Court File and Parties

COURT FILE NO.: CV-20-653150

DATE: 20211001

ONTARIO SUPERIOR COURT OF JUSTICE

RE: WORSOFF, Plaintiff

-and-

MTCC 1168 et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: David Plotkin, for the defendant MTCC 1168 and Crossbridge Condominium Services Limited. David Marcovitch, for the plaintiff Spencer Toole for Brian Horlick and Horlick Levitt Di Lella LLP

HEARD: September 27, 2021

ENDORSEMENT

Background

[1] On consent, the action against Mr. Horlick and Horlick Levitt is discontinued.

[2] The remaining parties are heading to examinations for discovery.

[3] The plaintiff has served notices of examination asking that his examinations of the representatives of the defendants proceed in person at an official examiner’s office.

[4] The defendants have served a form of notice of objection setting out their preference that the examinations proceed by video conference.

[5] The defendants’ own notice of examination requires the plaintiff to attend for examination virtually. The plaintiff has not objected to being examined by video conference.

[6] The court is asked to determine the method of attendance at the oral examinations for discovery.

New Rule 1.08

[7] Rule 1.08 of the Rules of Civil Procedure, RRO 1990, Reg 194, was amended effective January 1, 2021 as part of the modernization package of rules changes implemented by the Civil Rules Committee in light of the pandemic.

[8] Rule 1.08 (1) deals with the method of attendance to be used for a hearing before the court. It offers choices of:

1. In person
2. By Telephone conference.
3. By video conference.

[9] Examinations for discovery are not a hearing in court. Rather, witnesses are compelled to attend for examination out of court pursuant to Rule 34 (See: Rule 34.01 (a)).

[10] Rule 1.08 (8) deals with the method of attendance at an examination under Rule 34 or a mediation. The method of attendance is different than the place of attendance although it may affect the place of attendance. But this is not always the case. For example, the examining party may attend at an Official Examiner’s office and sit with a court reporter. The witness may then attend virtually. The place of the examination is arguably still the examiner’s office. Similarly, virtual court hearings in the main occur in a courtroom where the Registrar manages the video conference process although the judge and counsel may be remote and attend by video conference.

[11] Where the method of attendance at an examination for discovery is objected to, the process under Rule 1.08 (8) applies rather than a motion objecting to the place of examination under Rule 34.02 (2).[^1]

[12] Rule 1.08 (8) provides

Attendance at Mediations, Oral Examinations

(8) In the case of a mediation under Rule 24.1, 75.1 or 75.2 or of any step to which Rule 34 applies, the mediation or step shall be held by a method of attendance referred to in subrule (1) determined in accordance with the following rules:

1. If the parties and any other person who is required to attend the mediation or step agree on the method of attendance, the mediation or step shall be held by that method.

2. If the parties and any other person who is required to attend the mediation or step fail to agree on the method of attendance,

i. in the case of a mediation to be held under Rule 24.1 or a step to which Rule 34 applies, one of the parties shall request a case conference under rule 50.13 for an order directing the method of attendance, or

ii. in the case of a mediation to be held under Rule 75.1 or 75.2, the court shall, on the motion for directions under rule 75.1.05 or 75.2.03, as the case may be, make an order directing the method of attendance.

3. In making an order directing the method of attendance, the court shall consider any applicable factors listed in subrule (6). O. Reg. 526/21, s. 1 (5).

[13] The process for determining the method of attendance for a step in a proceeding that is not a court hearing is slightly less formal than where a court hearing is involved. Rather than waiting for a formal notice document and then delivering a form of objection (as is the process under subrule 1.08 (1) for a court hearing), where an examination under Rule 34 is involved, the parties can simply agree to the method of attendance under subrule 1.08 (8)(1). If the parties do not agree, then, under subrule 1.08 (8)(2)(i), “one of the parties shall request a case conference under rule 50.13 for an order directing the method of attendance.”

[14] Counsel for the defendants requested a case conference on September 26, 2021 and the court was able to convene a case conference virtually on the next day.

[15] Decisions under Rule 1.08 should be available quickly and with little expense to avoid creating yet a further process step to bog down civil actions. The decision of which method of attendance applies to a step in a proceeding short of trial is of little consequence in most cases. It should be the subject of agreement among counsel or a quick, summary determination on little if any material.

[16] Subrule 1.08 (8)(3) directs the court to decide the method of attendance at an examination under Rule 34 by considering and balancing the factors listed in subrule 1.08 (6). As will be seen, many of those factors deal specifically with issues related to court hearings. I therefore review them mutatis mutandis (with alterations as circumstances require).

[17] Unlike in court hearings, the court itself has little institutional interest in the outcome of the issue for an out of court process step. In a determination under Rule 1.08 (1) for an in court hearing, I would expect the court’s institutional concerns and the judges’ preferences and availability to be significant factors in the decision.

[18] Rule 1.08 (6) provides:

(6) At the case conference referred to in subrule (5), the court shall make an order directing the method of attendance at the hearing or step and, in doing so, the court shall consider, as applicable,

(a) the availability of telephone conference or video conference facilities;

(b) the general principle that evidence and argument should be presented orally in open court;

(c) the importance of the evidence to the determination of the issues in the case;

(d) the effect of a telephone conference or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(e) the importance in the circumstances of the case of observing the demeanour of a witness;

(f) whether a party, witness or lawyer for a party is unable to attend by a method because of infirmity, illness or any other reason;

(g) the balance of convenience between any party wishing the telephone conference or video conference and any party or parties opposing; and

(h) any other relevant matter.

[19] I do not think it is strictly correct to speak of a burden of proof for a case conference under subrule 1.08 (8)(2)(i). Unlike an in court hearing under subrule 1.08 (1) or setting the time and place of an examination under Rule 34.02, there is no presumptive first right to set the terms followed by an objection process. Subrule 1.08 (8)(2)(i) encourages agreement for the method of attendance at examinations for discovery and mediations. If there is no agreement, the rule allows anyone to ask for a case conference to find the most fit process in the circumstances.

[20] In the vast majority of cases, the method of attendance at an examination for discovery should be a matter of agreement. A party who insists on a particular method should have a good reason for declining to cooperate when someone else puts forward an alternative preference supported by a reason. In my view, parties are hard-put to show that there is a difference that actually matters practically in most examinations for discovery.

[21] The defendants submit that we are in the fourth wave of the pandemic. While some parts of society are re-opening with appropriate precautions, the defendants prefer not to get together in an examiners’ office with the parties opposite, staff, and the crowd of other counsel, parties, and witnesses often there for other cases.

[22] In my view, a preference for remoteness while the pandemic remains with us is reasonable all else being equal.

[23] Mr. Marcovitch argues that he has gone to a Toronto Blue Jays game with thousands of fans. Society is opening and he should be able to examine for discovery in person. He adds that in his view it is the “best” method to conduct an examination well and properly.

[24] Historically court proceedings could only take place in a courtroom or a formal venue. The civil justice process has for decades included examinations for discovery held in person at the office of a “Special Examiner” or an “Official Examiner” or elsewhere by agreement. But seven years ago the Supreme Court of Canada said that the cost of civil proceedings made them inaccessible to the majority of Canadians. The court identified access to justice as the single biggest problem facing the civil justice system. Yet the existing barriers to access to civil justice have not really been addressed despite the highest court in the land calling for a “culture shift” toward modernization, decreased cost, increased efficiency, and overall enhanced proportionality in the civil justice system so many years ago. See: Hryniak v Mauldin, 2014 SCC 7.

[25] This action is brought under the Simplified Procedure. Examinations for discovery are limited to three hours per side. Credibility is not really in issue during discoveries. If the cost of participation can be decreased for parties and counsel by use of remote methods, access to justice will be improved.

[26] Arrangements so that litigants do not have to take a full day off work; drive downtown and pay $40 or more for parking; or take the bus for 90 minutes each way; are real savings that promote participation and access to justice.

[27] If a lawyer can avoid travel and waiting time because she is working at her desk until she signs-on to a virtual examination or hearing, transaction costs are decreased for clients.

[28] Avoiding paying a lawyer to come to Toronto or to go to another place is also a significant cost savings for a client through virtual proceedings. Lawyers can participate in proceedings in multiple locations on the same day virtually. The increase in efficiency in their practices is substantial.

[29] There are shortcomings of virtual proceedings as well. Some participants are not used to the technology yet or do not have technological resources that are robust enough to allow for seamless participation in virtual proceedings. There are concerns about the sanctity and decorum of the process. Are witnesses less affected by the solemnity of the process than they might be if they were in a more formal setting?

[30] Virtual presence is certainly susceptible to abuse. Witnesses can have others present off-screen to coach them for example. Kaushal v. Vasudeva et al., 2021 ONSC 440

[31] All of these issues have been canvassed elsewhere. The state of the art is evolving. Some real changes are happening with the potential to actually improve access to civil justice for the public. I do not accept that the pandemic is over so we should all just go back to the way it was. That assumes that the “good old days” were actually good.

[32] Looking at the factors in subrule 1.08 (6):

(a) Technology is not an issue for the parties in this case. Counsel are in Toronto and Ottawa. There is lots of bandwidth and available computer resources. If clients have computer issues, they can sit in a boardroom at their lawyer’s offices with a computer.

(b) Presentation of evidence and argument in open court is not an issue for examination for discovery. If counsel showed that there was a serious credibility issue in the case so that the examination would have a particular emphasis on credibility or a need to control the witness through strong cross-examination techniques, an argument for an in person examination like a trial would be stronger.

(c) The importance of the evidence is really a subset of (b). That is, this factor recognizes that even at an in person hearing with evidence, less important evidence need not necessarily be heard in person. Examinations for discovery are important generally. But without serious cross-examination on credibility issues, they are generally straightforward and routine affairs.

(d) The court is not called on to make findings at a discovery. Use of a transcript is all that is available in court after discovery in any event.

(e) The court does not observe the demeanour of witnesses for discovery. Counsel may. Mr. Marcovitch did not suggest this was an issue for him in this case.

(f) Mr. Plotkin is in Ottawa although his clients are in Toronto. He does not raise his own location as an issue. But I do. Bringing Mr. Plotkin to Toronto for a Simplified Procedure discovery without good reason to do so is just a wasted expenditure.

(g) and (h) – As to the balance of convenience and any other relevant matters, Mr. Marcovitch submitted that just because virtual procedures are “easier and more convenient” does not overcome the presumption that examination in person is the best way to examine a witness. Au contraire I say. Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view. Older judges and counsel may be behind younger counsel and the rest of society who use computers with greater regularity and sophistication than we do. But everyone in the civil litigation system in Ontario has had to learn to use the Civil Submissions Online portal and Caselines for example. Technological change affects everyone. Once upon a time, I had to learn how to use a Gestetner (Google it) and then a fax machine. I do not accept that in person is just “better”. It can be in some cases. But if counsel just prefers it because he or she is more comfortable with it, ought we to reject the printer because I liked my Gestetner (and Word Perfect for that matter)? The balance of convenience favours easier and more convenient processes with accompanying cost savings.

[33] Most examinations for discovery are routine fare. They are often properly delegated to the most junior counsel. Most trials involve very limited use of discovery transcripts. Even if some feel that conducting discovery in person is “better”, the degree of difference in a routine step is of little import in most cases.

[34] If all agree to attend in person then the examination will be in person. But I do not agree that examinations for discovery need to default to in person attendance because it is “better”. Counsel and parties should agree to the method of attendance that works for them in the circumstances. In each case the court can balance the relevant factors and assess the balance of convenience.

[35] It’s now 2021. Virtual proceedings have proven to be one of the first significant enhancements in access to justice since Hryniak was decided in 2014. I am not discussing trials (and the savings available by expert witnesses testifying remotely) or even cross-examination on an affidavit out of court under subrule 34.01 (c) for that matter. But I see no good reason to put the defendants to any increased risk of COVID-19 or to bring their lawyer to Toronto for one side’s Simplified Procedure examinations for discovery in this case.

[36] Examinations for discovery shall be held remotely on one day among any of October 27 to 29, 2021. Undertakings shall be answered by December 10, 2021. Mediation shall be held by January 21, 2021. The plaintiffs shall set the action down for trial by February 11, 2022.

F.L. Myers J.

Date: October 1, 2021

[^1]: Rule 34.02 (1) allows the examining party to pick the time and place of an examination by listing them in a notice of examination. Rule 34.02 (2) allows a person to bring a motion to object to the time or place set in a notice of examination.