Court File and Parties

COURT FILE NO.: CV-19-612074

MOTION HEARD: 20191206

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Danny Antonopoulos

AND:

The City of Toronto and Maria Alkis (A.K.A. Maria-Vasiliki Alkis)

BEFORE: Master Abrams

COUNSEL: T.N. Nguyen, for the Plaintiff

R. Egit, for the Defendant, Maria Alkis

HEARD: December 6, 2019

REASONS FOR DECISION

[1] Parties to an action have an inherent right to be present during the examination for discovery of other parties to/witnesses in an action. “…The presence of a party at the examination for discovery…is consistent with due process and the right to protect his…interests by observing the conduct of the examination…” (Baywood Paper Products Ltd. v. Paymaster Cheque-Writers (Canada) Ltd., 1986 CarswellOnt 465 (Dist. Ct.), at para. 20).

[2] That said, the court has the discretion to exclude parties from an examination for discovery and will do so in exceptional circumstances. An exclusion Order may be made where the court is satisfied, on a balance of probabilities, that there is cause to justify the exclusion. Such cause must be realistic and substantial and must be cause that would result in prejudice to the party to be examined or would be “necessary to secure the ends of justice” (ICC International Computer Consulting & Leasing Ltd. v. ICC Internationale Computer & Consulting GmbH, 1988 CarswellOnt 50 (HCJ), at para. 6(3)).

[3] “One must look at the competing interests, and the party seeking the exclusion has the onus to demonstrate it is necessary to meet the ends of justice” (Stratuik v. Corporal Fenner et al., 2019 ONSC 3424), at para. 23). An exclusion Order may be warranted in circumstances where evidence is likely to be tailored; evidence is likely to be parroted; a party is likely to be intimidated; and/or the proceedings are likely to be disturbed or disrupted (Lesniowski v. H. B. Group Insurance Management Ltd., 2003 CarswellOnt 9238 (ONSC), at para. 18).

[4] The personal defendant here seeks the exclusion (from her examination for discovery) of the plaintiff[^1], a person whom she alleges sexually assaulted her at work, and who, following an investigation by their respective employer, had his employment terminated for cause. The plaintiff denies having sexually assaulted the personal defendant and has brought claim against her for, inter alia, defamation and, against their employer, for wrongful dismissal.

[5] Whatever the merits of the plaintiff’s claim or the strength (or weakness) of the defences herein, there is no question but that the personal defendant was diagnosed with Major Depressive Disorder and Post-Traumatic Stress Disorder following her interactions with the plaintiff (even if, as the plaintiff points out, she had earlier presented with some mental health issues) and has been under the continuing care of an occupational therapist and a clinical psychologist. That psychologist (Dr. Carroll, Ph.D., C.Psych) draws a direct connection between the personal defendant’s interactions with the plaintiff and the personal defendant’s current Major Depressive Disorder and Post-Traumatic Stress Disorder diagnoses. As recently as October 2019, Dr. Carroll reported on the personal defendant’s continued emotional and mental health issues—with the personal defendant having seen her psychologist in session, at least as at then, some 85 times. Of note, and indicative of her mental state, the personal defendant has not returned to work since she left--ostensibly as a result of her interactions with the plaintiff.

[6] The personal defendant has deposed that she is “extremely fearful” about seeing the plaintiff; that she would “find his presence intimidating”, in the context of being questioned about their interactions; and, that she is “concerned about the detrimental impact his presence at discovery would have on [her] mental health and the progress [she] ha[s] made though [her] treatment” (affidavit of the personal defendant, sworn October 31/19). As an exhibit to her affidavit, the personal defendant has appended a letter from Dr. Carroll. Dr. Carroll writes that it is her “clinical opinion [as the personal defendant’s treating psychologist] that being in a room, seeing, or interacting with [the plaintiff] in any capacity would be significantly re-traumatizing for [the personal defendant]…[with] such an encounter [being] highly likely to result in a significant setback which will lead to an exacerbation of [the personal defendant’s] PTSD and depressive symptoms”. Dr. Carroll “strongly [recommends] that all efforts…be made to ensure that the [plaintiff and personal defendant]…not meet or interact during discovery…”.

[7] In the case at bar, the personal defendant’s allegations as against the plaintiff were found by their (his) employer to have been “either fully substantiated or substantiated in part”. I do recognize, and now note, that the plaintiff denies any wrongdoing, meriting his dismissal.

[8] The personal defendant has given evidence as to her feelings of intimidation and fear--in respect of the plaintiff and arising out of the interactions with him on which she will be questioned at discovery. An objective basis for these feelings has been found by the personal defendant’s treating psychologist who, here, warns against the presence of the plaintiff during the personal defendant’s discovery.

[9] I realize that the plaintiff denies having sexually assaulted the personal defendant. I realize too that he challenges the propriety and fairness of the investigation undertaken by his (their) former employer, pointing out that the police have never investigated the personal defendant’s claims as they relate to him. Further, I acknowledge that there is a notation in the Investigative Report that the personal defendant had earlier suggested that she was interested in sitting down with the plaintiff, in the presence of management, to discuss his alleged misconduct. The notation is not a direct quote and its reliability is questionable (it is a report by someone as to what he was told the personal defendant had said); but it is there. I have considered all of this.

[10] I balance this with the fact that the personal defendant alleges being a victim of a sexual assault perpetrated by the plaintiff; that the personal defendant’s treating psychologist indicates that she is being and has been treated for psychological sequelae following the alleged incident in respect of which the plaintiff’s employment was terminated; and that the personal defendant’s treating psychologist urges exclusion, as sought, for the sake of her patient’s (client’s) mental health.

[11] The plaintiff submits that he will “not engage in any inappropriate behavior or seek to intimidate [the personal defendant] at her examination for discovery” and I have no reason to doubt that this is so. However, I do have reason to believe, supported by evidence (including the opinion proffered by the personal defendant’s treating psychologist--borne of multiple sessions deriving from treatment temporally proximate to the interactions on which the personal defendant will be questioned), that the plaintiff’s presence during the personal defendant’s examination for discovery would present a real and substantial probability that intimidation (whether or not intended) is likely to occur.

[12] Having regard to the evidence adduced and the authorities cited (and on which the parties relied), and in all, I think it to be in the interests of justice that the plaintiff be excluded. I am persuaded that the plaintiff’s “presence at [the personal defendant’s] discovery would be traumatizing and could lead to a significant setback in her mental health”. The personal defendant’s motion is thus granted.

[13] My ruling on the issues raised on this motion in no way reflect on the strength or weakness of either party’s position in the litigation. And the fact that the exclusion of the plaintiff from the personal defendant’s discovery was not specifically referenced in the parties’ discovery plan is not a bar to the issue having been raised now. Discovery plans evolve.

[14] Further, and finally, though the plaintiff deposes that it is crucial for him to be able to attend the discovery to hear the personal defendant’s evidence and instruct his counsel accordingly, I do note that this is not a case of the plaintiff not knowing what the evidence of the personal defendant might be. Indeed, the plaintiff himself has reproduced as part of his motion record excerpts and interview transcripts from the Investigative Report that led to his termination and forms the backdrop of his lawsuit (the full text of which are available to him[^2]). He now knows (and his lawyer can prepare knowing) what the personal defendant has already said about him and their interactions, and what she is likely to say when discovered.

[15] I accept, as posited on behalf of the personal defendant, that “[t]he risk of the harm to [the personal defendant] of [the plaintiff] attending her examination for discovery…outweighs any prejudice to [the plaintiff]”.

[16] The parties have filed costs outlines with me. If they wish me to decide the issue of costs, I am to be so advised—by February 21/20. If no request for a costs determination is made, I will assume that the issue has been settled.

January 29, 2020 ____________________________

[^1]: The motion is not opposed by the personal defendant’s co-defendant.

[^2]: Indeed, the full text of the Investigative Report was reproduced in the personal defendant’s Supplementary Motion Record.