Court File and Parties

(KITCHENER) COURT FILE NO.: C-434-17 DATE: 2020-09-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Claire Ross and Ryan Campbell Plaintiffs

– and –

Andrej Filip, Elena Filipova, Lawyers Professional Indemnity Company Operating as TitlePLUS Title Insurance, The Corporation of the Township of Mapleton, Patty Wright, Chief Building Official, Township of Mapleton and Daniel Swedlo, Building Inspector, Township of Mapleton Defendants

Counsel: Patrick Kraemer, for the Plaintiffs Patrick Snelling, David Contant and David Silver, for the Defendants Andrej Filip and Elena Filipova No other Defendants appeared

HEARD: September 15, 2020 via Virtual Hearing

THE HONOURABLE JUSTICE J. R. HENDERSON

REASONS FOR DECISION ON MOTION

INTRODUCTION

[1] There are five motions before the court today, as follows:

Motion No. 1 – plaintiffs’ motion for contempt

Motion No. 2 – plaintiffs’ motion for a writ of possession

Motion No. 3 – plaintiffs’ motion to strike out the affidavits and the motion record of the defendants regarding Motion No. 4

Motion No. 4 – defendants’ motion to set aside default judgment

Motion No. 5 – defendants’ motion for directions regarding costs

[2] As a preliminary matter, I determined that I should hear and decide Motion No. 3 before any of the other motions were heard. These are my reasons for my decision on Motion No. 3.

BACKGROUND

[3] On April 2, 2019, the plaintiffs obtained default judgment in this proceeding against the two defendants, Andrej Filip (“Filip”) and Elena Filipova (“Filipova”), in the approximate amount of $617,209, plus prejudgment interest, plus costs.

[4] Plaintiffs’ counsel arranged for each of Filip and Filipova to be served with a Notice of Examination that required Filip and Filipova to attend at the offices of JML Transcription in Ottawa for an examination in aid of execution on June 12, 2020. Filip and Filipova did not attend for the examination contrary to the Notices of Examination.

[5] Subsequently, plaintiffs’ counsel brought Motion No. 1 requesting that Filip and Filipova be found in contempt, and for an order that they attend for an examination in aid of execution at a date to be set.

[6] In mid-June 2020 Filip and Filipova retained their present lawyers, Patrick Snelling and David Contant, who were in communication with plaintiffs’ counsel. At approximately the same time, David Silver informed plaintiffs’ counsel that he had been retained as counsel for Filip and Filipova’s previous lawyer, Ken Dunham (“Dunham”). It was understood that Mr. Silver was retained through Dunham’s insurers, LawPRO.

[7] On the return of Motion No. 1 on July 30, 2020, Justice Sloan was informed that Filip and Filipova intended to bring a motion to set aside the default judgment. Accordingly, Justice Sloan adjourned Motion No. 1 to September 15, 2020, ordered that the defendants’ motion to set aside the default judgment would proceed prior to Motion No. 1, and set out a timetable for the delivery of the defendants’ motion.

[8] Then, in August 2020, Filip and Filipova delivered the defendants’ motion to set aside the default judgment, now known as Motion No. 4. Motion No. 4 was delivered and prepared by Mr. Silver. The documentation in support of Motion No. 4 included affidavits sworn by Filip, Dunham, Melissa Erskine (“Erskine”), and Sarah-Jane Biggs (“Biggs”).

[9] Plaintiffs’ counsel then served Notices of Examination that required the affiants to attend for cross-examination on their affidavits pursuant to R. 39.02 of the Rules of Civil Procedure. Also, because Filipova had not delivered an affidavit, plaintiffs’ counsel served a Notice of Examination that required Filipova to attend for an examination as a witness pursuant to R. 39.03. The Notices of Examination stated that Filip, Filipova, and Dunham were required to attend the offices of JML Transcription in Ottawa at an appointed time. I note that Erskine’s examination was scheduled to take place at Victory Verbatim in Toronto. I accept that the plaintiffs also wished to cross-examine Biggs on her affidavit, but did not serve a Notice of Examination on Biggs as it became obvious that there was a problem with all of the examinations.

[10] Prior to the scheduled date for the examinations, Mr. Contant advised plaintiffs’ counsel that his clients, Filip and Filipova, would not attend in person for their examinations as they were both elderly and were concerned about the health risks of attending in person for an examination during the COVID-19 pandemic. He stated that Filip and Filipova were willing and able to be examined by way of a video conference.

[11] In response, plaintiffs’ counsel insisted that he wished to examine Filip and Filipova, as well as the other affiants, in person. Because of this impasse, the scheduled examinations were cancelled.

[12] As a result, plaintiffs’ counsel brought this motion, now known as Motion No. 3, to strike out all of the affidavits filed in support of the defendants’ motion to set aside the default judgment (Motion No. 4), and to strike out Motion No. 4 in its entirety.

THE POSITIONS OF THE PARTIES

[13] Plaintiffs’ counsel relies on two separate grounds in support of his request.

[14] First, plaintiffs’ counsel submits that Filip and Filipova refused to attend at the time and place fixed in the Notice of Examination, and therefore the affidavits should be struck pursuant to R. 34.15(1)(c).

[15] Second, plaintiffs’ counsel submits that Motion No. 4 was prepared and drafted by Mr. Silver who is counsel for Dunham and retained through LawPRO. Since Dunham and LawPRO are not parties to this proceeding, plaintiffs’ counsel submits that they have no standing and cannot bring this motion. Accordingly, plaintiffs’ counsel submits that Motion No. 4 should be struck in its entirety.

[16] Defence counsel submit that there is a valid reason for Filip and Filipova refusing to attend in person for their examinations, as set out above. Moreover, defence counsel submit that the remedy requested by the plaintiffs is too draconian in the circumstances; rather the court should give directions regarding the conduct of the examinations.

[17] Further, defence counsel acknowledge that Dunham and LawPRO are not parties to this action, but submit that Mr. Silver brought Motion No. 4 on behalf of Filip and Filipova, as agent for these defendants and their counsel.

THE RIGHT TO EXAMINE IN PERSON

[18] The Notices of Examination were served by plaintiffs’ counsel pursuant to R. 39.02 and R. 39.03, and as such are governed by the provisions of R. 34. Plaintiffs’ counsel correctly submits that the Rules of Civil Procedure provide that the named person is required to attend in person before the Official Examiner at the time and place designated in the Notice of Examination.

[19] Plaintiffs’ counsel also submits that an in-person examination is more effective than a video conference examination as it is likely that the examinee would be more conscious of the gravity of the proceedings and the requirement to tell the truth in a face-to-face examination. Moreover, counsel submits that there are subtle nuances in interpersonal contact that may not be noticeable in a video conference.

[20] Generally, I accept that face-to-face examinations have modest advantages over video conference examinations for the reasons submitted by plaintiffs’ counsel. In that respect, for the purposes of the present case, I accept and adopt the comments of Justice Weagant as set out in the case of R. v. K.S., 2020 ONCJ 328, at paras. 54 and 55, about the differences between in-person testimony and video conference testimony in the criminal law context.

[21] However, the COVID-19 pandemic has precipitated changes in many aspects of life in Ontario. The Superior Court of Justice was entirely closed for a short period of time, and when the court re-opened, all matters initially were conducted by way of video and/or audio conference hearings. These steps were taken by the court with a view to minimizing the risks to all participants in the judicial system. At this point, six months after the start of the pandemic, in-person hearings continue to be the exception rather than the rule. Consequently, I find that the Rules of Civil Procedure must be interpreted in light of the health and safety risks that still exist in the current environment.

[22] I find that plaintiffs’ counsel acted properly by serving the Notices of Examination and by requesting that the affiants be examined in person. Plaintiffs’ counsel is entitled to cross-examine on the affidavits, and I accept that a cross-examination is more effective if it is conducted face-to-face.

[23] However, in the present case, the parties had already agreed that these motions would be heard by video conference through a Zoom application. Therefore, I find that it was not unreasonable for Filip and Filipova to assume that their examinations would be by video conference.

[24] Further, it is now generally acknowledged that elderly persons, and those with underlying conditions, are at greater risk of contracting COVID-19, and are at greater risk of suffering more serious consequences if they do. I accept that Filip and Filipova were acting in good faith when they refused to attend for an in-person examination.

[25] I agree that an order striking out all of the defendants’ supporting material would not be an adequate resolution of this problem. In the absence of flagrant disregard for the court process, a motion to set aside a default judgment should be heard on its merits and the court should have the benefit of the supporting documentation in making its decision on the motion. I find that Filip and Filipova did not flagrantly disregard the court process, but instead raised a legitimate concern.

[26] In the present case, I accept that there is bona fide disagreement between the parties as to the manner in which these examinations should take place. In these circumstances, it is appropriate for this court to provide directions with respect to the conduct of the examinations, so that the defendants’ evidence can be tested before Motion No. 4 is heard. In my view, this court has jurisdiction to provide such directions pursuant to R. 1.04 of the Rules of Civil Procedure.

[27] I find that the Rules of Civil Procedure should be interpreted such that there is a presumption that an examination pursuant to R. 34 and R. 39 shall be an in-person examination. However, that presumption may be rebutted if the proposed examinee provides a legitimate reason in support of a request for the examination to be conducted in another manner.

[28] In the present case, Filip and Filipova are elderly and therefore are more susceptible to contracting and suffering from COVID-19. An in-person examination is likely to unduly increase the health risks for Filip and Filipova. Moreover, I accept that if Fillip and Filipova are concerned for their personal health because of the manner of the examination, then their anxiety and/or stress may affect their ability to answer the questions put to them on an examination. Thus, I find that the request by Filip and Filipova for an examination by video conference should be granted.

[29] Although counsel have also requested that the other three affiants be examined by video conference, I find that no evidence has been provided to this court that would rebut the presumption of an in-person examination. Specifically, there is no evidence that an in-person examination at the Official Examiner’s office, given the safety precautions that have been put in place, would expose the other proposed examinees to any significant health risk.

[30] Accordingly, I order and direct that Filip and Filipova shall be examined pursuant to R. 39.02 and R. 39.03 by way of video conferences, using a video application selected by plaintiffs’ counsel. All other aspects of R. 34 will apply. In addition, I order and direct that Dunham, Erskine and Biggs shall be examined in person pursuant to R. 39.02 in accordance with R. 34.

THE STANDING OF KEN DUNHAM AND LAWPRO

[31] For the purposes of this decision I accept that Dunham was Filip and Filipova’s former lawyer; that LawPRO is Dunham’s insurer; that Mr. Silver was retained through LawPRO as counsel for Dunham; and that neither LawPRO nor Dunham are parties to this action. I also accept that LawPRO and Dunham have an interest in the outcome of these motions.

[32] In my view, it is not unusual for the insurance company for a named party to retain counsel to represent that party in a proceeding. Counsel that are retained by insurance companies often argue cases in this court on behalf of their insured.

[33] The subtle difference here, as noted by plaintiffs’ counsel, is that Dunham and LawPRO are not parties to this action, and therefore Mr. Silver cannot purport to represent LawPRO or Dunham on these motions.

[34] However, even though Dunham, Filip and Filipova may have conflicting overall interests, for the purpose of the motion to set aside the default judgment, Dunham, Filip and Filipova have identical interests. Therefore, there is nothing improper about Mr. Silver acting on behalf of Filip and Filipova for the purpose of Motion No. 4.

[35] I accept that the motion record for Motion No. 4 is confusing. It was clearly prepared by Mr. Silver and it refers to David Silver as “Counsel to Ken Dunham, Former Lawyer for the Defendants, Andrej Filip and Elena Filipova”. In my view, this is an incomplete and misleading way of describing Mr. Silver’s role in the motion. However, I accept that the preamble in the notice of motion clarifies the issue as it states that the motion is being brought on behalf of Filip and Filipova.

[36] In my opinion, this slight error or confusion is a question of form, not substance. Clearly, present counsel of record for Filip and Filipova are Mr. Snelling and Mr. Contant. Mr. Silver is entitled to act as counsel for Filip and Filipova on this motion with the approval of Filip and Filipova and their counsel of record. I accept that this is the case before me.

[37] Accordingly, I dismiss the plaintiffs’ request to strike Motion No. 4 in its entirety because of the allegation that Mr. Silver does not have standing to bring this motion.

CONCLUSION AND DIRECTIONS

[38] For the reasons set out above, I decline to strike the affidavits in support of Motion No. 4, and I decline to dismiss Motion No. 4 in its entirety. However, the remaining motions require some organization. All counsel have suggested that I may wish to give some directions.

[39] Therefore, I make the following orders:

1. The examinations of Filip, Filipova, Dunham, Erskine and Biggs are to be conducted in the manner set out at para. 30 in this decision.

2. All counsel are to agree on a timetable for the completion of the examinations, fulfillment of all undertakings, and the rescheduling of Motion No. 4. If a timetable cannot be agreed upon by counsel, any party may bring a motion to the court for directions.

3. Motion No. 1, Motion No. 2, and Motion No. 4 are hereby adjourned without a date to be brought back on five days’ notice.

4. Motion No. 4 is to be heard and decided before any of the other motions are heard. Thereafter, the court will hear Motion No. 1, followed by Motion No. 2.

5. Motion No. 5 is hereby dismissed with the issue of costs to be argued at a date to be determined by the parties, if necessary.

[40] I decline to make any order regarding case management. I accept that it would be preferable if the same judge heard all of these motions. This may or may not be possible given that each motion may have to be heard and decided on separate dates in a specific order. I will not remain seized of this matter as it may be difficult to schedule all of these motions before me on different dates, but I remain eligible to be assigned to hear these motions.

[41] If either party is seeking an order for costs, I direct that party to deliver written submissions to the trial co-ordinator at Kitchener within 20 days of the release of this decision with responding written submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled the costs issue as between themselves.

J.R. Henderson J.

Released: September 21, 2020