Court File and Parties
Sudbury Court File No.: CV-19-00008627-0000 Date: 2021/02/22 Superior Court of Justice - Ontario
Re: Dinkar Shukla, Plaintiff And: John Andrew Fenton, Christopher Antonio Bourdon, Mark Andrew Henderson and Health Sciences North incorporated as Hôpital Regional de Sudbury Regional Hospital, Defendants
Before: Justice K.E. Cullin
Counsel: Paul Harte, for the Plaintiff Paul Morrison, for the Defendants
Heard: November 27, 2020, followed by written submissions
Endorsement
Summary of the Motion
1This is a motion, brought by the Plaintiff, seeking directions regarding the cross-examination of the Defendant, John Andrew Fenton (“Dr. Fenton”), on his affidavits dated October 1, 2019 and March 12, 2020. Specifically, the Plaintiff is seeking the following Orders:
a. That Dr. Fenton be required to attend for the continuation of his cross-examination; b. That the continuation of the cross-examination be video-recorded; c. That counsel for Dr. Fenton may not interrupt the cross-examination, except to provide summary objections and directions to the witness or to seek clarification of a question; d. That counsel for Dr. Fenton shall not answer or offer to answer any question on behalf of Dr. Fenton, nor to refer the witness to documents unless invited to do so by examining counsel; e. That counsel for Dr. Fenton shall not correct any answer given by Dr. Fenton except by way of re-examination or by written corrections, pursuant to the Rules; and, f. That costs thrown away of the August 25, 2020 examination and of the motion be fixed in the sum of $1,500.00.
2The Defendants argue that the cross-examination of Dr. Fenton was commenced and ended on August 25, 2020. They request an Order that the cross-examination be deemed to have ended, or to have been adjourned improperly, with no right to further cross-examination. They also request that a timetable be scheduled for their outstanding motion to strike the Plaintiff’s claim, and that they be awarded costs with respect to this motion.
Factual Background
3This motion arises in the context of an ongoing conflict between the Plaintiff and the Defendants regarding the Plaintiff’s privileges at the Defendant Health Sciences North.
4The Plaintiff is an interventional cardiologist. He alleges that the Defendants, John Andrew Fenton, Christopher Antonio Bourdon, and Mark Andrew Henderson, have engaged in a campaign intended to interfere with his hospital privileges. On August 16, 2019, the Plaintiff issued a Statement of Claim seeking damages as a result of this alleged interference.
5The full particulars of the ongoing dispute between the Plaintiff and the Defendants is not relevant for the purpose of this motion, other than to note that it has been long-standing and acrimonious.
6On September 16, 2019, the Defendants served a Notice of Motion to strike the Plaintiff’s Statement of Claim, arguing a lack of jurisdiction, res judicata, issue estoppel and abuse of process. On August 25, 2020, Dr. Fenton attended for cross-examination on his affidavits, sworn October 1, 2019 and March 12, 2020, in support of that motion.
7The cross-examination was conducted on August 25, 2020. It commenced at 10:05 a.m. and was terminated at 10:48 a.m. Present during the cross-examination were Paul Harte and Giuseppe Michelucci (via Zoom) for the Plaintiff, Paul Morrison and Lisa Spiegel (in person) for the Defendants, and Dr. Fenton (in person).
8The Plaintiff terminated the cross-examination, arguing that persistent interruptions and interference by Defence counsel were making it untenable. This motion seeks directions about the continuation of the cross-examination.
The Law
9Rule 34.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) permits the adjournment of an examination to move for directions where “the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections”.
10On a Rule 34.14 motion, the Court may make any necessary Orders to address conduct by counsel that renders the examination futile without the intervention of the Court.
11In Madonis v. Dezotti, 2010 ONSC 2180, Master Dash summarized the principles for the conduct of an examination as follows:
a. An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions. The role of counsel for the party being examined is to listen to the question asked, decide if the question is improper or incomprehensible and if so to make an objection. They must not interfere in the examination any more than is necessary to perform that function. b. Counsel for the party being examined may interrupt the proceeding for the purpose of objecting to an improper question, placing the objection on the record and directing the party either to not answer or to answer under objection, as permitted. This does not give licence to counsel for the party being examined to engage in an argument with the examiner about the question asked or to provide gratuitous information not requested. The reasons for the objection should be stated on the record briefly and simply. c. Counsel for the party being examined may also interrupt the examiner to ensure that the witness and counsel understand the question. Counsel should advise the examiner that the question is unclear or ambiguous and should not suggest what the question should be or how the question may be rephrased. Counsel must be careful not to provide inappropriate assistance to the party being examined about how to answer the question. d. Unless questions are directly put to them by the examining party, it is inappropriate for counsel for the party being examined to answer questions during the examination. The examining party is entitled to the evidence of the witness and not that of their counsel. If the examining party objects to counsel answering, counsel must refrain from answering even if they would provide a more fulsome answer than their client, or if they are in a position to correct an answer when the answer given by the party is wrong. e. If counsel conducting the examination wishes to insist on strict compliance with the Rules, they “should be clear about it”. f. It is the duty of the party and not their counsel to correct an incorrect answer. If counsel for the party being examined wishes to correct an answer they have two options: to re-examine their own client to correct, clarify, explain or complete an answer upon the completion of the examination; or, to provide the clarification, correction or completion of the answer in writing after the conclusion of the examination. Sometimes it may be more desirable to correct or clarify the answer at the time it is given, but if the examining party objects then the correction must be made in accordance with the Rules. g. Counsel must not communicate with their client during the examination except on the record, and even then, this communication should be made sparingly so as not to interfere with the flow of the examination. Counsel must not lead their own witness after the witness has given a damaging or incorrect answer since this serves to cue the witness to explain their damaging answer. Counsel must not suggest directly or indirectly to the client how a question should be answered.
12If, on a Rule 34.14 motion, the Court determines that there was no interference by counsel, the moving party will have adjourned the cross-examination improperly and the cross-examination will be deemed to have ended, with no right to further examination (Ballett v Ballett, 1999 Carswell Ont 2638 (Ont Sup Ct) at para 22).
13Among the directions sought regarding the continuation of the cross-examination, Plaintiff’s counsel has requested that the Court Order the cross-examination to be video-recorded as opposed to recorded solely on audio.
14Rule 34.19 provides that, on consent of the parties or by Court Order, an examination may be recorded by videotape or other similar means and the recording may be filed with the Court along with the examination transcript.
15Counsel for the Defendants opposes the request to video-record Dr. Fenton’s cross-examination. In support of his position, counsel relies upon the decision in Kay v. Posluns which noted that, “such orders should be granted only in rare cases”.
16In support of the Plaintiff’s position, counsel cited the decision of Hennessy J. in J.M. v. Cloutier et al., 2013 ONSC 221. In that decision, Hennessy J. noted the following:
There are no limiting factors set out in the Rules or any case law on the issue of permitting video recording of examinations for discovery. I can see no cogent argument that making a video recording of an examination would cause any prejudice to the defendant either from a cost or time perspective. Nor is there any compelling argument that the defendant would be prejudiced if at trial a video recording of his discovery was available to supplement a transcript. The act of video recording is minimally intrusive. On the other hand, should the plaintiff be required to rely on the evidence from the examination for discovery, he may be prejudiced if he had to rely on a printed transcript in lieu of a video recording. There is no good reason to deny the trier of fact the best record of the evidence.
Analysis
17At the outset, I would note that the Plaintiff’s motion does not ask the Court to determine whether the objections and refusals made by Defence counsel were proper. While the Defendants have made submissions about the proper scope of the cross-examination, they have brought no cross-motion for directions. That issue will therefore be determined another day, in the context of a motion for undertakings and refusals.
18What I have been asked to determine in this motion is whether the manner in which Defence counsel objected was appropriate, or whether his conduct justified the decision of Plaintiff’s counsel to terminate the cross-examination and bring this motion for directions.
19During the (43) minutes of cross-examination, there were numerous objections and refusals (37 in total), most of them on the grounds of relevance. If the number of objections were the only criteria to be considered by the Court, there would be no contest. One can understand why Plaintiff’s counsel became frustrated as the session progressed; the volume of objections and refusals no doubt interrupted the flow of his cross-examination.
20Although the objections made by Defence counsel were numerous, they were principled. Counsel did not object simply for the sake of objecting. It was Defence counsel’s position that the scope of the cross-examination was limited to those issues that, in his view, were relevant to the motions underlying Dr. Fenton’s affidavits. He objected to any questions that went beyond that scope.
21While Defence counsel may have been permitted to object, the way several of the objections were made was problematic. On more than one occasion, counsel editorialized while making his objections, even after being advised by Plaintiff’s counsel that his commentary was unnecessary and unwelcome. Rather than simply stating that he objected to the relevance of the questions, he repetitively advised Plaintiff’s counsel that he believed the questions exceeded the scope of the cross-examination and explained in detail why he took that position.
22In my view it was necessary once, and only once, for Defence counsel to provide a detailed explanation for his objection. This would have been sufficient to preserve his position on the record. Thereafter, a detailed explanation was not required; when making further objections for the same reason, it would have been sufficient to state succinctly that he was objecting because of relevance. It was clear that he was not going to alter the position of Plaintiff’s counsel regarding relevance. His repetitive commentary crossed the line between objecting and being obstructive. I find that it was appropriate for Plaintiff’s counsel to terminate the cross-examination and to seek the direction of the Court.
23With respect to the request for video-recording, while Plaintiff’s counsel has correctly observed that the use of Zoom has become ubiquitous during the pandemic, the video-recording of proceedings has not. I note that the video recording which took place in 1839392 Ontario Limited v. 1839314 Ontario Inc. et al., 2020 ONSC 2244, a case referenced in the Plaintiff’s Supplemental Factum, took place during the early days of the pandemic lockdown and was in response to the lack of available reporting facilities. The video-recording also took place on the consent of counsel.
24It is clear from the wording of Rule 34.19 that the video-recording of examinations is the exception and not the rule. While the Rules may eventually be amended to reflect the changing use of technology in litigation, any such amendment would first be the subject of debate; in my view, appropriately so. I can think of many reasons both for and against the video-recording of examinations. Just because technology can be used, does not always mean that it should.
25In this case, the Defendants are not consenting to the video-recording of Dr. Fenton’s cross-examination. I must therefore look to the specific circumstances of the Plaintiff’s request to determine whether this is a situation in which an exception should be made.
26In the jurisprudence submitted by counsel, the poor health of the party being examined was most often the root cause of the request for video-recording. Even in J.M. v. Cloutier et al., 2013 ONSC 221, a case referenced in the Plaintiff’s Supplemental Factum, the Defendant’s health and potential unavailability for trial were exceptional circumstances that anchored the Plaintiff’s motion.
27In the present case, the Plaintiff is seeking to video-record Dr. Fenton’s cross-examination not because of any circumstances pertaining to Dr. Fenton, but rather to record the conduct of Defence counsel in the event that a further motion for directions is required.
28Disagreements between counsel during examinations are neither unusual nor exceptional. It would be a rare situation in which the Court requires a video to assess what occurred between counsel during an examination – invariably, the transcript gives the Court a clear picture of the dispute, and often its tone as well. While a video recording may animate the discussion, this evidence is not necessary for the Court to discharge its decision-making role. Indeed, the prospect of inundating the Court with “Lawyers Gone Wild” videos makes opening this evidentiary door undesirable.
29I would also note that this is not a situation in which the Court requires a video record of Dr. Fenton’s cross-examination evidence to determine the issues on the underlying motion. This is a motion to dismiss the Plaintiff’s action for legal and procedural reasons; it is going to proceed on a written record. The purpose of the cross-examination is to expound upon Dr. Fenton’s affidavit evidence to ensure, from the Plaintiff’s perspective, that the record is complete. Nothing about this motion requires the submission of video evidence.
30For these reasons, I am denying the Plaintiff’s request to video-record the continuation of Dr. Fenton’s cross-examination.
31With respect to the issue of costs, this motion was made necessary by the conduct of defence counsel during the cross-examination. The Plaintiff has been substantially successful on the motion, and the costs requested are extremely reasonable. I am therefore Ordering costs in favour of the Plaintiff, payable forthwith.
Orders
32I hereby Order as follows:
a. That the Defendant, John Andrew Fenton (“Dr. Fenton”), shall re-attend for the continuation of his cross-examination, on a date and time to be agreed upon between counsel or failing agreement on a date and time to be fixed by counsel for the Plaintiff in accordance with the Rules. b. That counsel for Dr. Fenton may not interrupt the cross-examination, except: i. to provide, once, a precise statement of any objection and the reasons for that objection; ii. thereafter, to provide summary objections and directions to the witness; and, iii. to seek clarification of a question. c. That counsel for Dr. Fenton shall not answer or offer to answer any question on behalf of Dr. Fenton, nor to refer the witness to documents unless invited to do so by examining counsel. d. That the lawyer for Dr. Fenton shall not correct any answer given by Dr. Fenton except by way of re-examination or by written corrections, pursuant to the Rules. e. That the Plaintiff’s request that Dr. Fenton’s cross-examination be video-recorded pursuant to Rule 34.19 is denied. f. That, if counsel are unable to agree upon a timetable for Dr. Fenton’s cross-examination and the Defendant’s motion, a Conference may be requested pursuant to Rule 50 for a Court-imposed timetable. g. That costs thrown away of the August 25, 2020 examination and of the motion be fixed in the sum of $1,500.00, payable forthwith by the Defendants to the Plaintiff.
Cullin, J.
Date: February 22, 2021