in effect.
281355 Alberta says it is not a necessary party and should not be added.
Result:
29The motion is allowed. 214 Ontario is added on consent. 1355 Alberta is a necessary party. Both shall have full rights as a party.
The Law:
30Two rules apply here. Rule 26 says that pleadings shall be amended unless there is non-compensable prejudice to the parties resisting the amendment. The court has discretion in order to ensure procedural fairness.
31Rule 5.03(4) permits the addition of "necessary parties", defined as those who "… ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceedings…"
32In Amon v. Raphel Tuck & Sons Ltd. (1955), [1956] Q.B. 357 (Eng), cited with approval in Stevens v. Canada (Commissioner, Commission of Inquiry), 1998 CarswellNat 1049 at para. 20 and McCutecheon v. The Cash Store Inc. (2006), 80
O.R. (3d) 644 (S.C.J.), the court said:
The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the construction of a clause in a common form contract many parties would claim to be heard, and if there were power to admit any, there is no principle of discretion by which some could be admitted and others refused. The court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. [emphasis added]
33The question is whether on 1355 Alberta is a "necessary party".
Analysis:
34214 Ontario owns a 25% interest in the Halton Hills Development's undeveloped land which it holds in trust for 926109 Alberta Ltd. 926109 Alberta is wholly owned by Peel Financial Services Ltd. whose shares are held between the Estate and the Family Trust. 1355 Alberta is a corporation owned by Julie, Joanne, and Stuart, equally. 1355 Alberta owns the only share in 214 Ontario. Joanne is the sole officer and director of 214 Ontario. 214 Ontario, as the trustee for 926109 Alberta, owes fiduciary duties as trustee to it. 1355 Alberta owes no such duties to anyone involved in the 25% interest in the land.
35In argument, Patricia said that there is potential for 'sideways' or 'backdoor' movement of assets from 214 Ontario to 1355 Alberta. This concern is based on
a) that Joanne is the sole officer or director of 214 Ontario and is also a director and officer of the 1355 Alberta, and b) that Patricia (and those family members allied with her) do not trust Julie and Joanne.
36While I recognize that the level of distrust between the two family camps is very high, that is not sufficient, alone, to make 1355 Alberta a necessary party. There is no evidence, subject to one fact I address next, that there will be, or whether there is a potential to be, a movement of assets from 214 Ontario to 1355 Alberta, such that the assets properly due to the Estate and Family Trust are depleted by Julie and Joanne.
37What makes1355 Alberta a necessary party is Julie's evidence at para 186 of her Affidavit1 where she says:
It was anticipated that the interest in the 450 acres of land would be put into the Halton Trust, to be controlled and managed by 214 Inc. and 1355 Ltd. (emphasis added)
38Various family members, in their various capacities with the parties, were at pains to describe 214 Ontario as the trustee of the 25% interest in the undeveloped Halton Hills Project land which and owed fiduciary obligations to the Estate and the Trust. 1135 Alberta should not be a party because it was not an Estate or Trust asset, had no claim to assets held by the Estate or the Trust, and had no duties or obligations to anyone similar to those of 214 Ontario. It is merely a holding company.
39That evidence does not alter the fact that Julie said that the 25% interest in the Halton Hills land would be controlled and managed by 214 Ontario and 1355 Alberta. I was directed to no evidence from anyone else that contradicted Julie's evidence in para 186 of her affidavit, and said that it was not correct.
Issue 2: Should the Court Receive the Affidavit of Timothy J.L. Phelan, sworn 10 September 2020?
Facts:
Issue 2: Admissibility of the Phelan Affidavit
40Mr. Phelan's Affidavit addresses solely the issue of Patricia's ability to withstand oral cross-examination, and whether she should be cross-examined by written questions.
41In response to requests by Joanne and Julie to conduct an oral cross- examination of Patricia, on 14 July 2020 Patricia swore an affidavit expressing her anxiety regarding being orally cross-examined as it would pose a threat to her health and wellbeing. Patricia cited her long-standing blood pressure problems, age, and need to social distance during the Covid-19 pandemic as reasons for her concerns.
42On 22 July 2020, the opinion of Patricia's general practitioner (G.P.) was discussed during a teleconference between all counsel. Patricia's counsel reported to the others that the G.P. thought that Patricia should not be subjected to an oral
cross-examination because of the stress that it would cause. Respondents' Counsel were advised that they could expect an update following Patricia's appointment with her cardiologist, Dr. Kimball, on 19 August 2020.
43On the 22 July 2020 teleconference call, counsel also agreed on a schedule for cross-examinations for everyone else. No provision was made for the oral cross-examination of Patricia. No party raised any objection to receiving Dr. Kimball's letter after 19 August 2020. All but the cross-examination of Joanne McLaughlin was scheduled for dates before 19 August 2020.
44The issue of how Patricia McLaughlin would be cross-examined was not placed on the list of urgent issues until 2 September 2020, to be heard 14 September 2020 pursuant to my Endorsement of September 2 which also provided that all materials for the 14 September motion were to be filed by 10 September at 4:00 PM. Mr. Phelan's Affidavit was served after 10 September.
45It appears that notwithstanding the efforts of Patricia's counsel, the letter from Dr. Kimball was not obtained until September 9, 2020. He said:
Not only would [cross-examining Patricia in person] create considerable stress in this otherwise frail elderly woman with significant underlying heart disease, her general state of weakness would make proceeding somewhat risky and impair the accuracy of the statements at that time. If I might, one would suggest the introduction into evidence of written responses to questions of concern.
46The Affidavit attaching the letters of Dr. Patel and Dr. Kimball was sworn on September 10, 2020, the day after Dr. Kimball's letter was received.
Result:
47In this case, I admit Mr. Phelan's Affidavit for the reasons articulated by Corbett J., in ADT Security Services v. Fluent Home, 2018 ONSC 3092. This matter is moving rapidly and is highly fluid. What in other actions might take a year or more to transpire, is compressed in this matter into only a few months.
Arguments such as that the applicant ought to have had this affidavit or the information contained in it earlier, is splitting hairs. It appears that counsel acted expeditiously in obtaining and sending medical opinion.
48I do not admit the medical opinion either in the form of the letters attached to Mr. Phelan's Affidavit, or in the form of Mr. Phelan's report of what any doctor said to him.
Law:
49In 1944949 Ontario Inc. (OMG ON THE PARK) v. 2513000 Ontario Ltd., 2019 ONCA 628, at para. 33, the Court of Appeal said that the court must consider the following criteria in determining whether a party should be granted leave to respond to a matter raised on cross-examination:
a. Is the evidence relevant?
b. Does the evidence respond to a matter raised on the cross- examination, not necessarily raised for the first time?
c. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?
d. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?
50The court's approach should be flexible and contextual, having regard to the overriding principle outlined in Rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute. An overly rigid interpretation can lead to unfairness by punishing a litigant for an oversight of counsel (see: First Capital Realty Inc. v. Centrecorp Management Services Ltd. (2009), 258 O.A.C. 76 (Div. Ct.), at para. 13 & 14).
Analysis:
51I do not admit the reports of the two doctors attached as exhibits to Mr. Phelan's affidavit nor Mr. Phelan’s evidence as to the opinions he received in telephone conversations from the doctors. The Applicant wishes me to receive these opinions for the truth of their contents, namely that Patricia cannot withstand oral cross-examination. I cannot do so, as a matter of evidence.
52The Respondents say that I should not accept the opinions as they do not comply with Rule 53.03. I agree with this argument. The Doctors did not provide their undertaking to the court concerning their duty, or the factual basis for their opinions. That is sufficient to deal with the medical reports.
53Mr. Phelan's reports of what the doctors told him are also not admissible. Rule 39 governs evidence on applications and motions. Rule 39.01(4) says that an affidavit on a motion may contain information and belief (hearsay) so long as the source of the information and the fact of the belief are specified in the affidavit. Rule 39.01(5) says the same about affidavits filed on applications but adds that the hearsay cannot be on a contentious matter.
54In this case, the medical opinion which the Applicant seek to have admitted for the truth of its contents is brought in a motion within an application. Regardless, submitting hearsay regarding medical opinion for the truth of its contents (as opposed to the act that it was made) is inappropriate.
55Doctor's notes and reports can be admitted in a summary judgment motion if the doctor files an affidavit, or by the submitting party meeting the notice required by s. 35 and 52 of the Evidence Act (see: Dupont Heating & Air Conditioning Limited v. Bank of Montreal, 2009 CanLII 2906 (ONSC); Golding v. Philip (1996), 48 C.P.C. (3d) 368 (Gen. Div.); Dutton v. Hospitality Equity Corp. (1994), 26 C.P.C.
(3d) 209 (Gen. Div.); Deslauriers v. Bowen (1994), 36 C.P.C. (3d) 64 (Gen. Div.);
Suwary v. Women's College Hospital, [2008] O.J. No. 883 (S.C.J.)
56This principle is equally applicable to an application.
57The Applicant says that the opinion should be admissible because it is what they could get in limited time, and it goes only to procedural (not substantive) relief sought.
58I disagree. The opinion is tendered for its truth, not the fact that it was made. It is not admissible for its truth, as indicated above. While the evidence is submitted with respect to procedural relief, it is significant procedural relief: dispensing with a presumed right to cross-examine a witness in person.
59Applying a flexible and contextual approach to the four criteria set out by the Court of Appeal in 1944949 Ontario Inc., I admit the affidavit of Mr. Phelan with respect to all other evidence stated in that affidavit except the two medical documents attached, and Mr. Phelan's evidence about opinions expressed by doctors.
60The issue to which supplementary affidavit is relevant is Patricia's ability to withstand oral cross-examination. Therefore, the evidence is relevant insofar as the admissible evidence deals with what forewarning the Respondents had with respect to Patricia's position.
61The Respondents submit that the new evidence should not be admitted because it fails to meet the 2nd and 4th criteria set out by the Court of Appeal, namely that the evidence does not respond to a matter raised in cross-examination and that Patricia no reasonable or adequate explanation for not getting evidence earlier.
62With respect to the timelines of the evidence, because of the procedures imposed following the court shut down during the Covid-19 pandemic, timelines in this matter are very short. It is a fluid and dynamic case. The Respondents knew since mid-July that Patricia wanted to be cross-examined in writing, knew from Patricia's counsel that her G.P. recommended this, and knew that further medical opinion would be available after the 19 August cardiac specialist's appointment.
63With respect to the second of the Court of Appeal's criteria, the Court of Appeal was addressing a party's attempt to introduce new evidence on the merits of the dispute, after cross-examination had begun. By applying the second criterion the circumstances in this case, the Respondents apply a mechanistic approach. The issue here is not whether new evidence can be tendered on the merits of the motion after the beginning of cross-examination on the evidence filed in respect of that motion. Rather, the issue is whether the Applicant should be able to introduce "new evidence" with respect to a procedural aspect of her cross-examination that had not begun. Therefore, the second criterion put by the Court of Appeal, in these circumstances, using a flexible and contextual approach, should be rephrased as "Does the proposed evidence pertain to a procedural issue that does not affect the substantive merits of the Motion or Application?".
64As indicated, Patricia's ability to withstand oral examination has been an issue since mid-July. So has the issue of obtaining medical evidence. The situation is fluid and rapidly changing. The Affidavit is admitted, subject to the limitations stated.
Issue 3: Should Patricia be Cross-Examined Orally or in Writing, and if the Former, What Accommodations Should be Made for Her?
Facts:
Issue 3: Mode of Cross-Examination
65There is no dispute among the parties about Patricia's health. Except for the individual respondents Stephen Rockett in his capacity as Trustee of the S.
Bruce McLaughlin 2001 Family Trust, and Peter Paauw in his capacity as Trustee of the S. Bruce McLaughlin 2001 Family Trust, the other individual respondents are three of Patricia's four children. All of the corporate or institutional respondents are corporations which Patricia's children control directly or indirectly.
66Patricia is 93 years old. She suffers from edema in her legs, atrial fibrillation, and as of April is recovering from a Staphylococcus infection. She recently had a health scare when she was tested for Covid-19. She suffers from chronic high blood pressure. She continues to live in the home that she and her husband owned, with assistance from her long-time caregiver. Patricia also relies on private nursing services who visit her at her home twice daily to take vital signs and report to her physician.
67Patricia has been under the care of a cardiologist since 1995.
Position of the Parties:
68Patricia says that an oral cross-examination would put an enormous amount of stress on her, which can aggravate her atrial fibrillation and blood pressure problems with potentially deadly consequences. Furthermore, her edema makes getting and staying comfortable for extended periods of time extremely difficult. Her age, recent infections, and other health issues limit Patricia's energy and her ability to focus. Finally, her need for regular health monitoring would require interruption of cross-examination. Patricia, however, is willing to submit to cross-examination via written interrogatories.
69Patricia has made her position clear to the respondents. Today, however, they have received no written interrogatories nor have been advised why written interrogatories are insufficient.
70The Respondents argue that Patricia's medical conditions are long- standing and are well controlled. She has chosen to commence highly contentious
litigation against family members that has only exacerbated deteriorated relationships between the family members. It is not appropriate for her to avoid being cross-examined orally. The Respondents are concerned that written interrogatories will be answered by Laurel and counsel through carefully crafted responses. Written interrogatories will deprive them of the spontaneity of oral cross-examination as well as the ability to follow-up, immediately, with other relevant questions.
Result:
71Patricia will be examined, orally with the following terms and conditions applying:
(a) her examination will be held, remotely, with Patricia participating from her home or other place she feels comfortable;
(b) Patricia will be under oath or solemn affirmation;
(c) she may have present with her a support person and/or medical person;
(d) she may have present with her a legal representative to assist her with documents;
(e) any person present with Patricia shall observe Covid-19 protocols, such as appropriate social distancing, wearing a mask, and frequent hand washing or sanitization;
(f) the cross-examination will be limited to four hours for all parties, held over two days. Each day shall comprise one hour of cross- examination followed by a 30 minute rest break, followed by another hour of cross-examination.
The Law:
72In Ozerdinc Family Trust v. Gowling Lafleur Henderson LLP, 2015 ONSC 2366, MacLeod J. held, albeit in the case of an examination for discovery, as follows:
(a) There is a presumption that each party to an application will be cross- examined on his or her affidavit served by an adverse party (paragraph 23);
(b) Oral examinations are not an absolute right. The court has the jurisdiction to curtail or modify the discovery rights of the parties or to give direction as to how those rights are to be exercised to ensure procedural fairness (paragraph 22. See also Kidd v. Lake, 1998 CanLII 14714 (ON SC), 42 O.R. (3d) 312 (Gen. Div.) at para. 17);
(c) The court requires compelling evidence to restrict the right to orally examine another party (paragraph 23);
(d) In order to displace the presumption of entitlement to oral examinations, in the absence of discovery abuse, the onus was on the party resisting oral examination to establish by persuasive medical evidence the party was unable to attend for discovery. That the party is upset or the process special is not sufficient (at paragraph 23 to 25. See also: Ferrara v. Roman Catholic Episcopal Corp. for the Diocese of Toronto in Canada, [1996] O.J. No. 2164; 1996 CarswellOnt 2056; (1996) 2 C.P.C. (4th) 64 (Gen. Div.);
(e) The evidence must persuade the Court that the stress of an examination under oath would create a real likelihood of a serious harm sufficient to deny the examining party the presumption of an oral
examination (paragraph 28. See also Kong Wah Holdings Ltd. (Liquidator of) v. Yong, [2006] O.J. No. 3714, para. 33, and Mohanadh
v. Thillainathan (2010) 2010 CarswellOnt 2851 (Master Muir, at para 6; and Melki v. Reid, 2018 ONSC 1646, para. 24 & 25);
(f) The party seeking to avoid an oral examination in favour of interrogatories has a high onus to meet. Oral examinations are preferable. The party must answer spontaneously and honestly. The witness does not have time to craft an answer that although not dishonest, is not entirely forthright. The witness must answer the question without seeing the examiner's entire strategy. Only the witness answers the question. Examinations in writing lose the spontaneity of the oral examination, and allow others to draft the answers, giving them a spin or carefully filtering them. (see: Botiuk v. Cambell, 2011 ONSC 1632 at paras. 44-48)
73While the above principles arise mainly in the confines of an examination for discovery in an action, they have been extended to apply to cross-examinations on applications (see: Marc Andrew Arnold v. John James Arnold et al., 2019 ONSC 6097 at paras. 17-20).
Analysis:
74Given my ruling on Issue1, there is no compelling evidence that Patricia has real likelihood of suffering serious harm such that I should deny the Respondents their presumed right of oral examination. Patricia's Affidavits set out her physical conditions. They indicate Patricia's clear preference to answer questions in writing. That evidence does not indicate a real likelihood of serious harm being caused by being examined orally.
75Patricia's counsel says that I can take judicial notice of the frailties and risks that a 93 year old woman of Patricia's health suffers or is exposed to.
76This submission was made without authority. Even if I could take judicial notice of the risks 93 year old women of Patricia's general health may be subject to and the stresses that they face while being cross-examined, what risks and stress 93 year old women like Patricia may face, is not the question. Patricia must establish what risk of serious harm SHE is exposed to.
77My determination of this issue would not be different had I admitted the medical opinions.
78In his email of 22 July 2020 to all counsel at 11:18:200 pm, Mr. Figiomeni reports to the respondents' counsel that Dr. Patel, Patricia's G.P. said that Patricia:
"…is not fit to be cross examined virtually or in person as it would likely cause worsening lower limb edema and put her at risk of another blood infection. In addition, the stress could cause worsening of her blood pressure and heart condition. It would be safer for her to answer questions put to her in writing so that she could have some flexibility in managing the stress."
79In his letter of opinion of 21 July, Dr. Patel reports that Patricia suffered a blood infection as a result of a skin infection caused by leg swelling. Her leg swelling is made worse when her legs are down or she is stressed. As of July, she was still weak and continued to recover from that weakness caused by her infection. He says that she also continues to have lower limb edema and takes medication for this. He says that cross-examination in person or virtually would likely cause worsening of lower limb edema and put her at risk of another blood infection. Dr. Patel indicates that Patricia's blood pressure, temperature and swelling were controlled in part by daily nursing care.
80Dr. Patel's opinion is of limited assistance. The G.P.'s opinion is current only to 21 July. He comments on her weakness from her original illness in April. It
does not opine on Patricia’s state of health in September 2020. He does not state his assumptions with respect to the timing or duration of cross-examination, although he appears to have made some assumptions. He does not address accommodations that might eliminate or reduce the risk.
81Her cardiologist, Dr. Kimball, says:
It's my understanding [Patricia has] been asked to provide a verbal deposition regarding an estate matter of her late, deceased husband Mr. Bruce McLaughlin. Not only would this create considerable stress in this otherwise frail elderly woman with significant underlying heart disease, her general state of weakness would make proceeding somewhat risky and impair the accuracy of the statements at that time. If I might, one would suggest the introduction into evidence of written responses to questions of concern.
82His evidence is tentative and hesitant.
83Neither opinion, if admitted, creates a real likelihood of serious harm sufficient to deny the examining party the presumption of an oral examination. Neither doctor considers what effect accommodations may have on an oral examination.
84In order to accommodate Patricia's medical or health conditions, I impose the following conditions:
(a) her examination will be held, remotely, with Patricia participating from her home or other place she feels comfortable;
(b) Patricia will be under oath or solemn affirmation;
(c) she may have present with her a support person and/or medical person;
(d) she may have present with her counsel or another legal representative to assist her with documents;
(e) any person present with Patricia shall observe Covid-19 protocols, such as appropriate social distancing, wearing a mask, and frequent hand washing or sanitization;
(f) the cross-examination will be limited to four hours for all parties, over two days. Each day shall comprise a one hour cross-examination followed by a 30 minute rest break, followed by another hour cross- examination.
Issue 4: Undertakings and Refusals and should the scope of cross-examinations.
Issue 4: Scope of Cross-Examinations
85This issue arose from a fundamental disagreement on the scope of cross- examination during the applicant's cross-examination of Julie McLaughlin, when Julie's counsel refused to answer 17 questions.
86Counsel for Patricia took the position that he could ask any question on cross-examination that is relevant, fair, and asked in good faith even if the question was outside of the four corners of the affidavit. Given the fact-finding role of cross- examination on an Affidavit for an interlocutory a motion, the examiner should be given greater leeway (see: Seaway Trust Co v. Markle, [1988] OJ No. 164 (HCJ) and Volk v. Volk, 2020 ONCA 256).
87Counsel for Julie and Joanne take the position that the scope of cross- examination on an affidavit is limited by the nature of the relief sought on that motion (see: Volk, para 10). It in the circumstances of this motion, the nature of the relief sought is limited to the three issues which were defined by my Endorsement of 20 May as possibly urgent.
Result:
88Cross-examination of all parties is limited to the three issues defined as urgent by my Endorsement of 20 May. This is without prejudice to the parties to
cross-examine on other aspects of the Affidavits at another time as they pertain to other issues in the Application.
The Law:
89The most recent and highest authority on the issue of the scope of cross- examination is Volk v. Volk, 2020 ONCA 256. In that case, the Applicant alleged that two of the respondents abused their Power of Attorney for the grantor by dispersing property of the grantor improperly. The Applicant sought to freeze assets and transfer other assets to his name in trust for the grantor. The order was on consent. The two Respondents who transferred the property originally, and the PGT did not appear or file opposing material. The two non-appearing Respondents appealed the order and brought a motion to stay the order appealed from as it related to the sale of the grantor’s home.
90One of the two non-appearing respondents was cross-examined on her affidavit filed in respect of the motion to stay the underlying order. She refused to answer several questions. Those refusals spurred a motion to attack them.
91Paciocco J.A., said in paragraph 10:
[10] As Borins J. noted in Moyle v. Palmerston Police Services Board, 1995 CanLII 10659 (ON SC), [1995] O.J. No. 627 (Div. Ct.), at para. 11, "the nature of the relief sought on an interlocutory motion often plays a significant role in determining the proper scope of cross-examination". This is because the cross- examination is meant to serve the fact-finding needs that the motion requires. Accordingly, as Borins J. affirmed, quoting Gale J. from Thomson v. Thomson, [1948] O.W.N 137 (H.C.) at 138, a person cross-examining on an affidavit is not confined to the four corners of the affidavit but may cross-examine on matters that are relevant to the issue in respect of which the affidavit was filed. Therefore, although the cross-examiner is not free to cross-examine on all matters that touch upon the underlying action, if the cross-examiner has a bona fide intention to direct questions to the issues relevant to the resolution of the motion and those questions are fair, the question should be answered, not refused. This includes questions relevant to credibility determinations that are within the competence of the motion judge, which would include questions intended to expose "errors, omissions, inconsistencies, exaggerations or improbabilities of the deponent's testimony contained in his or her affidavit": Moyle, at para. 14.
92The learned appeal judge then turned from the general to the specific, and said :
[11] The motion in this case is for the stay of an order to preserve the disputed asset. A motion for a stay pending appeal engages the same general legal standards from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, which are employed in granting interlocutory injunctions, namely, consideration of whether the appeal raises a serious issue, whether the applicant will suffer irreparable harm if the stay is not granted, and the balance of convenience: see Buccilli v. Pillitteri, [2013] O.J. No. 6110 (C.A.), at para. 34 (Gillese J.A., in Chambers). In Moyle, Borins J. noted that because of the nature of the discretionary remedy to grant in interlocutory injunction, the scope of cross-examination for such motions is apt to be broader than in respect of many motions for other remedies: at para. 18. The same is necessarily true of motions for a stay pending appeal.
Analysis:
93The central issue of this aspect of the dispute between the parties is what is "the nature of the relief sought on an interlocutory motion"? Is the central issue in dispute the issues raised in the application as a whole (as the applicant's submit) or is the central issue in dispute limited to the three issues defined on 20 May defined as urgent (as Julie and Joanne submit)? If it is the latter, are the parties still free to cross-examine at another time on all other issues than the three that are defined as urgent (as Patricia submits)?
94The central issues that define the scope of cross-examination on this motion are the three issues that I defined as urgent in my Endorsement of 20 May.
95In March 2020, the Superior Court of Justice ceased its normal operations in response to the Covid-19 pandemic. The Superior Court remained open, however, for urgent matters as defined by the Chief Justice's Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media Re: Expanded Operations of Ontario Superior Court of Justice, effective May 19, found at
https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated- notice/.
96The Notice to the Profession indicates, generally, that during the pandemic, regular in court operations were suspended. The court called upon all users of the court system and all members of the courts to do business in a different way so that essential emergency services could continue. Lawyers and parties were exhorted to take a more active role in moving cases forward to final settlement or disposition.
97The Notice to the Profession and that case law since 16 March have delivered three clear messages to the Profession:
Be frugal in the relief sought. Ask for only what is necessary, for now.
Be lean in the material filed. File only that which is necessary for the court to review when considering the frugal relief sought.
Be surgical with submissions to the court.
98In keeping with this message, it is only reasonable that, in applying the test in Volk, in the circumstances of this case cross-examination should be limited to the three issues that I decided on 20 May were urgent.
99I also define the scope of examinations in this matter narrowly as an issue of allocation of scarce resources.
100As I have advised counsel at two case conferences, I am concerned about the public resources that the parties wish to have devoted to their dispute.
101In my 20 May Endorsement, I defined the three issues which may be urgent, set a date for the hearing of those three issues, and addressed a timetable. I advised the parties that I would informally case manage the file procedurally, to make sure the hearing date was maintained. I advised the parties that I could not
case manage the file formally. In order to obtain a case management judge, they had to write to RSJ Ricchetti.
102Since 20 May, these parties appear to think that they have the right to call my assistant and convene case conferences in this matter, at their hearts desire.
103This is not the case.
104I agreed to case manage only the procedural aspects of the motion on the three urgent issues in order to get it to a hearing on the merits. Notwithstanding all of this, including the attendance for this interlocutory Motion within this Application we have had not fewer than nine case conferences and appearances, including the full day it took to argue this motion.
105While the parties' pockets appear to be bottomless, the public's is not. It is only appropriate to limit the scope of cross-examination (without prejudice to full cross-examination on the remaining issues at another time) to protect the use of the public's resources.
106But for the issue of this proceeding’s draw on scare public resources, I would have ordered that Julie’s and Joanne’s cross examination was not so limited, based on their own evidence.
107In paragraph 6 of her Affidavit, Julie said:
The within affidavit is therefore addressing the matters listed in the May 20 Endorsement as being urgent, and which are intended to be addressed at the hearing on August 31, 2020. Should any additional issues be addressed at the August 31, 2020 hearing, my sister, Joanne McLaughlin, and I reserve our right to file additional affidavit material. We also reserve our right to file additional affidavit material in relation to the balance of the issues raised in my mother's Application, at such time as is relevant.
108She said in paragraph 217:
Both the contents of this affidavit, and Joanne's Affidavit, are relevant to the urgent issues as identified in the May 20 Endorsement, and will be available for this Honourable Court's consideration at the hearing on August 31, 2020.
109In other words, Julie said that everything in Joanne's and her Affidavits is relevant to the urgent issues that I defined. Joanne did not take issue with this statement.
110In argument, Julie's counsel took the position that certain of the information in Julie's Affidavit is background, not central to the issues defining the scope of cross examination, and therefore cannot be cross-examined on.
111I do not accept this submission. It does not lie in the mouth of counsel to disagree with the position taken by his clients that everything she avers to in their Affidavit(s) is relevant to the three issues. Even if I did accept counsel's submission, I would only have exempted paragraphs 7 to 14 of Julie’s affidavit as begin background because that is all Julie labeled as such in her Affidavit.
112The use of limited public resources, the rate that those resources are being consumed by this litigation, and the principle of proportionality, require that I limit cross examination as stated. Given these limitations, refusals 1 to 7, and 9 to 17 as listed in Schedule C to Julie’s and Joanne’s Motion Material do not have to be answered as they pertain to issues in the Application that are not at issue in the motion on urgent matters. The Applicant has abandoned refusal 8. This ruling regarding the refusals is without prejudice to all parties' right to cross-examine on all issues in the Application at the appropriate time.
Costs:
Costs
113I will address the matter of costs in writing. Submissions are limited to 3 double-spaced typed pages, excluding offers to settle and bills of costs. The
Applicant’s (and those allied with her) must be served and filed by 4 pm, 9 October 2020 and the Respondents’ shall be served and filed by 4 pm 23 October 2020.
Trimble J.
Date: September 21, 2020
COURT FILE NO.: CV-20-1847
DATE: 2020 09 21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICIA ELAINE MCLAUGHLIN,
Applicant
– and –
JOANNE LENORE MCLAUGHLIN et al,
Respondents
ENDORSEMENT
Trimble J.
Released: September 21, 2020