Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Manoj Kumar Kaushal, Applicant
AND:
Balwinder Kumar Vasudeva and 2624102 Ontario Inc., Respondents
BEFORE: C. Gilmore, J.
COUNSEL: Alastair McNish, Counsel for the Applicant
Jordan Goldblatt, Counsel for the Respondents
HEARD: January 8, 2021
ENDORSEMENT on motion
OVERVIEW
1This is the Applicant’s motion to strike out the evidence of the Respondent Balwinder Vasudeva (“the Respondent”) on the basis of misconduct during his cross-examination and on the grounds of abuse of process.
2The motion, while not lengthy, took some time to organize given the implications of this ruling with respect to the conduct of virtual examinations.
3The motion was originally returnable on December 4, 2020. The Respondent claimed it had been short served and sought an adjournment. Given the nature of the motion, I required it come back before me on December 11, 2020 and ordered a schedule for the delivery of materials. After reviewing the material, it became clear that there were serious allegations of misconduct involving both the Respondent and his lawyer Mr. Makori. As such, it was determined by this Court that a clear and transparent process was required to ensure that the evidence before the Court was properly tested.
4By my Order dated December 11, 2020, the parties, the interpreter and another affiant who is a legal assistant at Mr. Makori’s office, Mr. Peter Nyamiaka, were ordered to appear on a new motion date, namely December 16, 2020 and cross-examinations were to be conducted in my presence. The Respondent was to have a different interpreter and the parties were advised that they would be required to demonstrate to the Court that they were alone during their cross-examination.
5On December 15, 2020 at 2:06 p.m., I received an email from Mr. Makori requesting a further adjournment. He advised that it would not be appropriate to act for the Respondent on the motion when his client would be examined on evidence ostensibly obtained through him. Further, Mr. Makori had been put on notice that costs were being sought against him personally.
6On December 16, 2020, Mr. Adair, for LawPro, appeared on behalf of Mr. Makori and the Respondent, and sought an adjournment. I granted the adjournment on terms including a requirement that examinations take place by January 5, 2021 and costs thrown away of $4,000 in favour of the Applicant. Given that Mr. Adair’s firm was involved, and Mr. Makori would not be arguing the motion, I did not require that the examinations be supervised by the Court.
7The evidence on this motion consists of the motion materials prepared for the original return date as well as additional materials filed after the completion of examinations. The Court also had the benefit of transcripts of the cross-examination of the Respondent (both the November 12, 2020 examination and the December 29, 2020 examination), Mr. Nyamiaka, and the interpreter Mr. Rajinder Singh (“Mr. Singh”).
LITIGATION BACKGROUND
8The background to this motion is the Applicant’s Application issued on July 23, 2020. In that Application he seeks the following relief;
a. an Order compelling the Respondent to sell his shares in the Respondent company 2624102 Ontario Inc. (“the Franchise”) to the Applicant at fair value;
b. an Order requiring the Respondent to account for all funds that he and his immediate family have received from the Franchise;
c. an Order that, in determining the fair value of the Respondent’s shares, any funds removed from the Franchise by the Respondent or his immediate family member be deducted from the amount the Applicant is required to pay to acquire the shares;
d. an Order removing the Respondent as an Officer and Director of the Franchise, and an interim Order suspending the Respondent as an Officer and Director of the Franchise and appointing the Applicant or his designate as the manager of the Franchise;
e. a declaration that the Respondent’s actions, as a shareholder and Director of the Franchise, have been conducted in a manner that is oppressive;
f. In the alternative, an Order that the Applicant may sell the Franchise and receive fair value for his shares.
9The Franchise was incorporated by the parties in order to acquire and operate a restaurant franchise in Brampton, namely a Chuck’s Roadhouse Bar and Grill. The parties jointly purchased the restaurant and opened it in March 2019. Each of the parties is a 50% shareholder and a Director of the Franchise.
10The Applicant alleges that the Respondent unilaterally increased his salary and that of his son and wife who were employed at the restaurant. The Applicant alleges that this was done without his knowledge and to a level that could not be supported by the revenues from the business, including during lockdown periods. This excess salary expense created problems with the Franchisor, the Obsidian Group Inc.
11The Applicant also alleges that the Respondent blocked the security cameras at times in order to engage in secretive conduct, including allegedly withholding appropriate tips from servers and staff.
12The Applicant has requested, but not received, an accounting of the business revenues and expenses and the ability to review books and records.
13A hearing of the Application was originally scheduled for December 4, 2020 but must now be rescheduled due to the events leading to this motion. The cross-examination of the Respondent was scheduled for November 12, 2020 in preparation for the originally scheduled Application hearing. This motion relates to the conduct of the Respondent at that cross-examination.
THE CROSS-EXAMINATION ON NOVEMBER 12, 2020
14The Respondent’s cross-examination on his affidavit sworn October 26, 2020 took place via Zoom on November 12, 2020. The Respondent, Mr. Makori and the Punjabi interpreter for the Respondent were present in Mr. Makori’s boardroom for the examination but on separate devices so that each had a separate participant window for the Zoom attendance. The court reporter and examining counsel (“Mr. McNish”) attended from elsewhere on separate computers. The Applicant also attended from a separate computer.
15According to the Respondent, his wife and son came with him to the examination but remained in the reception area of Mr. Makori’s office at all times and were never in the room during the examination.
16Mr. McNish was careful at the outset of the examination to confirm with the Respondent that the only people present in the boardroom during the examination were him, the interpreter and Mr. Makori. This was confirmed on the record by Mr. Makori.
17After the examination was over, the Applicant remained on the Zoom meeting and noticed that a microphone and video camera on one or more of the devices used for the examination in Mr. Makori’s boardroom were still on. The Applicant could hear the voices of the Respondent’s wife (“Yogita”) and his son (“Rubal”). The Applicant recognized their voices as they all worked together in the Franchise restaurant. The court reporter and the interpreter were still on the link, so the Applicant continued to listen.
18The Applicant became alarmed when he heard some exchanges between Yogita and Rubal and the interpreter including the following:
a. The interpreter said, “When he’s asked a question you confused him. You should have prepared him properly about what your answers were going to be.”
b. Rubal said, “We got the papers out last night at 10:00 pm.”
c. The interpreter said, “When you are sitting there doing ‘this’ it was hard for him.”
d. Yogita said: “No, no he still answered well and gave excellent answers.”
19It was clear to the Applicant, from what Yogita was saying, that she had listened in on the examination. The Applicant recorded the exchanges on his cell phone and included the audio file in his original motion record.
20The Applicant then called Mr. McNish and asked that he come back on the Zoom call. Mr. McNish did so and requested that the court reporter remain. Mr. McNish went back on the record and told Mr. Makori what he had learned from his client. Mr. Makori denied that anyone else was in the room during the examination except him, his client and the interpreter. A transcript of this confirmation was included in the Applicant’s motion record.
21The interpreter provided an affidavit sworn on November 29, 2020. He confirmed that he was retained by Mr. Makori and attended at the subject examination in order to provide interpretation services in the Punjabi-English languages. When he arrived at the examination, there was no one in the waiting area. He deposed that Mr. Makori, the Respondent, and the Respondent’s wife and son were in the boardroom when he entered for the examination. Mr. Singh had never met Mr. Makori, the Respondent or his family prior to November 12, 2020.
22Mr. Singh’s evidence was that the people in the boardroom then seated themselves in preparation for the examination. Mr. Makori sat at the head of the table, Mr. Singh sat to Mr. Makori’s left and the Respondent to Mr. Singh’s left. Yogita sat to Mr. Makori’s right and Rubal to Yogita’s right. Mr. Singh deposed that throughout the examination, Yogita and Rubal were prompting the Respondent with answers by hand and facial gestures.
23In his affidavit sworn December 9, 2020, the Respondent denied that his wife and son were with him during the cross-examination. His evidence was that they remained in the reception area throughout. Further, that the Respondent was advised by Mr. Makori that the interpreter had called to inform Mr. Makori that Mr. McNish had threatened him and his career as an interpreter if he did not swear the affidavit that Mr. McNish had prepared. The Respondent further deposed that the contents of the interpreter’s affidavit are that of Mr. McNish and not the interpreter.
24The Respondent included in his responding record the affidavit of Peter Nyamiaka. Mr. Nyamiaka’s evidence was that he was in the office when the Respondent arrived for his cross-examination. The Respondent was accompanied by his wife and son. Just before the examination began, he brought the Respondent into the boardroom leaving his wife and son at reception until the end of the examination. After the examination was over, the Respondent’s wife and son went into the boardroom to provide food and medication to the Respondent who is diabetic. Mr. Nyamiaka denies that the Respondent’s wife and son were in the boardroom during the examination.
25Mr. Nyamiaka’s evidence was that the interpreter contacted Mr. Makori and advised him that he was threatened by Mr. McNish even when the interpreter explained to Mr. McNish that the Respondent’s wife and son did not come into the boardroom until the examination was over. According to Mr. Nyamiaka, he was informed by Mr. Makori that the interpreter sounded terrified as he did not know what to do in the face of Mr. McNish’s threats in relation to the affidavit he was required to swear.
26The interpreter swore a further affidavit on December 10, 2020 in response to the affidavits of the Respondent and Mr. Nyamiaka. The interpreter confirmed that he did call Mr. Makori after receiving Mr. McNish’s enquiries following the examination. Mr. Makori advised him that since the interpreter’s services had been completed, he was “out of the picture.”
27The interpreter deposed that “I was very uncomfortable because I knew what had happened at the cross-examination was wrong, and that I might be getting Mr. Makori and his client in serious trouble if I told the truth.”
28The interpreter confirmed that Mr. McNish called him on November 20, 2020 to ask him about the cross-examination and whether he would be willing to swear an affidavit about his recollection of events from that day. Mr. Singh called Mr. Makori and told him that he had been contacted by Mr. McNish, that he knew what had happened at the examination was wrong and that he was concerned that Mr. Makori would be in serious trouble if he told the truth. Mr. Singh told Mr. Makori he would tell Mr. McNish that Yogita only came into the boardroom after the examination was over. However, he qualified this by saying that if he was asked to provide evidence, he would have to tell the truth because of his duty to the Court. He suggested that Mr. Makori contact Mr. McNish to resolve the matter rather than letting it get out of hand.
29Mr. Singh contacted Mr. McNish by phone on November 23, 2020 and told him that Yogita had come into the boardroom as her husband was answering the last question on the examination. Mr. McNish asked if Mr. Singh would be willing to swear an affidavit to this effect. Mr. Singh agreed, and Mr. McNish sent a draft affidavit by email on November 23, 2020. The interpreter made changes to the affidavit and sent it back to Mr. McNish. In that draft affidavit, he had originally explained that the Respondent’s son and wife did not come into the boardroom until the examination was concluded. However, in his affidavit of December 10, 2020 he deposed that, after thinking about it, he decided to tell the truth, rewrote his affidavit entirely, and sent the new version back to Mr. McNish on November 29, 2020.
30The interpreter’s affidavit is clear that he was never threatened by Mr. McNish. In fact, his evidence was that Mr. McNish accepted any changes proposed by the interpreter. The interpreter attached, as Exhibit “A” to his affidavit, all his email communications with Mr. McNish following the examination.
ANALYSIS AND THE LAW
Was There Misconduct During the Examination?
a) Allegations of Alleged Threats by Mr. McNish
31The Respondent deposed that he was told by Mr. Makori that Mr. Singh told him that Mr. McNish threatened Mr. Singh with his “career” if he did not swear the affidavit as drafted by Mr. McNish. Mr. Nyamiaka’s affidavit goes so far as to say that “Mr. Singh sounded terrified and scared to Mr. Makori as Mr. Singh did not know what to do as Mr. McNish had made it abundantly clear to him that he was preparing the affidavit which he had to swear.” The Respondent deposed at paragraph 11 of his affidavit that,
I was advised by my lawyer, Joshua Makori, that the Punjabi-English interpreter, Rajinder Singh called him and informed him that the Applicant lawyer, Mr. McNish had called Mr. Singh and threatened him and his career as an interpreter demanding that he swears an affidavit which Mr. McNish was going to prepare.
32Apart from the fact that this is double hearsay, the evidence of any threats made by Mr. McNish is not borne out for two reasons:
a. Mr. Makori has never sworn an affidavit in this proceeding. He had become a witness yet continued to represent the Respondent up to December 16, 2020 when LawPro counsel finally became involved. He elected not to swear an affidavit after that date.
b. Mr. Singh attached copies of all the emails between him and Mr. McNish with respect to the drafting and execution of his two affidavits. In addition, Mr. Singh clearly denies being threatened by Mr. McNish in both of his affidavits, and there is nothing in any of the emails that would come close to being characterized as a threat. As a result of this serious allegation against Mr. McNish, the Court reviewed every email exchanged between Mr. McNish and Mr. Singh as produced in Exhibit A to Mr. Singh’s affidavit sworn December 10, 2020. Not only are the emails professional and appropriate, Mr. McNish goes out of his way to ensure that the content of the affidavits accurately reflect Mr. Singh’s recollection of events. This includes accepting and incorporating into the various drafts, all the changes requested by Mr. Singh.
33There is therefore no basis to accept that Mr. McNish threatened Mr. Singh. I find that Mr. Singh swore his two affidavits without being compelled to do so in any way and entirely reject that he was “terrified” of Mr. McNish.
b) The Evidence of the Respondent
34I have carefully reviewed the Respondent’s affidavit sworn December 9, 2020 and the transcript of his cross-examination from December 29, 2020. The Respondent’s affidavit is deficient. He simply denies that his wife or son were present at the examination. Much of the affidavit focuses on irrelevant issues, such as disputes related to the Franchise Agreement and the Respondent’s health. Three paragraphs in the affidavit are devoted to the double hearsay evidence, described above, relating to the alleged threats by Mr. McNish.
35The Respondent provides no details in relation to his denial. Although they have had significant time to do so, neither Yogita nor Rubal provided an affidavit to corroborate the Respondent’s denial.
36The Respondent’s cross-examination was difficult to read. It is unclear whether it was as a result of a language barrier or evasiveness, but this is a typical example of the type of exchange between Mr. McNish and the Respondent:
Q21. You are opposing the application correct?
A. Which application are you mentioning to?
Q22. There is an application by my client for an order to sell your shares in the franchise company to my client. Do you understand that?
A. Which client is that?
And later…
Q.40 You understood that your evidence is important to this case, correct?
A. I am not sure about that. I don’t know what to say.
Q.41. You wanted to tell your side of the story, right?
A. I am not intending to mention my part of the story at this point.
Q. 42 Do you remember Mr. Kaushal swearing an affidavit in support of his position in this legal proceeding?
A. And what kind of story was that?
37After a series of these somewhat agonizing exchanges, the Respondent finally conceded that his affidavit was important for his side of the case and that on November 12, 2020, he did not want to give any answers that would hurt his case. He also confirmed that he had never met Mr. Singh before November 12, 2020 and that there was no dispute between him and Mr. Singh.
38Further, the Respondent did not resile from his position that Mr. Singh had been threatened by Mr. McNish, yet deposed that he had not reviewed any of the emails between Mr. Singh and Mr. McNish and that he was “not interested in reading those”(Q165).
39In summary, I do not give the Respondent’s evidence any significant weight. While there is always a risk of miscommunication when evidence is being interpreted, the Respondent’s overall tone was evasive, even when asked basic questions. What is clear is that he understood that his affidavit evidence was important, and he wanted to give answers that would not “hurt his case.”
The Evidence Mr. Nyamiaka
40Mr. Nyamiaka is Mr. Makori’s legal assistant. He has worked full time for Mr. Makori since June 2020. Prior to that he worked part time for Makori beginning in January 2020. He has known Mr. Makori for five years. He confirmed that the day of the examination was the first time he had ever met the interpreter Mr. Singh.
41Mr. Nyamiaka’s affidavit evidence must be approached with extreme caution as he also relies on the double hearsay from Mr. Makori, without any corroborating evidence from Mr. Makori.
42His evidence on cross-examination was of little assistance. He maintained his position that Mr. Makori told him that Mr. McNish threatened Mr. Singh even in the face of being referred to Mr. Singh’s two affidavits denying any threats, and the email exchanges between Mr. McNish and Mr. Singh.
43Mr. Nyamiaka was far from cooperative during his cross-examination as it took 18 questions from Mr. McNish before Mr. Nyamiaka conceded that there was a glass barrier (“not a window”) between the boardroom and another room in Mr. Makori’s office.
44While Mr. Nyamiaka insisted that Yogita and Rubal were seated in the reception area of Mr. Makori’s office the entire time, he also admitted that he was not in the boardroom at any time during the examination. His evidence was that he was working in various areas of the office throughout the period of the examination and that there were periods of time in which he was not able to confirm that Yogita and Rubal were in the reception area.
45I do not give any weight to Mr. Nyamiaka’s evidence. First, he is an employee of Mr. Makori and has some interest in ensuring his evidence aligns with that of Mr. Makori (the hearsay evidence) and the Respondent. As well, he cannot be characterized as either a cooperative witness or one who was in a position to be able to observe the movements or whereabouts of Yogita and Rubal at all relevant times.
The Evidence of Rajinder Singh
46The Respondent’s counsel was critical of Mr. Singh’s evidence and urged the Court to find that Mr. Singh engaged in a pattern of lying which makes his evidence neither credible nor reliable. I will deal with each of Mr. Goldblatt’s submissions on this point in turn.
47First, with respect to Mr. Singh’s pattern of concocted stories, counsel points to several parts of Mr. Singh’s cross-examination on December 29, 2020. Mr. Singh is asked the following:
Q 82. On November 20th, when you told Mr. Makori that you would say that Yogita was outside the boardroom and came in at the end of the cross-examination, you were misleading Mr. Makori about what your recollection was, weren’t you?
A. Yes.
Q 112. But in amy [sic] event, at 12:41 p.m. on November 26th, you tell Mr. McNish that you do not have a memory of when Yogita came in, correct?
A. That is correct.
Q. 113. All right. And what I understand is that that is a lie, isn’t it?
A. That is correct.
Q. 141. And so on November 27th at 11:27 a.m., you confirmed to Mr. McNish that your recollection was that Yogita arrived towards the end of the cross-examination, correct?
A. Correct.
Q. 142. And now you are saying that that is a lie?
A. That is correct.
Q. 143. So even though you asked for a specific revision, and, in fact, two revisions to the draft affidavit on November 26th and November 27th, you were just making it up?
A. Correct.
48Counsel for the Respondent submits that Mr. Singh’s answers make it clear that he went to both counsel and made up stories about what happened at the examination. His evidence cannot be relied upon by the Court given his propensity to lie.
49As well, counsel for the Respondent submitted that Mr. Singh expanded upon his evidence at his cross-examination, thereby leaving out key issues in his affidavits. Specifically, Mr. Singh referenced Rubal taking out his cell phone, checking some data and then showing the phone to the Respondent (Q. 171). He also referred to verbal communication to the witness in a “very low-key, very, very, subdued voice, so that the microphone doesn’t catch it.” (Q. 171).
50Respondent’s counsel further submitted that Mr. Singh was unable to say that any of the facial or hand gestures, which he alleged were made during the cross-examination, changed any of the Respondent’s answers (Q.166) and that while Mr. Singh knew that having Yogita and Rubal in the room was wrong, he did not say anything about it at the time or make any objections on the record (Q.157).
ANALYSIS AND ARGUMENT
51It is the onus of the Applicant to show that it was more likely than not that the Respondent was assisted in his evidence by the hand and facial gestures of his wife and son. I am persuaded based on my review of all the evidence in this case, and after receiving the submissions of counsel, that there was misconduct during the Respondent’s cross-examination. I find that his wife and son were present but off screen and made hand and facial gestures to assist him.
52I find that the evidence of the Respondent and Mr. Nyamiaka must be heavily discounted, in large part because of their reliance on the uncorroborated and hearsay evidence of Mr. Makori. Further, their evidence can be treated as no more than bald denials because no affidavits were received from either Yogita, Rubal or Mr. Makori. I note that, as a result of the many adjournments in this matter, there was an entire month between the original return date of this motion and the actual hearing date. That is, there was sufficient time for supporting affidavits to be filed. I therefore draw an adverse inference with respect to the failure of Yogita, Rubal and Mr. Makori to have sworn affidavits.
53As for Mr. Singh’s evidence, I accept it in its entirety for the following reasons:
a. Mr. Singh was not evasive in his testimony on cross-examination. He readily admitted that the initial versions of his affidavit were not accurate. The important fact here, however, is that he never swore any of those false versions of the affidavit. Mr. Singh’s actions leading up to the swearing of his first affidavit may be characterized as a form of crisis of conscience, perhaps not unusual for a person caught in the middle of a difficult situation. At first, he wanted to help both sides by curating his evidence by noting that Yogita and Rubal were only present near the end of the examination. He was naturally concerned about the implications of becoming a witness on his career as an interpreter. He “was hoping everything just goes away, and it did not.” However, after taking some time to think about it, he compared his role as akin to an officer of the court, completely revised his affidavit and ultimately decided that he must tell the truth.
b. Mr. Singh confirmed what happened on November 12, 2020 in two separate affidavits. Once he made the decision to tell the truth, he never wavered from his position, despite concerns about getting Mr. Makori and the Respondent “in serious trouble.”
c. The emails attached to his affidavit of December 10, 2020 make it clear that he was not threatened or coerced into swearing either of his affidavits.
d. Mr. Singh had not met any of the parties or counsel before November 12, 2020. He has no interest in this case nor any conflict with those involved. His evidence must be accepted as far more independent than that of the Respondent or Mr. Nyamiaka, who both had other interests to protect.
e. The fact that Mr. Singh “added” to his evidence, by bringing up the issue of Rubal’s use of a cell phone and Yogita’s whispered answers, does not detract from my finding. Mr. Singh’s evidence, without these additions, is sufficient to meet the Applicant’s onus. Given that I accept Mr. Singh’s evidence in its entirety, these additions only make the entire situation much more concerning for the Court.
f. That Mr. Singh was unable to confirm that any of the hand or facial gestures he saw changed the Respondent’s answers, or which answers were subject to those gestures, is of little consequence. The mere fact that they occurred during the course of a three-hour examination leads to no other conclusion than all of the evidence being tainted.
54The risk of mischief on a virtual examination is an area which has yet to be fully explored, although the possibility has been adverted to. Myers, J. in Arconti et al. v. Smith et al, 2020 ONSC 2782, did not disallow the use of a virtual examination just because of the risk of mischief, but was certainly aware of the possibility when he said, at para. 25:
I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.
55It is clear that the use of virtual examinations will continue by this Court and will become the norm for the foreseeable future. Even when the pandemic is behind us, the comfort level we have all gained with this form of technology is such that it is likely to continue to be a strong option for parties, particularly where a witness is out of country, out of province or has mobility or health issues.
56Given the inevitable future of virtual examinations in the legal system, it is up to the judiciary, as its gatekeepers, to ensure that this tool is not abused nor seen to undermine our globally admired legal system.
What is the Remedy for the Misconduct?
57Rule 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides for sanctions where there has been misconduct during an examination. Those sanctions include striking out all or a portion of a person’s evidence, including any affidavit made by that person. Rule 38.12 permits the Court to strike a document on the ground that the document is an abuse of the process of the Court.
58As well, it is within this Court’s inherent jurisdiction to control its own process by way of sanctioning any abusive proceedings.
59The striking of a person’s affidavit in an Application is a strong remedy reserved for only the most egregious situations. In Polish Alliance of Canada v. Polish Assn. of Toronto Ltd., 2011 ONSC 1851, 337 D.L.R. (4th) 139 (Div. Crt.), at para. 42, the Court held that it should be reluctant to exclude relevant evidence as it has the potential to interfere with the fundamental purpose of the law of evidence, which is to ensure all logically relevant facts are placed before the Court.
60The integrity of the fact-finding process must be maintained. This includes the fact-finding process on virtual cross-examinations. This mischief could only have happened on a virtual examination. In a face-to-face examination, examining counsel has control over who is and is not present at the examination.
61The Respondent’s counsel urges the Court to fashion a remedy which would not deprive his client of participating in this case. In J. Kenneth McEwan, Sopinka on the Trial of an Action, 4th ed. (Toronto: LexisNexis Canada, 2020) at 5.203;
There is no rule of evidence which would render inadmissible the evidence of a witness with whom an improper communication was made while the witness was under cross-examination. The fact of such a communication might, however, be a consideration in the weight to be given to the testimony.
62The Respondent submits that, as per the Polish Alliance case, striking out evidence is a draconian measure to be used sparingly. The Respondent suggests the following alternatives by way of remedy:
a. A further cross-examination;
b. A supervised in-court cross-examination; or
c. Consideration of the weight to be given to the Respondent’s evidence in the main Application.
63The Applicant submits that the remedy in this case is not one related to the weight to be given to any piece of evidence but should be determined based on the doctrine of abuse of process. Striking out a party’s evidence is a sanction which may be imposed by the Court to control its own process and prevent abuse.
64The Superior Court of Justice retains inherent jurisdiction “to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.” See Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 SCR 227, at para 40 citing Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.).
65I find that the Respondent’s misconduct in this matter amounts to an abuse of process of this Court and the affidavit in his Responding Record must be struck. The Court must send a strong message that interference in the fact-finding process by abusing or taking advantage of a virtual examination will not be tolerated. In a broader sense, this type of misconduct strikes at the very heart of the integrity of the fact-finding process such that general deterrence is also a factor.
66My specific reasons for making the finding of abuse of process are as follows:
a. Mr. McNish’s integrity was impugned by the Respondent, Mr. Nyamiaka and by inference Mr. Makori, even in the face of evidence that no such threats occurred. When asked about that evidence (the emails in Exhibit A to Mr. Singh’s December 10, 2020 affidavit) the Respondent and Mr. Nyamiaka either did not care to, or had not taken the time to, read them and maintained their serious allegations, notwithstanding clear evidence that contradicted the hearsay evidence they had been given by Mr. Makori.
b. Mr. Makori’s involvement in this matter cannot be ignored. He confirmed on the record at the beginning of the examination, and again at the end of the examination, that only he, the Respondent and the interpreter were in the room. The Court has found that to be false. Counsel cannot become complicit in abuses which take place in the course of virtual examinations.
c. Mr. Singh’s evidence must be taken as the cornerstone of this difficult matter. It is reliable evidence because he is the only entirely independent witness in this case and his struggles to deal with what he knew was a very challenging issue were real and understandable. His evidence that he wrestled overnight with the fact that he would be swearing a false affidavit the following day and then changing it entirely to the truth ring true for this Court.
d. There is no doubt that striking the Respondent’s evidence in this case will be akin to striking his pleadings, given the procedure in an Application. However, the Court must send the clearest of messages to litigants and counsel involved in virtual examinations. A level of trust exists since examining counsel is not in the room and the party being examined is often alone. When examining counsel asks if there is anyone else in the room, they must be able to have confidence that the answer they are given is correct.
e. While it is not possible to determine which answers given by the Respondent on November 12, 2020 were changed or influenced by the assistance from his wife and son, nor whether those answers would have any substantive influence on the outcome of this case, I do not find that matters. The witness’ entire testimony is tainted.
f. The remedies suggested by the Respondent are inadequate. Another cross-examination or a court supervised cross-examination will not change anything. In any event, and as I have already found, the Respondent is an evasive witness. A further examination on the same issues cannot resurrect his already tainted evidence.
g. I have reviewed the cases cited by the Respondent, which relate to situations in which a witness tailored their evidence at trial or communicated with counsel during cross-examination; this case is different. This case involves another level of misconduct which can only be described as a deliberate abuse of the Court’s process in circumstances where a pandemic has forced changes on that process. Litigants and the public must be reassured that the process remains fair, even if it is different or new.
67While this remedy could be perceived as overly harsh, it does not entirely preclude the Respondent from participating in a defence of his case. He would still be permitted, for example, to file evidence from third parties (other than Yogita and Rubal) or experts’ reports.
Should Mr. Makori be Disqualified from this Case for Misconduct?
68LawPro counsel argued this motion given the conflict in which Mr. Makori had become embroiled. However, it became clear at the end of the hearing of this motion that Mr. Makori had every intention of continuing to represent the Respondent in the hearing of the main Application in this matter. The result is that the Court finds itself in a difficult situation with respect to Mr. Makori.
69As alluded to earlier in this Endorsement, Mr. Makori has already placed himself in a precarious situation by being the source of information for the allegations related to Mr. McNish threatening the interpreter. I did not find those allegations to be true.
70I have found that the Respondent was untruthful in his affidavit when he deposed that his wife and son were not present during his cross-examination. This also means that Mr. Makori must have been untruthful when he stated on the record that the Respondent’s wife and son were not present.
71The Applicant’s motion to strike the evidence of the Respondent did not seek any sanctions against Mr. Makori. Had the relief sought on the motion included a request to have Mr. Makori removed as counsel for the Respondent, I would have given it very serious consideration. In any event, I believe that it would be inappropriate for Mr. Makori to continue as counsel in this matter, but make no order in that regard.
ORDERS AND COSTS
72Given all of the above, I make the following Orders:
a. The Applicant’s motion is granted. The affidavit of the Respondent sworn October 26, 2020 and any other evidence from the Respondent by way of response to the Application is hereby struck.
b. The parties shall provide written submissions on costs starting with the Applicant on a 7-day turnaround, commencing 7 days from the date of release of these reasons. If no costs submissions are received within 35 days of the date of release of these reasons, costs will be deemed to be settled.
c. A Case Conference is to be arranged following the release of this decision to discuss scheduling of the hearing of the Application.
C. Gilmore, J.
Date: January 20, 2021