COURT FILE NO.: CV-20-651258
MOTION IN WRITING HEARD: 20210623
REASONS RELEASED: 20210704
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
GREY STANDARD CONDOMINIUM CORPORATION No. 56
Applicant
- and-
LINDA ZANETTI and BRETT RUSSELL
Respondents
BEFORE: MASTER M.P. McGRAW
COUNSEL: L. Zanetti and B. Russell E-mail: lindazgscc56@gmail.com -Respondents, Self-Represented
M. Mackey E-mail: mmackey@shibleywrighton.com -for the Applicant
REASONS RELEASED: July 4, 2021
Reasons For Endorsement
I. Introduction
[1] This is a motion in writing by the Respondents to compel the Applicant to answer refusals from the cross-examination of 4 deponents (the “Deponents”) on their affidavits filed in support of this Application and to compel the Deponents to re-attend on cross-examination.
II. Background
[2] The Applicant, Grey Standard Condominium Corporation No. 56 (“GSCC”) is a 34-unit residential condominium in the Town of Blue Mountains. The Respondent Linda Zanetti is a GSCC unit owner who resides at GSCC with her spouse the Respondent Brett Russell.
[3] GSCC alleges that the Respondents have engaged in an ongoing campaign of abuse, harassment and intimidation directed at GSCC management, members of the board of directors, contractors and residents. GSCC claims that the Respondents frequently send lengthy emails and letters portraying management and directors as negligent and incompetent containing veiled threats against persons and property and insults sometimes resulting in physical altercations. GSCC alleges that the Respondents’ conduct has caused property managers to quit, contractors not to quote on jobs and concerns that it may be difficult to find owners to serve on the board. The Respondents deny all allegations.
[4] In the Application, GSCC seeks an order directing the Respondents to cease their threatening, harassing and abusive conduct towards property management, employees, former employees, directors, contractors, residents and others affiliated with GSCC. GSCC served 7 affidavits in support of its Application. All 7 affiants were cross-examined on April 14-15, 2021.
[5] This motion proceeds pursuant to the Endorsement of Papageorgiou J. dated February 5, 2021. The Application is returnable on July 26, 2021. Counsel subsequently advised that a case conference has now been scheduled for July 7, 2021.
III. The Law and Analysis
Generally
[6] Rule 39.02 (1) provides that a party to a motion who has served every affidavit on which the party intends to rely and has completed all examinations of witnesses under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion.
[7] Perell J. summarized the law with respect to cross-examinations on affidavits filed on applications and motions in Ontario v. Rothmans Inc., 2011 ONSC 2504. He recently considered the relevant principles including what constitutes a proper refusal in Del Giudice v. Thompson, 2021 ONSC 2015:
“22 The scope of a cross-examination of a deponent for a motion is narrower than an examination for discovery and a cross-examination is not a substitute for oral or documentary for discovery or an opportunity for a premature discovery. The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the motion. Questions that are overbroad or speculative, that do not relate to the issues on the particular motion, colloquially known as a "fishing expedition" are not permitted.
23 On a cross-examination, the questions must be relevant to: (a) the issues on the particular motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the motion; or (c) the credibility and reliability of the deponent's evidence.
24 The justifications for refusals to answer questions are:
a. The question is fishing and goes beyond the scope of the motion.
b. The question is argumentative, not fair or capable of being answered, which is to say that the question is vague, unclear, inconsistent, unintelligible, redundant, superfluous, repetitious, overreaching, fishing, speculative, unfair, oppressive, or a matter of rhetoric or argument.
c. The question is not material, which is to say that the question falls outside the parameters of the action and does not address a fact in issue.
d. The question is irrelevant, which is to say that the question does not have probative value; it does not adequately contribute to determining the truth or falsity of a material fact.
e. The question has been answered; the question or the documents relevant to the question have already been provided by the party being examined.
f. The question is disproportionate, which is to say that the question may be relevant but providing an answer offends the proportionality principle; and
g. The question is privileged; the answer to the question is subject to a privilege, including lawyer and client privilege, litigation privilege, common interest privilege, or the privilege for communications in furtherance of settlement.”
[8] Rule 1.04(1) is also an important consideration. It provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[9] Approximately 25 refusals remain in dispute. The refusals related to each Deponent are considered in turn. As set out below, the Deponents and GSCC have answered a large number of the refusals by advising and/or confirming that they have no further documentation, correspondence and/or information and in the case of the Deponents, that they do not recall. In some cases, the documentation or information has been produced.
Cross-Examination of Amanda Martin
[10] Amanda Martin is GSCC’s former Property Manager. She claims that she resigned due to the Respondents’ harassment. There are approximately 8 refusals at issue from Ms. Martin’s cross-examination.
[11] Refusal 1 – Ms. Martin states that in the last year she has started the process of legally changing her name from Martin, her maiden name, to Gretton, her married name. The Respondents seek further information about her name change process including what stage it is at. The Respondents have not provided any basis for why the status of her name change is relevant or material. In my view, the only probative value of Ms. Martin’s name change is for identification purposes particularly on correspondence and documents. Ms. Martin answered numerous questions posed by the Respondents regarding the use of her maiden and married names on emails and her condominium manager’s license. Any further inquiries are not relevant and Ms. Martin is not required to answer this question.
[12] Refusal 2 - Ms. Martin states in her affidavit that she is a licensed condominium manager. She confirmed on cross-examination that she has a transitional general license, a full condominium manager’s license, which expires on June 30, 2021. The Respondents asked if she will change from a general, transitional license to another kind of license “at some point”. The Respondents have not established why Ms. Martin’s future plans for her license are material or probative of any matters at issue on the Application. She has provided responsive testimony regarding her license and is not required to answer this question.
[13] Refusals 3, 4, 5 and 6 – These questions largely relate to the Respondents’ requests for copies of emails referred to in Ms. Martin’s affidavit. Ms. Martin stated numerous times on the record that she completed a search of her emails, produced all relevant emails with her affidavit and has no further emails to produce. Some of the dates sought by the Respondents are in the emails which she has produced. With respect to the Respondents’ questions as to when and how many times Mr. Russell demanded meetings with the directors in the mechanical room and which emails and the dates when Ms. Martin says Ms. Zanetti became more aggressive, Ms. Martin has advised and confirmed that she does not know and has no further documentation or information to produce. These are complete responses on the part of Ms. Martin and no further efforts or inquiries are required. For clarity, GSCC shall confirm/advise in writing if it has any further correspondence, documentation and/or information not already produced which is producible and responsive to these questions.
[14] Refusals 7-8 – The Respondents asked Ms. Martin where and when she heard about the matters at issue in this litigation. GSCC’s counsel advised that Ms. Martin heard about the matters at issue when counsel contacted her to provide an affidavit. This is a complete answer to the question asked. Any further inquiries regarding Ms. Martin’s discussions with counsel are subject to litigation privilege and in any event, the Respondents have made no legal submissions to compel disclosure or production.
Cross-Examination of Karen Morris
[15] Ms. Morris is the current President of GSCC’s board of directors. She was cross-examined twice. Approximately 12 refusals remain at issue from her cross-examination.
[16] Refusal 1 – The Respondents asked Ms. Morris to undertake to provide a list of owners who believed that Ms. Zanetti would be a good addition to the board. Ms. Morris advised that she has no list and cannot recall which owners thought so but offered to produce minutes from the Annual General Meeting (“AGM”) where Ms. Zanetti was nominated and elected to the board. GSCC has no further information or documentation. In my view, this is a sufficient answer. Though I am satisfied that the Respondents’ request is relevant to the issue of Ms. Zanetti’s reputation, their request that Ms. Morris make inquiries of GSCC residents is disproportionate in the circumstances given the efforts required and particularly where the Respondents are capable of making the same inquiries.
[17] Refusals 2, 3, 4 and 5 - These refusals relate to the Respondents’ requests that Ms. Morris advise what invoices and quotations Ms. Zanetti questioned, the questions that she asked about every quotation and what specific invoices Ms. Zanetti refused to pay when she was a director and Treasurer and to produce copies. Ms. Morris has advised that although she remembers discussions at board meetings, she does not recall the particulars and does not have a list or any further documentation. For clarity, GSCC shall confirm/advise in writing if it has any further correspondence, documentation and/or information not already produced which is responsive to these questions.
[18] Refusals 6 and 7 – Ms. Morris was asked to provide the names of contractors who decline to quote on small jobs given Ms. Zanetti’s alleged demands for 3 quotes. While Ms. Morris was unable to answer the question, GSCC advised on May 4, 2021 with its answers to undertakings that while it has no record of contractors who have advised that they will not provide their services, it produced a list of 7 contractors who do not respond to requests for quotations and have not provided a reason. The Respondents asked Ms. Morris to produce a list of jobs that Ms. Zanetti requested 3 quotes for but she advised that she cannot recall. No further inquiries are required.
[19] Refusal 8 – Ms. Morris states in her affidavit that Mr. Russell attended every open house at GSCC and criticized everything. She confirmed on cross-examination that he made his criticisms verbally. The Respondents asked Ms. Morris to produce a list of everything that Mr. Russell criticized. Ms. Morris advised that there is no such list though there is a list of pictures which Mr. Russell took setting out his criticisms. In my view, the most proportionate, efficient and reasonable resolution in the circumstances is for Ms. Morris to make best efforts and advise, through counsel in writing, to the best of her knowledge, information and belief, what criticisms Mr. Russell made verbally at the open houses. If she cannot recall any criticisms then she shall confirm that this is the case. No other steps are necessary.
[20] Refusals 9 and 11 – These questions relate to the Respondents’ requests for copies of complaints made by unit owners. With respect to Refusal 9, GSCC produced copies of complaints about the Respondents on May 4, 2021 with its answers to undertakings. With respect to Refusal 11, the Respondents requested copies of all complaints made by unit owners received by GSCC in the last year. These complaints are not about the Respondents and therefore are not relevant to any issues in the Application. No further steps are required.
[21] Refusal 10 - When questioning Ms. Morris over an incident which occurred on the street and not on GSCC property, the Respondents asked if the board and GSCC’s lawyers manage situations that occur in the public domain such as giving out speeding tickets. This is an improper question which was answered in any event.
[22] Refusal 12 – Ms. Morris confirmed that Gillian Rice and Brian Schryver of Pro Guard Property Management (“Pro Guard”) made verbal complaints pursuant to the Occupational Health and Safety Act (Ontario)(the “OHSA”). The Respondents asked Ms. Morris when the complaints were made. She and GSCC have confirmed that they do not know when the complaints were made and have no further information regarding the complaints. Further, GSCC filed affidavits from both Ms. Rice and Mr. Schryver who were cross-examined by the Respondents such that any further inquiries of Ms. Morris are disproportionate and unnecessary.
Cross-Examination of Gillian Rice
[23] Ms. Rice is GSCC’s current Property Manager. There are approximately 2 refusals remaining from her cross-examination.
[24] Refusal 1 - The Respondents asked Ms. Rice to produce a copy of the draft minutes from the 2019 AGM. This was taken under advisement and they were produced on May 4, 2021.
[25] Refusal 2 – Ms. Rice was asked if a “legal letter” has been sent to Mack McSwiggan a unit owner at another condominium who posted negative comments online about Pro Guard. Whether or not legal correspondence has been sent to the resident of another condominium with respect to his online comments is not material to or probative of any issues in this Application.
Cross-Examination of Brian Schryver
[26] Mr. Schryver is the owner of Pro Guard. There are approximately 3 refusals remaining from his cross-examination.
[27] Refusals 1 and 2 – Mr. Schryver was asked about the results of his investigation into OHSA complaints he received from staff at GSCC. He responded that the entire investigation is set out in his affidavit, has resulted in this Application and is ongoing. In my view, Mr. Schryver’s response requires clarification. Mr. Schryver shall advise in writing through counsel if he has any further correspondence, notes, information or documents regarding the OHSA complaints and his investigations which he has not already produced.
[28] Refusal 3 – The Respondents asked Mr. Schryver to identify the “negative correspondence” from the Respondents referred to in his affidavit. Mr. Schryver confirmed that all correspondence in this regard is included with his affidavit and he has no further correspondence to produce. No further inquiries are required.
III. Disposition and Costs
[29] Order to go directing GSCC and/or the Deponents, as applicable, to provide the clarifications as set out above in paragraphs 13, 17, 19 and 27. The balance of the refusals motion is dismissed. Given the impending case conference and Application, and the fact that GSCC and the Deponents should be able to provide the necessary information in writing in short order, I have not ordered any timelines.
[30] The Respondents’ motion to compel the Deponents to re-attend on cross-examination is also dismissed. The clarifications required by GSCC and the Deponents are discrete and few in number and there is no need for the Deponents to re-attend. It would be contrary to Rule 1.04(1) and disproportionate where the written responses ordered are sufficient for the Application and in light of the cross-examinations already conducted.
[31] If the parties cannot agree on the costs of this motion or the costs are not otherwise dealt with in the Application, they file written costs submissions (not to exceed 3 pages, excluding Costs Outlines) on a timetable to be agreed upon by the parties. If the parties cannot agree upon a timetable they may schedule a telephone case conference with me to speak to one.
Released: July 4, 2021
Master M.P. McGraw