Court File and Parties
COURT FILE NO.: CV-09-375888 MOTION HEARD: 20200207 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amelin Engineering Ltd. and Michael Elinson, Plaintiffs AND: Steam-Eng Inc. and Blower Engineering Inc., Defendants
BEFORE: Master Jolley
COUNSEL: Thomas Dumigan and Matthew Diskin, Counsel for the Moving Party Plaintiffs Rachel Laurion, Counsel for the Responding Party Defendants
HEARD: 7 February 2020
REASONS FOR DECISION
BACKGROUND
[1] Tom Byrnes, Sr. is the president of the defendant companies and was the key individual involved in the events that give rise to this litigation. Mr. Byrnes is presently 89 years old. He suffered a stroke in 2011. In June 2019 he reported to a physician practising in dementia care that he has had a progressive decline in his short term memory since 2017.
[2] Given Mr. Byrnes’ age and the issues around his memory, the plaintiffs seek an order pursuant to Rule 36 permitting them to cross-examine him before trial. (As discussed below, all parties’ evidence in chief is being tendered through affidavit evidence.) The plaintiffs propose that Mr. Byrnes’ out-of-court cross-examination be videotaped to preserve his evidence in the event it is required for trial. Mr. Byrnes will then be cross-examined at trial in the usual course. If issues then arise as to his memory, the videotaped evidence will be available with leave of the trial judge in lieu of that cross-examination.
[3] The plaintiffs made their request in October 2019 shortly after they became aware of this memory concern. At a trial conference held 9 December 2019, Kimmel, J. ordered that this motion “to examine Mr. Byrnes in advance of trial on his affidavit evidence in chief and other matters he might have been cross examined on at trial, in light of his failing health and to preserve his evidence at trial” be heard in the first two weeks of February and was ultimately scheduled to be heard today.
[4] The trial procedure has been subject to court direction which includes an order of Wilson, J. made in February 2019 that the parties tender their trial evidence in chief by way of affidavit with cross-examinations to take place at the trial set for September 2019.
[5] The parties exchanged their affidavits, with Mr. Byrnes delivering his unaffirmed affidavit on 4 April 2019 and an affirmed copy on 10 May 2019. For reasons outside the parties’ control, the trial did not proceed in September 2019 and is now set to commence on 19 May 2020.
[6] The defendants object to Mr. Byrnes being cross-examined out-of-court in advance of the trial, arguing that the extra examination will cause Mr. Byrnes stress, which is not offset by any advantage to be gained by the plaintiffs cross-examining him eight weeks or so earlier than they will otherwise do. They further argue that, as the plaintiffs are not the party that intends to introduce the evidence of Mr. Byrnes at trial, they do not fall within Rule 36.01(2) and this court does not have jurisdiction to grant the order requested.
ANALYSIS
[7] On a motion seeking an examination before trial, Rule 36.01(3) directs the court to consider the following factors when exercising its discretion:
(a) the convenience of the person whom the party seeks to examine;
(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity, or sickness;
(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;
(d) the expense of bringing the person to the trial;
(e) whether the witness ought to give evidence in person at the trial; and
(f) any other relevant consideration.
[8] For the following four reasons, I am satisfied that the plaintiffs should be permitted to cross-examine Mr. Byrnes out-of-court in advance of the trial.
[9] First, the plaintiffs are prepared to conduct the cross-examination in a manner and at a place convenient to Mr. Byrnes. They are prepared to wait until mid March so that Mr. Byrnes’ counsel will have adequate time to meet with him after his return to the country at the end of February.
[10] Second, I am not satisfied that Mr. Byrnes will endure undue stress as a result of being cross-examined twice. Through this process, Mr. Byrnes will be given some advance notice of the type of questions he may be asked and the style of cross-examination he can expect at the May trial. That dry run may ultimately reduce his stress when his in-court cross-examination takes place.
[11] Third, I find there is a possibility that Mr. Byrnes will be unavailable to testify at trial. He himself has reported an insidious and progressive decline in his short term memory that has been ongoing since 2017. While the defendants argue that there is no evidence that Mr. Byrnes’ long term memory has suffered, their own actions suggest that they have concerns about his memory. By way of example, the parties agreed that they would exchange unsworn affidavits with placeholders for the exhibits. A joint document book would be prepared containing all the exhibits and then the affidavits amended simply to reflect the updated references to the documents in the joint exhibit book. The joint document brief was finalized in August 2019 and the affidavits were then ready to be completed and sworn. The plaintiffs finalized and swore their affidavits on 12 September 2019. However, defendants’ counsel did not have Mr. Byrnes affirm an updated affidavit, but have chosen to rely on his affirmed May 2019 affidavit, given their own concerns about his memory, which came to light after the May 2019 affidavit was signed.
[12] Memory issues aside, it is important to secure the cross-examination evidence of a key 89 year old witness, in the event that there is an unforeseen issue between now and mid May or the trial is unexpectedly adjourned.
[13] Fourth, on the issue of cost, all parties agree that Mr. Byrnes will attend at trial in the normal course. I order the plaintiffs to bear the cost of this out-of-court cross-examination, subject to any later direction of the trial judge. Should the out-of-court cross-examination not be required at trial, the defendants will be free to seek the costs they incurred to prepare for and attend that cross-examination, in any event of the outcome of the trial.
[14] I am also satisfied that, in the circumstances of this case, the order is available and appropriate.
[15] The defendants rely on the specific language of Rule 36.01(2) and on Aviaco International Leasing Inc. v. Boeing Canada Inc. 2000 CarswellOnt 2194 for the proposition that only a party who intends to introduce the evidence of a witness can seek an out-of-court examination of that witness. I distinguish this case for two reasons.
[16] First, in denying the motion, the court relied on the fact that the defendants undertook to call the witness in question at trial. As a result, the witness’ evidence in chief would be given contemporaneously with the cross-examination and both would be impacted equally in the event of any issues concerning the elderly witness’ attendance. In this case, because the defendants have already captured the evidence of Mr. Byrnes in his affidavit affirmed in May 2019, the defendants’ undertaking to call Mr. Byrnes at trial does not have the same balancing weight as it did in Aviaco. Any memory issues that surface at trial will only affect the defendants’ cross-examination.
[17] Second, the manner of trial and the presentation of the evidence in the case has been subject to trial management by Wilson, J. and does not follow the traditional trial process where all evidence is presented in court. It makes little practical sense to rigidly adhere to Aviaco, given Mr. Byrnes’ trial testimony has already been captured in his affidavit and that given that in chief evidence will have been fixed more than a year before the date when Mr. Byrnes will be cross-examined. I would find it unfair in these circumstances to have the defendants protected from any negative change in Mr. Byrnes’ memory while leaving the plaintiffs potentially subject to its vagaries.
[18] This is not to say that the transcript will be needed or that the trial judge will admit it, but it goes a way to ensuring the court has the best evidence available at the time of trial. I find that securing Mr. Byrnes’ cross-examination evidence before trial helps to secure the just, most expeditious and least expensive determination of this long standing action on its merits.
CONCLUSION
[19] For the reasons set out above, the motion is granted. The examination shall be videotaped and shall proceed at a time in March and at a location convenient to Mr. Byrnes, at the initial expense of the plaintiffs.
[20] The parties have agreed that the unsuccessful party on the motion will pay the successful party $2,500 in costs. The defendants shall pay the plaintiffs $2,500 within 30 days of the date of this decision.
Master Jolley
Date: 12 February 2020
CORRECTION TO PARAGRAPH 20 OF REASONS FOR DECISION
COURT FILE NO.: CV-09-375888 MOTION HEARD: 20200207 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amelin Engineering Ltd. and Michael Elinson, Plaintiffs AND: Steam-Eng Inc. and Blower Engineering Inc., Defendants
BEFORE: Master Jolley
COUNSEL: Thomas Dumigan and Matthew Diskin, Counsel for the Moving Party Plaintiffs Rachel Laurion, Counsel for the Responding Party Defendants
HEARD: 7 February 2020
[21] The following paragraph replaces the corresponding paragraph in the original decision released on 12 February 2020:
[20] The parties have agreed that costs of the motion will be in the cause.
Master Jolley
Date: 13 February 2020