COURT FILE NO.: CV-16-126117-00 DATE: 20210107
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF TAI-KIU MAK, RAYMOND CHI-FAI MAK, EDDIE CHI-KWONG MAK and STEVE CHI-WING MAK Plaintiffs
– and –
KENNY CHI-KEUNG MAK Defendant
COUNSEL: Ella Bernhard as Agent for Thomas MacClennan, for the Plaintiffs Sean Dewart as Agent for Mark Donald, for the Defendant
HEARD: December 4, 2020 and January 5, 2021
REASONS FOR DECISION
MCKELVEY J.:
Introduction
[1] This is an action arising out of an estate dispute. The Mak family was made up of two parents who had four sons. Following the death of the mother, who was the last surviving parent, this litigation was commenced by three of the four brothers who learned that a significant portion of the estate had been “gifted” to the defendant Kenny Mak. Kenny Mak asserts that his mother’s intent was to benefit him by gifting him various items of property. The remaining brothers take the position that all of the property, including that which Kenny says he was gifted, properly belong to the mother’s estate.
[2] During the course of Kenny’s cross-examination an issue arose with respect to discussions he had with his counsel during the course of the cross-examination. This issue relates to the well-known rule that counsel should not speak to their client about their evidence during cross-examination.
[3] All of the parties agreed that their examination in chief evidence would be provided by way of affidavit. Each of the parties was then subject to cross-examination by opposing counsel. During the course of Kenny’s cross-examination his counsel tendered a further affidavit which was sworn after his cross-examination had commenced. The plaintiffs objected to the admission of the affidavit and on this issue I ruled in favour of the plaintiffs. Subsequently, the defendant brought this motion for an order, “granting leave nunc pro tunc to the defendant’s lawyer of record, Mark Donald, to communicate with his client Kenny Chi-Keung Mak while Mr. Mak was being cross-examined”.
[4] For the reasons which follow, I am dismissing the defence motion.
Position of the Parties
[5] In support of their position, the defence submits that plaintiffs’ counsel was approached by Mr. Donald and expressly agreed that Mr. Donald could speak to his client for purposes of preparing a further affidavit concerning the disposal of gold which the plaintiffs assert was kept in the mother’s safety deposit box and which was wrongly taken by Kenny Mak. The defendant submits that while leave of the court was not obtained, this was an error in good faith by Mr. Donald and that in the circumstances, the appropriate remedy is to grant an order nunc pro tunc authorizing the discussion between Mr. Donald and his client which has already taken place and thereby rectifying what the defence sees as an inadvertent error on the part of Mr. Donald. The plaintiffs deny any agreement permitting Mr. Donald to speak with his client during cross-examination and further deny that the court should grant an order nunc pro tunc authorizing the discussion which took place during the cross-examination.
[6] It is apparent, therefore, that the two main issues before the court on this motion are as follows:
- Did the plaintiffs’ solicitor consent to Mr. Donald speaking to his client during the course of his cross-examination?
- What consequences flow from Mr. Donald’s discussion with his client during the course of cross-examination?
Factual Background
[7] From the commencement of this trial it was agreed by the parties that subject to some exceptions (which are not in issue for this motion) the evidence of witnesses would be given in chief by way of affidavit which would be filed with the court. Cross-examination would then take place by opposing counsel. There is a significant issue in the action with respect to the alleged wrongful appropriation by the defendant of gold which is alleged to have been stored in the mother’s safety deposit box. The claim against the defendant under this heading is $210,000.
[8] The trial in this action commenced on November 22, 2019 during the fall sittings. The fall sittings ended on December 6, 2019. As the trial had not yet been concluded the matter was put over for completion to February 12-14, 2020. The issue which is the subject of this motion arose during this timeframe and involved a discussion by Mr. Donald with his client and the preparation of a supplementary affidavit concerning his disposal of gold assets. The following is a chronology of events which are relevant to this motion:
December 5, 2019 – On this date, the plaintiffs were close to completing their evidence. On the evening of December 5, Mr. Donald reported that he received an email from his client, Kenny Mak, with respect to the issue of the gold.
December 6, 2019 – In the morning Mr. Donald spoke to Kenny Mak through an interpreter (Mr. Mak has used an interpreter throughout this litigation for purposes of giving his evidence). Mr. Donald was given information by Kenny as to how he sold some of the gold bars which were contained in the mother’s safety deposit box. Mr. Donald approached the plaintiffs’ counsel in the lawyers lounge. At this point Kenny Mak’s cross-examination had not commenced. It seems likely that this conversation took place during the lunch hour recess. It is undisputed that Mr. Donald told the plaintiffs’ solicitor that he had received further information about the gold issue from his client. He further states that he advised Mr. MacLennan of his intention to prepare an affidavit setting out more precisely Kenny Mak’s accounting with respect to the gold. Mr. Donald asserts that the plaintiffs’ solicitor agreed to this proposal and explicitly agreed that Mr. Donald could speak with his client while under cross-examination which was expected to start that afternoon. The plaintiffs’ solicitor, Mr. MacLennan, has testified that he told Mr. Donald to simply amend his existing affidavit or send him a formal notice with respect to the anticipated changes to his client’s evidence. He denies ever agreeing that Mr. Donald could speak to Kenny Mak during his cross-examination.
The cross-examination of Kenny Mak started during the afternoon of December 6. At the conclusion of the day and recognizing that this trial was being adjourned for a significant period of time, I gave the following Order to the witness:
While you are under cross-examination you are not to discuss your evidence with anyone, including your legal counsel. It is very important that you follow my order in this regard.
The court was not advised of any issue with respect to Kenny Mak’s evidence about the gold issue on December 6. At the end of the day on December 6 the trial was adjourned.
December 7, 2019 – On this date the plaintiffs’ solicitor wrote an email to Mr. Donald stating as follows:
I note that I failed to see hearsay in your client’s affidavit at paragraph 50. I will ask that it be struck upon resumption of the trial. I will review the affidavit with greater care to ensure there is no other hearsay evidence.
You indicated to me that you would be sending formal notice, about your clients recently disclosed gold sale of gold to Mr. Ho.
The reference by plaintiffs’ counsel to Mr. Mak’s affidavit at para. 50 was a reference to the affidavit filed with the court as Mr. Mak’s evidence in chief. It referenced the intention of the plaintiffs’ solicitor to try and strike one of the paragraphs in the affidavit on the grounds that it was hearsay. This does not have anything to do with the issue before the court on this motion.
December 9, 2019 – On this date, Mr. Donald sent an email to the plaintiffs’ solicitor stating as follows:
As discussed, I will have my client prepare a brief affidavit explaining the whereabouts of certain of his gold assets which he disclosed on Friday had been sold to a Mr. Ho.
The plaintiffs’ solicitor did not respond to this email. In his evidence on this motion he expressed frustration that Mr. Donald had not responded to his earlier email about the hearsay in Mr. Mak’s affidavit. He proceeded on the assumption that this matter would have to be dealt with in court when the trial resumed. He also felt that Mr. Donald was “playing games” using careful language such as “as discussed”. The plaintiffs’ solicitor stated that he did not want to engage Mr. Donald on this issue and therefore did not respond to Mr. Donald’s email.
January 29, 2020 – On this date, Mr. Donald sent the supplemental affidavit of Kenny Mak to the plaintiffs’ solicitor. The affidavit was sworn on January 27, 2020. In his email on January 29 to the plaintiffs’ solicitor Mr. Donald states:
As discussed before my client’s cross-examination began, I advised I would be preparing an affidavit regarding an accounting of gold sales to one Mr. Ho.
Please see attached.
My client’s trial affidavit has already been tendered into evidence.
February 7, 2020 – On this date, Mr. Donald sent an email to the trial coordinator with a copy to the plaintiffs’ solicitor attaching Kenny Mak’s supplementary affidavit. The email states:
This is an affidavit that was discussed amongst counsel prior to the adjournment in November and it was served a few days ago. I attach it now, and will bring the original on Wednesday, unless you or His Honour would like the original immediately, in which case I will have it couriered.
February 12, 2020 – On this date, the trial continued. At the commencement of the continuation the court was advised that there were two issues that needed to be addressed. The plaintiffs’ solicitor advised that he had discovered hearsay evidence in the main affidavit of the defendant which he had through inadvertence failed to object to. The second issue was the additional affidavit of Kenny Mak which was tendered by Mr. Donald. When he tendered the exhibit the plaintiffs’ solicitor advised that it was not being admitted on consent.
In cross-examination on this motion, the plaintiffs’ solicitor acknowledged that it was in fact the court who raised the propriety of Mr. Donald speaking to his client during cross-examination. He stated that he was initially focused on his belief that the defendant was “splitting” its case as opposed to the fact that Mr. Donald had spoken to his client.
Analysis
[9] The first issue which I must address is a credibility issue as to whether the plaintiffs’ solicitor gave his permission for Mr. Donald to speak with his client about the gold issue and to prepare a supplementary affidavit. Both counsel agree that there was discussion in the lunchroom about this issue. According to the plaintiffs’ solicitor he told Mr. Donald to amend the existing affidavit which could have been done prior to the commencement of the cross-examination or alternatively, send him a formal declaration which again would not have required Mr. Donald to engage in any further discussions with his client during the course of his cross-examination. Mr. Donald asserts that the plaintiffs’ solicitor explicitly gave permission to speak to his client during cross-examination and for him to prepare a supplementary affidavit. Mr. MacLennan denies that such a discussion took place. The positions between counsel are clearly irreconcilable although both parties in their submissions pointed out that one possibility is that there was a simple misunderstanding.
[10] I have considered the possibility that there was a misunderstanding but have concluded that this is unlikely in light of Mr. Donald’s evidence in his affidavit in support of the motion where he states at para. 8,
Given the likelihood that the trial would be put over, I suggested to Mr. MacClennan that during the break in the trial, I would prepare an affidavit from the defendant setting out his accounting of the gold. Mr. MacClennan agreed with this proposal. We explicitly discussed that this would require that I speak with the defendant while he was under cross-examination. Mr. MacClennan indicated that this did not pose a problem, as he did not intend to cross-examine the defendant regarding the gold issue that day. [Emphasis added.]
[11] I find it unlikely that if the discussion occurred as described that there could be any misunderstanding between counsel as to what was agreed to. This leaves me in the unfortunate position of having to consider the credibility as between two counsel who have both appeared to conduct themselves professionally and responsibly during the course of this trial. Both of them also appeared to be very clear and unwavering in their evidence on this issue.
[12] On the issue as to whether there was an agreement to allow Mr. Donald to discuss his client’s evidence during cross-examination, I have concluded that the onus lies on the defence to satisfy the court that such an agreement was reached on a balance of probabilities. I have concluded that the defence has failed to meet its onus in this regard. I have taken into account that where an agreement is reached between counsel on an important point such as this, the normal practice is for counsel to document the agreement in writing. In fact, Mr. Donald did write to the plaintiffs’ solicitor by email on December 9 and again on January 29. However, it is significant in my view that in these emails, he did not document any consent or agreement by the plaintiffs’ solicitor. Instead Mr. Donald only referred to “a discussion” in which he advised of his intention to have his client prepare a supplemental affidavit. On such a significant issue, and where Mr. Donald indicates in his evidence that he “explicitly raised the fact that a further affidavit would require a discussion with his client who was under cross-examination”, I would expect that any consent from the plaintiffs’ solicitor would have been documented in these emails.
[13] The defence argues that the logical inference from the emails is that the failure of the plaintiffs’ solicitor to respond is evidence of his consent. However, with respect, I do not accept this inference as it was open to the plaintiffs’ solicitor to accept the information contained in the email and wait until the trial resumed before addressing the issue. In fact, this is what Mr. MacLennan did, although Mr. MacLennan did not raise an issue about Mr. Donald speaking with his client during cross-examination, he did oppose admission of the affidavit on the grounds that the defence was “splitting its case”. I am satisfied that Mr. MacLennan did not turn his mind to the more critical issue which was Mr. Donald’s entitlement to speak to his client while under cross-examination.
[14] Defence counsel points to certain “alleged” inconsistencies in Mr. MacLennan’s evidence on this motion. In particular he refers to evidence by Mr. MacLennan that he did not respond to Mr. Donald’s emails because he thought that Mr. Donald was “playing games”. Yet, at the time in February 2020 when this issue was raised, Mr. MacLennan did not raise any objection about those discussions with the Court. It was in fact the Court which raised the issue. Further, Mr. MacLennan subsequently agreed to allow Mr. Donald to speak to his client about what steps could be taken to address the issue of his discussions with Mr. Mak. The defence suggests that Mr. MacLennan would not have permitted this if he felt that Mr. Donald was “playing games” or acting unethically.
[15] In his evidence on this motion, Mr. MacLennan testified that he was objecting to the affidavit going into evidence on the basis that Mr. Donald was attempting to “split his case”. Whether that was correct or not, it does provide an explanation as to why Mr. MacLennan reacted as he did. He did not focus on the issue that is before this Court. His explanation is consistent with the position he took at the time and I accept it.
[16] Of course, by the time Mr. Donald wanted to speak to his client about the failure to get leave of the court to speak to him, the issue was clearly “on the table”. In responding to the question as to why he was prepared to allow this when he thought Mr. Donald had been playing games, Mr. MacLennan testified that he wanted to,
approach it with an open mind, and I did not want to go in there and attack Mr. Donald. So, I wanted to accept that his error was a bonafide one. So, I wanted to approach it with an open mind.
[17] On balance, I am prepared to accept Mr. MacLennan’s explanation as a good faith effort to deal with an unfortunate situation which had developed. This explanation is consistent with the professional and responsible way counsel had conducted themselves in court during the course of this trial.
[18] As noted previously, Mr. MacLennan, stated that by using careful language like “as discussed” he felt that Mr. Donald was “playing games” and because he did not want to engage with him he therefore didn’t respond. While in retrospect it certainly would have been better had the plaintiffs’ solicitor responded to these emails, he was within his rights to leave this issue to be addressed upon the resumption of trial. It is for Mr. Donald to satisfy this court that in fact consent was given and I have concluded that he has failed to meet his onus in this regard.
[19] Even if Mr. Donald had satisfied me, however, that the plaintiffs had consented to him discussing the matter with his client during cross-examination, that was not sufficient in my view for he and his client to ignore a specific order which was given to them at the conclusion of his client’s evidence on December 6. The Court had a direct interest in preserving the integrity of Mr. Mak’s evidence and leave of the court should have been obtained before embarking on a meeting to discuss Mr. Mak’s evidence. Mr. Donald recognized this in his supporting affidavit on the motion when he states at para. 24,
I appreciate on reflection that in addition to obtaining Mr. MacClennan’s consent to communicate with my client while he was under cross-examination, which I did, I should also have sought leave of the court. I apologize for failing to do so.
[20] The importance of this principle was emphasized by Justice Lauwers (as he then was), in The Polish Alliance of Canada v. Polish Association of Toronto Limited et al., 2011 ONSC 1851. Starting at para. 22, Justice Lauwers states,
The protection of the integrity of the fact-finding process is essential to the truth-seeking function of the court, and is reflected in the laws of evidence and civil procedure, in the court’s practices, and in the professional ethics expected of lawyers. It is a fundamental commitment of the system of justice. An important aspect of this process is the need to ensure that the testimony of a witness is that of the witness alone.
In furtherance of this objective, it is a well-established legal principle that, in the absence of a court order or the consent of the other party or parties to a proceeding, a witness shall not communicate with legal counsel in the course of testifying at trial, in a cross-examination or at an examination for discovery.
[21] Although the above quote references the possibility that in some circumstances the consent of the opposing party may be sufficient to justify speaking with a witness during cross-examination, it is my view that at trial (or indeed at any time where the witness’s evidence is in dispute), leave of the court should always be obtained. This is because at trial the court is charged with the responsibility of making findings with respect to the credibility and reliability of a witness’s evidence. Because a court at trial has this responsibility and because of the potential for such discussions to affect the integrity of a witness’s evidence, I conclude that leave of the court should be obtained before there is a discussion about a witness’s evidence during the course of cross-examination. This view is consistent with the authors of The Law of Evidence in Canada (5d) (Toronto, Lexis Nexis Inc.), at para. 16.156, where they state that “once the cross-examination of a witness has commenced counsel should not converse with him or her until it is concluded, unless leave is obtained.”
[22] In the present case I have concluded that regardless of whether a consent was obtained from plaintiffs’ counsel or not, leave from the court was required before there was any discussion about the witness’s evidence. There can be no question about this in my view due to the order which was given to both the defendant and his counsel at the end of the day on December 6.
[23] In support of its position on the motion, the defendant relies on the decision of The Supreme Court in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60. This case dealt with a court’s power to suspend a limitation period as opposed to the consequences of speaking to a witness during cross-examination. In the decision, the Supreme Court talks about a court’s inherent jurisdiction to make an order nunc pro tunc and sets out certain factors which should be considered before granting such an order. These factors include:
- Whether the opposing party will be prejudiced by the order;
- Whether the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity;
- The irregularity is not intentional;
- The order will effectively achieve the relief sought or cure the irregularity;
- The delay has been caused by an act of the court; and
- The order will facilitate access to justice.
[24] I have concluded that few of these criteria would be met in the present case. I would not have been inclined to grant an order allowing the witness and his counsel to speak during cross-examination about an important issue in the case for the reasons mentioned previously. Further, not only the opposing party, but the court could be prejudiced by the order because it could affect the evidence of the witness on cross-examination.
[25] Further, to grant the order requested would set aside a previous order I made in the action. The order would therefore not cure an irregularity but rather overturn a prior decision.
[26] It is apparent that the present situation does not fit comfortably within a nunc pro tunc order as described in the CIBC decision. Counsel were unable to point me to any decision where the current facts or scenario was subject to a nunc pro tunc order.
[27] Having said that, I accept that this Court does have the inherent jurisdiction to grant relief for an error of the type in issue here. However, I have concluded that the nunc pro tunc approach is not appropriate because it represents only a binary option for the court; that is either granting an order which waives any irregularity at all or denying such relief. In my view, a court’s discretion is much broader than that. In The Law of Evidence in Canada, the authors note,
It is questionable whether, in addition to being a rule of ethical conduct, this rule is one of evidence which can result in rejection of evidence. Breach of the rule may, however, affect the weight to be given to the evidence.
[28] The above authority reflects the broad scope of discretion a court has when faced with a situation where the witness violates the expectation that there will be no discussion of their evidence with any person during the course of cross-examination. In the present case there are a number of aggravating factors. These include the fact that both the defendant and his counsel engaged in a discussion about the witness’s evidence leading up to the preparation of a further affidavit in circumstances which were in contravention of a clear court order given to those two individuals.
[29] It is also significant that in his supporting affidavit at para. 1, Mr. Donald advised that the defendant had not waived the privilege that attached to the communications in issue. While a party is not required to waive solicitor-client privilege the effect of the non-waiver in this case is that Mr. Donald could not be cross-examined on the exact content of the discussions he had with Mr. Mak leading up to the creation of the supplemental affidavit. While Mr. Donald asserts at para. 13 that his communications with Mr. Mak were confined to the preparation of his supplementary affidavit and that he did not discuss any other topics other than the accounting for gold or the manner in which the defendant had or was to give evidence, the non-waiver has significantly limited the ability of plaintiffs’ counsel to know exactly what was discussed and how it might affect the case and the court is left in a similar situation.
[30] In the Polish Alliance decision, supra., Justice Lauwers comments on the significance of an incomplete evidentiary record. He points out that where a party is seeking relief from the court where a breach of the rule with respect to cross-examination has been breached, that party runs the risk that their evidence will be rejected in total. He states at para. 36:
In such a situation the court must, in effect, put the party in breach to an election: to waive privilege and provide full disclosure of the circumstances of the breach and the content of the communications, including privileged communications, or if the party does not wish to waive privilege, to withdraw the witness’s evidence. If the party in breach elects to provide full disclosure, then the innocent party will be free to cross-examine the witness and others, including counsel, as witnesses, in pursuit of a remedy for the breach. Once the evidence is available, the court can assess which of the remedies available under rule 34.15 should be applied.
[31] The case before Justice Lauwers dealt with evidence on a pending motion. I do not propose to render Mr. Mak’s evidence at trial inadmissible because of the breach. In my view, total rejection of his evidence would not be in the interests of justice as it would effectively deprive him of the ability to respond to the claim against him. Nevertheless, in extreme cases, this is an option which in my view a court might consider.
[32] There are also significant mitigating factors which need to be taken into account. The most significant of these is that Mr. Donald made his intentions known to the plaintiffs’ solicitor prior to the commencement of his client’s cross-examination. Even on Mr. MacClennan’s evidence there was no response from Mr. MacClennan either at the time or in response to emails that he would object to the introduction of Mr. Mak’s amended evidence. On the contrary, Mr. MacClennan asked that Mr. Donald amend the existing affidavit or simply file a declaration. Both of these suggestions were apparently rejected by Mr. Donald.
[33] I also find that a significant mitigating factor is the fact that Mr. Donald did not attempt to hide the fact that he had discussions with his client about his evidence during the course of his cross-examination. When he tendered the supplemental affidavit dated January 27, 2020, it was immediately apparent that there had been discussions with his client leading to the preparation of the affidavit which triggered the court’s inquiry as to how this could have transpired without leave of the court.
[34] Finally, I accept that Mr. Donald is genuinely remorseful about speaking to his client about his evidence while under cross-examination and I accept his apology for failing to do so.
Conclusion
[35] For the above reasons, the plaintiffs’ motion for an order nunc pro tunc is dismissed. The breach of my order will be a factor I will take into account in affecting the weight to be given to Mr. Mak’s evidence, especially on the issue of the alleged unlawful appropriation of his mother’s gold. In taking into account the weight that ought to be given to his evidence, I will take both the aggravating and mitigating circumstances into account.
Justice M. McKelvey