COURT FILE NO.: DV-18-594854

DATE: 20201119

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: sina akhavan, Plaintiff

AND:

siavash taheri, Defendant

BEFORE: Davies J.

COUNSEL: Ronald Flom, for the Plaintiff

Peter Smiley, for the Defendant

HEARD at Toronto (by video): October 23, 2020

REASONS FOR DECISION

[1] Mr. Akhavan is seeking recover of money that Mr. Taheri allegedly owes to him based on two promissory notes. The trial is scheduled to proceed on November 2, 2020. Mr. Taheri is 87 years old and has significant health issues. He brought a motion under rule 36.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for permission to give his evidence before trial outside of court. He also sought leave to present his evidence-in-chief by way of affidavit.

[2] Mr. Akhavan consented to Mr. Taheri giving his evidence before trial by video to accommodate his health issues but opposed his request to file an affidavit in lieu of examination-in-chief.

[3] By order of Justice D. Wilson dated September 25, 2020, I was appointed the case management judge in this matter. I heard this motion on October 23, 2020. I issued a very brief endorsement that day granting Mr. Taheri’s motion. These are my reasons for that decision.

[4] Rule 36 authorizes the taking of evidence before trial from a witness or a party. Rule 36.04(4) contemplates that the transcript and recording of the evidence given by a party before trial can be adduced as that party’s evidence at trial. Rule 36.01(3)(a) says that the Court must consider several factors when deciding whether to allow a witness to testify before trial, including the possibility that the witness may be unable to testify at trial by reason of illness and whether the person ought to give evidence in person at the trial.

[5] This trial was originally scheduled for September 28, 2020 but was adjourned to November 2, 2020 because of Mr. Taheri’s health. I am concerned that the trial may be adjourned again if Mr. Taheri’s evidence is not taken outside of court. If Mr. Taheri’s evidence is given in a manner that accommodate his health issues before November 2, 2020, there is little risk the trial will be adjourned further. If Mr. Taheri’s evidence is videotaped, the trial judge will be in a position to fully assess his evidence as though he was testifying at trial. I am, therefore, satisfied that it is appropriate to allow Mr. Taheri to give his evidence before trial.

[6] The real issue on this motion is whether Mr. Taheri should be permitted to adduce his evidence way of an affidavit. Mr. Flom concedes that I have jurisdiction as the trial management judge to permit Mr. Taheri to adduce his evidence by way of affidavit but argues that it would be unfair to allow him to do so in this case.

[7] The main issue at this trial will be the credibility of the witnesses and the reliability of their evidence. Mr. Flom argues that permitting Mr. Taheri to file an affidavit is tantamount to allowing counsel to give evidence for Mr. Taheri. Mr. Flom repeatedly referred to the affidavit from Mr. Taheri as “counsel created evidence.”

[8] Mr. Flom also argued that allowing Mr. Taheri to adduce his evidence by affidavit would be akin to counsel ask Mr. Taheri leading questions in examination-in-chief, which is generally prohibited. Mr. Flom argues that in a case where credibility is a crucial issue, it would be unfair for counsel to be able to shape Mr. Taheri’s evidence in this manner. Mr. Flom is concerned that Mr. Taheri’s affidavit will set out a clear, coherent narrative that does not reflect Mr. Taheri’s true recollection of events. He argues that Mr. Taheri should be required to give his evidence as though he were testifying in court in response to non-leading questions.

[9] While I appreciate Mr. Flom’s concerns, particularly in a case where credibility is a significant issue, in my view, they are exaggerated and can all be addressed through cross-examination.

[10] First, while counsel will inevitably draft Mr. Taheri’s affidavit, it is Mr. Taheri who will swear or affirm that the contents of the affidavit are true. Counsel cannot “create” Mr. Taheri’s evidence. Counsel cannot include information in the affidavit that Mr. Taheri does not remember or cannot swear to be true. Mr. Smiley is bound by the rules of professional conduct and his obligations as an officer of the court. I have every confidence that Mr. Smiley will comply with his professional and legal obligations when preparing Mr. Taheri’s affidavit.

[11] Second, any concerns that Mr. Flom has about the veracity of Mr. Taheri’s affidavit or his ability to recall the facts he attests to in his affidavit can be addressed in cross-examination. Mr. Flom will be able to fully test Mr. Taheri’s memory and the accuracy of each statement in his affidavit. Mr. Flom will be able to put documents to Mr. Taheri. Mr. Flom will also be able to put any prior statements to Mr. Taheri during cross-examination. Mr. Flom will be able to cross-examine Mr. Taheri just as he would at trial.

[12] If Mr. Taheri’s testimony on cross-examination differs from his affidavit, or if he cannot recall details that are in his affidavit, or if other evidence contradicts him, Mr. Flom can use that to urge that the trial judge to reject Mr. Taheri’s affidavit evidence. While Mr. Taheri’s affidavit will be evidence given under oath, that does not mean that the trial judge will necessarily believe it or accept it.

[13] Finally, I note that in every trial under the simplified proceedings, the parties adduce all evidence by affidavit and the deponent are subject to cross-examination: see rule 76.12(1). Credibility is often an important issue at a summary trial. If I were to accept Mr. Flom’s argument, that would mean that every summary trial in which credibility is an important issue would be inherently unfair.

[14] Both parties urged me to consider the case of Cormack Animal Clinic Ltd. v. Potter, 2009 ONSC 713. In that case the plaintiff, Dr. Cormack was 87 years old at the time of trial and suffered from dementia. As a result, he was not able to testify. His counsel brought a motion to admit two affidavits sworn by Dr. Cormack earlier in the proceedings. The trial judge granted the motion and allowed the defendants to file excerpts from the cross-examination of Dr. Cormack on the affidavits as well as his examination for discovery. The trial judge in Cormack held that rule 53.02(1), which allows a trial judge to permit a party to adduce evidence by affidavit “unless an adverse party reasonably requires the attendance of the deponent at trial for cross-examination”, does not apply in situations where a witness is not available to testify. The trial judge held that rule 53.02(1) simply permits uncontentious facts to be proven by way of affidavit to save valuable court time: see Cormack at para. 27. The Court considered whether Dr. Cormack’s affidavits was admissible under the principled exception to the hearsay rule and ruled that it was.

[15] In my view, the decision in Cormack has no application here. This is not a case where the witness is unavailable to testify. Mr. Taheri is available to testify and will be subject to full cross-examined by Mr. Flom on all issues relevant to the trial. The issue on this motion is simply how Mr. Taheri will give his evidence for this trial. Counsel is not asking to rely on evidence Mr. Taheri has given for another purpose at an early time in the proceedings. His evidence will be given just a few days before the trial is to start and will be recorded by video. This request is simply being made to accommodate him because of his health problems.

[16] Given the seriousness of his health concerns, I am satisfied that it is appropriate for Mr. Taheri’s to give his evidence by affidavit. In my view, if given a full opportunity to cross-examine Mr. Taheri, Mr. Akhavan will not be prejudiced by this process.

Davies J.

Date: November 19, 2020