COURT FILE NO.: CV-18-590158

MOTION HEARD: 20201119 and 20201123

REASONS RELEASED: 20210131

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

GEORGIA SKOURTIS

Plaintiff

• and-

THE CITY OF TORONTO, MOEZ BADRUDIN WALJI, YASMIN WALJI, TUANYUAN WU and MAPLE-CRETE INC.

Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: M. Gerhard

E-mail: michael.gerhard@stlawyers.ca

-for the Plaintiff

A. Lawson

E-mail: adamlawson@shibleyrighton.com

-for The City of Toronto

REASONS RELEASED: January 31, 2021

Reasons For Endorsement

I. Introduction

[1] The Plaintiff seeks the following relief arising from the examination for discovery of Vincent Stuart on behalf of the Defendant The City of Toronto (the “City”): an order to compel Mr. Stuart to re-attend on examination for discovery; answers to undertakings and refusals; and directions for the conduct of the re-attendance. Plaintiff’s counsel adjourned Mr. Stuart’s examination to seek directions due to alleged improper conduct by the City’s counsel.

[2] Underlying this motion is the City’s refusal to agree to produce Mr. Stuart for a 30- minute re-attendance and the Plaintiff’s refusal to complete the examination in writing. Significant case management was provided over 2 telephone case conferences and 2 attendances on the motion with a view to having the examination completed so that the undertakings and refusals could be deferred to one motion after all discoveries were completed. These efforts were unsuccessful.

II. Background

[3] The Plaintiff alleges that she suffered injuries from a slip and fall on Patrick Boulevard in Toronto on January 11, 2017. Her Statement of Claim was issued on January 17, 2018.

[4] Mr. Stuart was a Field Investigator for the City who has retired since his examination for discovery on February 13, 2019. Gaynor Roger attended as the City’s counsel and Mr. Gerhard attended for the Plaintiff.

[5] The Plaintiff alleges that Ms. Roger’s excessive objections, interruptions and arguments interrupted the flow of the examination, compromised the quality of the record and that she provided gratuitous information, cues to Mr. Stuart and her own evidence. The City submits that Ms. Roger was not uncooperative or obstructive and that because Mr. Gerhard’s questions were repetitive and unclear she was properly clarifying questions, asking that they be re-phrased, noting instances where Mr. Stuart had previously answered questions and summarizing Mr. Stuart’s evidence. The City asserts that there was not an excess of improper interruptions or objections and notes that Mr. Gerhard did not insist on Mr. Stuart’s evidence or object to Ms. Roger clarifying answers during the examination.

[6] Counsel had two unsuccessful off the record discussions in an attempt to resolve the dispute. Mr. Gerhard ultimately adjourned the examination to obtain directions from the court. Ms. Roger advised Mr. Gerhard that the City would not agree to produce Mr. Stuart again without a court order.

[7] Telephone case conferences were held on October 30, 2020 and November 6, 2020. Efforts to resolve the motion were unsuccessful largely due to the parties’ disagreement over whether Mr. Stuart should re-attend for 30 minutes as insisted by the Plaintiff or answer follow-up questions in writing as offered by the City. The motion proceeded on November 19 and 23, 2020 which, in large part, involved significant case management and discussions between counsel in an attempt to resolve the refusals and re-attendance. While, subject to numerous clarifications, many of the undertakings and refusals were resolved, the re-attendance was not.

III. The Law and Analysis

[8] The Plaintiff moves under Rule 34.14 with respect to the conduct of the examination:

“34.14 (1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limiting its scope, where,

(a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections;”

[9] Before Rule 34.14 is engaged, there must be something more than a legitimate disagreement between counsel as to the propriety of particular questions (Kay v. Posluns, 1989 CanLII 4297 (ON SC), [1989] O.J. No. 1914 (H.C.) at para. 25). Rule 34.14 requires a type of misconduct such as to render the examination futile without the intervention of the court (Kay at para. 25).

[10] The following Rules are also relevant to this motion:

31.03 (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8).

31.08 Questions on an oral examination for discovery shall be answered by the person being examined but, where there is no objection, the question may be answered by his or her lawyer and the answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the examination, the person repudiates, contradicts or qualifies the answer.

[11] Master Dash summarized the principles for the conduct of examinations for discovery in Mandonis v. Dezotti, 2010 ONSC 2180:

16 A set of principles for the conduct of an examination for discovery has developed in our jurisprudence. As applicable to the matter before me some of the important principles include the following:

1.An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions. The role of the lawyer for the party being examined is to listen to the question asked, decide if the question is improper or incomprehensible and if so to make an objection. They must not interfere in the examination any more than is necessary to perform that function. Otherwise such interjections by counsel may interrupt the proper flow of the examination. Further, such interruptions may affect the quality of the examination record making it difficult or impossible for the examining party to have it read into evidence at trial as part of his or her own case as permitted under rule 31.11(1) or to use the transcript for purposes of impeachment as permitted under rule 31.11(2).

2.The lawyer for the party being examined may therefore interrupt the proceeding for the purpose of objecting to an improper question, placing the objection on the record and directing the party either to not answer or, as permitted by rule 34.12(2), to answer under objection. Rule 34.12(1) requires that the objecting party "briefly state the reasons for the objection". This does not give licence to the lawyer for the party being examined to engage in an argument with the examining lawyer about the question asked or to provide gratuitous information not requested. The reasons for the objection should be stated on the record briefly and simply - for example that the question is not relevant or that it is protected by a particular privilege or that the question has already been answered.

3.The lawyer for the party being examined may also interrupt the examiner if necessary to ensure that the witness and counsel understand the question. The lawyer should simply advise the examiner that the question is unclear or ambiguous and should not suggest what the question should be or how the question may be rephrased. The lawyer must be scrupulously careful not to engage in a dialogue that would provide a cue to the party being examined on how to answer the question.

4.It is the party who is being examined and not his or her lawyer. The examining party is entitled to the evidence of the witness and not that of counsel. Rule 31.08 requires that questions at an oral examination for discovery "shall be answered by the person being examined but, where there is no objection, the question may be answered by his or her lawyer." If questions are put to the witness, it is expected that the witness will personally answer the questions asked. As a practical matter the lawyer may wish to assist by answering a question or correcting an answer, but once the examiner objects then neither of these are permitted even if the answer given by the party is wrong. If the examining party objects to counsel answering, the lawyer must refrain from answering even if counsel may provide a more fulsome answer than his or her client. It would of course be appropriate for the lawyer for the party being examined to answer questions directly put to him or her by the examining party.

5.Often there is a spirit of co-operation at an examination for discovery where counsel allow each other some latitude and permit the lawyer for the witness to offer assistance, however if examining counsel wishes to insist on strict compliance with the rules he or she "should be clear about it". A party should not dredge up on a rule 34.14 motion interjections at an examination prior to the time that objection was made.

6.It is the duty of the party and not counsel to correct an answer given, even if the answer given by the party is wrong. If the lawyer for the party being examined wishes to correct an answer they have two options - counsel may (a) choose to re-examine their own client under rule 34.11(1) to correct, clarify, explain or complete an answer but only after the completion of the examination by the examining lawyer or (b) provide the clarification, correction or completion of the answer in writing after the conclusion of the examination as permitted by rule 31.09(1)(a). Sometimes it may be more desirable to correct or clarify the answer at the time it is given, but if the examining party objects then the correction must be made in accordance with these rules.

7.Counsel must not communicate with his or her client during the examination except on the record, and even then, this communication should be made sparingly so as not to interfere with the flow of the examination. Counsel must not lead his or her own witness after the witness has given a damaging or incorrect answer since this serves to cue the witness to offer an explanation for his damaging answer. Counsel must not suggest directly or indirectly to the client how a question should be answered.”

[12] With respect to the refusals, Rule 31.06 provides that:

(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action….

[13] Relevance, the scope of discovery and proportionality were summarized by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Discovery questions must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and “fishing expeditions” are not permitted (Rothmans at paras. 129 and 154-157).

[14] Rule 1.04(1) figures prominently on this motion. 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. Rule 1.04(1.1) works in concert with Rule 1.04(1). It requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. In my view, the dispute here over a 30-minute re-attendance and approximately 5 undertakings/refusals is the kind which calls for the pragmatism and perspective these Rules were intended to impose on all proceedings.

[15] Having considered all of the relevant factors and circumstances I cannot conclude that the City’s counsel engaged in misconduct or acted improperly such that the Plaintiff’s examination has been rendered futile without court intervention. In reaching this conclusion, while there were some improper objections and interruptions, I am not satisfied that they can be characterized as excessive.

[16] No useful purpose would be served by recounting the exchanges between counsel. Suffice to say that more cooperation, flexibility and latitude on the part of both counsel would have gone a long way to resolving the disputed issues without the need for the court’s intervention. Had Plaintiff’s counsel posed his questions with greater clarity and simply put all of his questions on the record and the City’s counsel had interjected less often and simply put all of the City’s positions on the record, the parties and the court would have been spared significant time and expense. It appears to me that once Plaintiff’s counsel asserted his intention to seek directions of the court and complete his examination in person and the City’s counsel vowed not to reproduce Mr. Stuart without a court order, counsel had passed the point of no return. While I understand that a resolution may not have been possible at discovery, the parties have had ample opportunities to avail themselves of more efficient and proportionate solutions during their 4 attendances before me.

[17] In any event, more important than who said what, when and how, the exchanges between counsel and the issues on the Rule 34.14 motion are inextricably linked to the undertakings and refusals. In my view, the real issues are the parties’ respective positions on the underlying questions which gave rise to the disputes between counsel in the first place. Some of these have now been resolved by the parties themselves or as a result of case management during the motion and some still require determination and directions. While it would have been more efficient and cost-effective to deal with all refusals at once, disposing of the refusals currently before me carries the added benefit of resolving the re-attendance motion.

[18] I agree with Master MacLeod’s comments (as he then was) in Senechal v. Muskoka, 2005 CanLII 11575 (ON SC), [2005] O.J. No. 1406 that the practical question here is whether Mr. Stuart’s examination was ever completed in the first place:

“5 The question of examining "more than once" is in practice a question of whether the examination was actually completed. Improper refusals are an interruption of the discovery while undertakings are an acknowledgment that the question is a proper one and a promise to obtain and provide the answer. Generally speaking, had the discovery not been interrupted by the refusal or the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer that genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question has been answered.”

[19] The City submits that Plaintiff’s counsel unilaterally adjourned Mr. Stuart’s examination without proper grounds and that he had a full opportunity to complete the examination at the time but chose not to. The City therefore argues that the Plaintiff is seeking a second examination, the law on additional examinations should apply and the request should be denied. The City also submits that there should be no re-attendance because the City’s refusals were proper and Mr. Stuart has retired.

[20] Taking into consideration all of the relevant factors and circumstances, I am satisfied that Mr. Stuart should re-attend virtually for 30 minutes. The Plaintiff is not seeking a second attendance or the production of a second deponent but rather the opportunity to complete Mr. Stuart’s first examination. While I have declined to make a finding of misconduct on the part of the City’s counsel, my conclusions on the undertakings and refusals below support a re-attendance. Not all of the City’s refusals were proper and where it did answer, the City did not in all cases provide complete information or clarifications. Had the City answered or clarified the questions as they did subsequent to the attendance on discovery or as I have now ordered, related and follow up questions could have been asked during Mr. Stuart’s first attendance. Given the short, 30-minute attendance requested, I am of the view that it is more efficient, cost-effective and proportionate for Mr. Stuart to re-attend virtually to answer these questions rather than ordering them to be completed in writing. This is not materially different from the more typical situation where counsel completes an examination subject to questions arising from answers to undertakings and refusals and the deponent re-attends to answer those questions or provide other clarifications usually on consent of the parties.

[21] I reject the City’s submission that there should be no subsequent attendance because Mr. Stuart has retired. It is not uncommon for representatives to act as deponents of a party even after they have left their employment for whatever reason particularly here where Mr. Stuart was still an employee of the City when he was examined. Attending virtually for 30 minutes is not unduly onerous and does not require Mr. Stuart and all counsel to re-assemble in one place. Further, the City has not advised of any issues or circumstances such as Mr. Stuart’s health or availability which would preclude him from attending. If the Plaintiff is amenable to the production of a different deponent this is a matter for counsel to discuss.

[22] My determinations and directions with respect to the undertakings and refusals and/or summaries of the agreements between the parties are set out below (all other undertakings and refusals in dispute were resolved by the second attendance).

[23] Undertaking #2 – The Plaintiff wishes to know when the last time the area in question on Patrick Boulevard was salted. The City submits that the question which the Plaintiff asked was whether based on records produced or available the City was able to determine when or if Patrick Boulevard was salted prior to the accident. At discovery, the City’s counsel advised that the City did not know the last time the area in question was salted before the accident, then on November 6, 2020 advised that the last time winter maintenance contractors attended at the area was on December 29, 2016. Regardless of the question initially asked, this question is relevant to the Plaintiff’s claims of gross negligence. It would be relevant whether asked originally or as a proper follow-up, clarifying question. It appears that the City does not know when the relevant area was last salted including whether it was salted at all during the 2016-2017 winter season. The City shall clarify within 30 days whether it can determine the last time the area was salted (or if it was not salted during the 2016-17 season) regardless of when that was and if it can, to advise of the date. If the City does not know or cannot confirm, it shall simply say so. Any further clarifications can be sought on Mr. Stuart’s re-attendance.

[24] Under Advisement #1 and Refusal #2 – The Plaintiff has requested copies of the Field Investigators’ training manual (the “Manual”) and the current Field Investigator accreditation test (the “Test”). The Plaintiff submits that these documents would provide information regarding Mr. Stuart’s winter maintenance duties, the City’s winter maintenance system and his knowledge of same. The City argues that these documents are not relevant because winter maintenance contractors were responsible for the area and that since there were no complaints about the area Mr. Stuart did not attend at the time of the accident. The City has also since advised that there are no references to winter maintenance in the Manual (it was not clear to me if there are any in the Test). I am satisfied that to the extent to which there are any references in the Manual to road or sidewalk inspection (whether specific to winter maintenance or otherwise) it is probative of the City’s standards and procedures. Any such portions should be produced within 30 days. In my view, the current Test is not relevant. It is not the Test that Mr. Stuart would have taken and would in any event reflect any relevant content of the Manual which I have ordered be produced. Any further questions or clarifications can be asked on Mr. Stuart’s re-attendance.

[25] Refusals #3 and #4 – The Plaintiff seeks the considerations the City uses in exercising or triggering its discretion to order or not to order that sidewalks be salted. Mr. Stuart answered on discovery that transportation road operations managers take information from the road maintenance patrollers, the weather conditions in the area and information they receive from patrolling supervisors. It was further clarified that the decision to salt is a discretionary one made by a group of managers. The Plaintiff also asked if rain in freezing temperatures would trigger the ordering of a salting which the City refused together with a related line of questions on the basis that they were hypothetical. The fact that a question is hypothetical does not alone make it improper which depends on, among other things, the specific nature of the question, whether the deponent has the requisite expertise and whether there is a factual foundation (The Estate of Maryam Asharzadeh v. Amin, 2019 ONSC 1024 at para. 22). In any event, it appears that the City has confirmed that there is no specific trigger and the decision on salting is a discretionary one made by road managers based on the conditions and information available at the time. The City shall clarify its answer within 30 days. Any further clarification can be sought during Mr. Stuart’s re-attendance.

III. Disposition and Costs

[26] Order to go as follows:

i.) Mr. Stuart shall re-attend virtually on his examination for discovery for 30 minutes on a date to be agreed upon by counsel;

ii.) the City shall provide the answers, clarifications and information with respect to the undertakings and refusals set out above within 30 days.

[27] Counsel may schedule a telephone case conference with me if necessary.

[28] If the parties cannot agree on the costs of this motion they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) pursuant to a timetable agreed upon by counsel. If counsel cannot agree upon a timetable they may schedule a telephone case conference.

Released: January 31, 2021

Master M.P. McGraw