COURT FILE NO.: CV-18-140

DATE: 2021 12 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

OLEG MEDVEDEV, YELENA MEDVEDEVA and VALENTINA MEDVEDEVA

SergiyTimokhov, for the Plaintiffs

Plaintiffs

• and -

YAKOV MEDVEDEV aka JACOB MEDVEDEV, and YELENA MEDVEDEVA

Mathew H. Hilbing, for the Defendants

Defendants )

HEARD: September 2 and October 8, 2021 by video-conference, at Brampton

REASONS FOR DECISION

Emery J.

1The plaintiffs live in Kazakhstan. They have brought this action against family members in Ontario to recover $900,000 they allegedly transferred to those family members in trust, and for an accounting of how those funds have been used. In the amended amended amended statement of claim, the plaintiffs have increased the damages claimed to $10 million.

2The plaintiffs claim that the funds were sent to the defendant, Yakov Medvedev, in advance of their immigration to Canada. The funds were provided for Yakov Medvedev to use for specific purposes on their behalf. One of those purposes was to purchase a 50% interest in a property at 64 Station in King City, Ontario. Another was to purchase two properties in California.

3Valentina Medvedeva is the mother of the plaintiff Oleg Medvedev and the defendant Yakov Medvedev. Valentina Medvedeva is 85 years old and does not speak English.

4The brothers, Oleg Medvedev and Yakov Medvedev, are each married to wives having the name Yelena. Yakov Medvedev was initially named as the only defendant in the action until the plaintiffs changed lawyers. On consent, the statement of claim was further amended at the time and Yakov’s wife, Yelena Medvedeva was added as a defendant in December 2018.

5The fact that both brothers are married to a spouse with the name Yelena Medvedeva is not the only element in this case to cause confusion. The parties have brought motions in checkerboard fashion with other motions. They have also agreed to timetables that provide for examinations for discovery in the action, while allowing for cross-examinations on affidavits filed with respect to outstanding motions to complicate matters further.

6On September 14, 2020, counsel for the defendants adjourned the examination for discovery that the plaintiff, Valentina Medvedeva was to attend in Kazakhstan by videoconference over the following two days. The examination was adjourned by the defendants under Rule 34.14 to bring a motion for directions. The defendants subsequently brought that motion. These are the reasons for my decision on that motion.

7For ease of reference and with no disrespect intended, I shall refer to all parties by their first name.

Litigation history for context

8A motion for directions must be considered in the context of the proceeding in which directions are sought. I invited the parties to provide a chronology of events in the life of this action. I was provided with a comprehensive history by the defendants, with a shorter version built into the plaintiffs’ factum. I have adapted the description of events from both submissions to set out the following chronology, without accepting their characterizations of the facts, for the purpose of giving that context.

2018

1. The statement of claim was issued on January 11, 2018.

2. Yakov served his notice of intent to defend and a request to inspect documents on February 13, 2018.

3. Yakov’s counsel wrote follow up letters requesting documents on March 2, March 21, April 26 and September 20, 2018.

4. The plaintiffs never responded to the request to inspect, and never provided the documents requested. The plaintiffs changed counsel, who served counsel for the defendants with an amended statement of claim on November 28, 2018.

5. The amended statement of claim contained new allegations and numerous heads of relief not included in their original statement of claim. It eliminated reference to the documents that were in the defendant's request to inspect documents. The amended statement of claim also increased the amount of damages the plaintiffs are seeking.

6. On or about December 13, 2018, Yakov served counsel for the plaintiffs with his statement of defence.

7. Soon after the plaintiffs were served with the statement of defence, their counsel requested their consent to add Yakov's wife Yelena as a defendant. That consent was given. The plaintiffs' amended amended statement of claim was issued on December 24, 2018.

2019

8. The statement of defence of the defendant Yelena was served on January 9, 2019.

9. Because all plaintiffs reside in Kazakhstan and have no assets in Ontario, the defendants served a motion for security for costs. The motion was made returnable on the earliest long motion date available, which was then December 4, 2019.

10. The plaintiffs never responded to the motion for security for costs. They did not produce an affidavit of documents or any productions. On September 12, 2019, the plaintiffs brought a motion without notice and obtained an Order granting them a Certificate of Pending Litigation (“CPL”) against title to the property in King City. The motion was brought without notice to the defendants despite the fact that they had filed statements of defence and were represented by counsel.

11. The ex parte Order obtained on September 12, 2019, was returnable for review on September 26, 2019. When counsel for the plaintiffs served a copy of the Order, he gave notice that he was planning on amending the plaintiffs’ notice of motion for September 26, 2019, to include a motion for summary judgment.

12. The plaintiffs have asked for an accounting of rental revenue and profits from the sale of the California properties. The defendants started putting together the requested accounting in hope of resolving the litigation on a practical basis.

13. On September 18, 2019, the defendants served a 6 volume book of productions. Rather than argue the review of the CPL motion on September 26, 2019, the parties agreed to an order allowing the CPL to remain on title without prejudice to the defendants' right to bring a motion to have it removed at any time.

14. Around the same time, counsel for both sides expressed an interest in amending pleadings if the matter was not going to settle. The parties decided on a timetable for the amendment of pleadings, and what amounts to a discovery plan. It was expected that both parties would have a significant volume of productions to exchange. To make way for these arrangements, the defendants withdrew the long motion that had been scheduled for December 4, 2019. These terms were set out in the consent Order made by Bloom J. at the return of the CPL motion on September 26, 2019.

15. Under the Order of Bloom J., examinations for discovery of the parties were to be completed by January 24, 2020.

16. On October 10, 2019, the plaintiffs issued and served their amended amended amended Statement of Claim.

17. On October 23, 2019, the defendants served their amended statement of defence.

18. On December 9, 2019, the plaintiffs served a draft affidavit of documents. The document consisted of pages under the heading of an Affidavit of Documents. It was not sworn by any of the plaintiffs. It did not list any document that was not already an exhibit in the ex parte motion materials.

19. On December 16, 2019. the defendants served their sworn affidavit of documents and 7 additional volumes of productions.

20. On December 23, 2019, counsel for the defendants wrote to counsel for the plaintiffs detailing the deficiencies with the plaintiffs’ productions. He suggested the discoveries that had been arranged be adjourned for two months to allow time for the plaintiffs to comply.

21. The parties could not reach an agreement to adjourn the examinations for discovery that the parties were to complete under the order of Bloom J. On January 14, 2020, counsel for defendants wrote again to plaintiffs’ counsel to point out the deficiencies in the plaintiffs’ affidavit of documents, and to request a sworn affidavit of documents that properly listed documents to comply with the Rules.

2020

22. The defendants took the position that the plaintiffs refused to comply with the Order of September 26, 2019, and their disclosure obligations under the Rules of Civil Procedure. As a result, the defendants served a motion returnable August 26, 2020, for an Order dismissing the plaintiffs' action. In the alternative, the defendants motion requested several specific orders, namely a) specifying what the plaintiffs should include in their affidavits of documents, b) a return of the CPL motion, c) an order for security for costs, and d) a variation of the timetable for discoveries set out in the Order of September 26, 2019 (the “compliance motion”).

23. The defendants finalized their materials for the compliance motion and served those materials on August 11, 2020.

24. The plaintiffs served a responding affidavit to the compliance motion and a cross motion on August 19, 2020. The plaintiffs requested an adjournment of the defendants' motion to cross examine on affidavits, but indicated their intention to proceed with their cross-motion on August 26.

25. As the defendants had no notice of the cross-motion until August 19, 2020, and as the materials had not been filed in response, an adjournment of that motion was also required.

26. The compliance motion and the plaintiffs’ cross-motion landed on the motions list that Miller J. was to hear on August 26, 2020. Miller J. made an endorsement adjourning the compliance motion to March 3, 2021 as the next available date for long motions that could accommodate a 4 hour motion. On consent, Miller J. made orders timetabling cross-examinations on the compliance motion, as well as for the examination for discovery of Valentina to proceed on September 15 and 16, 2020. In her Endorsement, Miller J. stated that Valentina’s transcript from her examination for discovery could be included in the evidence on the defendants' motion.

27. On August 26, 2020, Miller J. also dismissed the plaintiffs' cross-motion with costs payable to the defendants. The cross-motion was dismissed without prejudice to the plaintiffs’ right to reconfigure that motion if it could be heard in less than one hour.

28. On September 2, 2020, the plaintiffs finally served a sworn affidavit of documents that included the certificate of an interpreter. The defendants maintain the view that this affidavit was still non‑compliant with the Rules as the plaintiffs did not list relevant documents in the various schedules.

29. On September 13, 2020, the plaintiffs served another affidavit of documents of Valentina that made a reference to a new affidavit Valentina had sworn on September 14, 2020.

30. On September 14, 2020, the plaintiffs served a lengthy affidavit sworn by Valentina that was listed in the affidavit of documents served the previous day. Mr. Timokhov stated in a cover letter that this affidavit would be the evidence in chief at Valentina’s examination for discovery on September 15, 2020.

31. Upon receiving Valentina’s affidavit of documents, followed by the affidavit and counsel’s cover letter on September 14, 2020, Mr. Hilbing advised Mr. Timokhov that this approach to Valentina’s examination scheduled for the next two days was unacceptable. The defendants therefore adjourned Valentina’s examination to bring a motion for directions.

32. On September 16, 2020, the defendants served and filed their motion for directions relating to Valentina’s examination. The earliest return date available to have the motion heard was December 29, 2020.

33. On October 23, 2020, the plaintiffs brought a motion to determine one of the several issues on the defendants' compliance motion that Miller J. had adjourned as a long motion to March 3, 2021. This was the plaintiffs’ reconfigured motion that Miller J. had addressed in her Endorsement after dismissing their cross-motion on a without prejudice basis (the “estoppel motion”).

34. Around this time, counsel for the defendants suffered an illness and took time off from practice in November 2020. The parties agreed to adjourn the defendants’ motion for directions returnable December 29, 2020, to February 5, 2021.

2021

35. On January 22, 2021, the plaintiffs served the estoppel motion returnable on February 4, 2021. The defendants' lawyer was still unable to return to work at the time. As the plaintiffs would not grant a further adjournment, counsel for the defendants engaged another lawyer as outside counsel to speak to adjourning the motion.

36. The plaintiffs did not file their motion materials for the return of their motion for the February 4, 2021, and as a result, it was put over to the following day. On February 5, 2021, McSweeney J. granted the adjournment of the estoppel motion to June 28, 2021. She requested that the parties return to speak to the matter on March 23, 2021. If the defendants' lawyer was back at work, the motion could be timetabled. If he was not back by that date, steps might be taken to have new counsel for the defendants appointed. The defendants’ long motion returnable on March 3, 2021, was also adjourned tentatively to June 28, 2021.

37. The defendants spoke to the motions on March 23, 2021, as directed by McSweeney J. and June 28, 2021, was confirmed as the hearing date for the compliance motion. Leading up to June 28, 2021, the parties brought forward the motion materials to update the record so the scheduling issues could be spoken to. Unfortunately, the plaintiffs’ estoppel motion was struck from the long motions list because the parties had not met the requirements required for a long motion to be heard in Brampton.

38. After the plaintiffs’ motion was struck off the list, the defendants secured September 2, 2021 as the hearing date to bring forward their motion for directions.

39. A hearing date for the defendant’s compliance motion and the plaintiffs’ estoppel motion has yet to be set.

Endorsements relevant to examinations in the action

9The court made orders with respect to the conduct of examinations at various attendances in the history of this action. The Order of Bloom J. dated September 26, 2019, made on consent, provided that all parties were to serve their affidavit of documents along with all productions no later than December 9, 2019.

10The Order made by Bloom J. on September 26, 2019, included the following provision for examinations for discovery to take place by the end of January 2020:

5. THIS COURT ORDERS that examinations for discovery shall be completed by the end of January 2020 and shall take place in Ontario at Network North. Two days shall be held for the examination for discovery of the Defendant Yakov Medvedev, January 20th and 21st and two days for the discovery of the Plaintiff Oleg Medvedev, January 23rd and 24th. Oleg Medvedev shall attend in Ontario to be examined for discovery and the Defendants shall pay SergiyTimokhov in trust half of the reasonable cost of Oleg Medvedev's travel and living expenses on completion of the examination of Oleg Medvedev. Additional dates for the discovery of the other two Plaintiffs and the other Defendant may be scheduled the following week. Discovery of the other two Plaintiffs would take place by video conference with lawyers for both parties attending at Network North.

11The Order made by Bloom J. did not provide specific directions for the scheduling or conduct of Valentina’s examination for discovery. As the parties were discussing the adjournment of the CPL motion and the possible resolution of the case in September 2019, they were not as intent on holding examinations as they would become in 2020.

12Over the course of examinations for discovery of the other parties, the defendants and the plaintiffs brought the motions returnable on August 26, 2020. On that date, Miller J. made the following orders in an Endorsement that scheduled both examinations in the action, and cross-examinations on affidavits in respect to certain motions. As this Endorsement is central to deciding the issues on this motion for directions, the greater part of that Endorsement reads as follows:

1The Defendants had a long motion scheduled for today.

2On Friday August 14, 2020 counsel spoke and the Plaintiffs confirmed their request to adjourn the Defendants' motion returnable August 26, 2020 to serve responding materials and cross-examine on the supporting affidavit.

3Counsel discussed the Plaintiffs' proposal to serve a cross motion it was agreed that both motions could be heard at the same time on a date to be agreed to.

4The lawyers agreed to speak again to see if the motions could be resolved and if not, to timetable the work needed to be ready to hear both motions on a new date.

5The parties have not resolved the motions.

6August 19, 2020 the Plaintiffs served a new Notice of Motion and motion material. They attempted to file this material. but it was rejected by court staff as itwas out of time.

7Neither motion proceeded today. I discussed with counsel the two motions proceeding on the same date and the time required, which they estimated at 3-4 hours. March 3, 2021 is long motion date where four hours was available and counsel for all parties could attend. This also conformed with a timetable, proposal put forward by counsel for the Defendants.

8It is ordered that the Defendant's long motion of today is adjourned to March 3, 2021 at 10 a.m. The Plaintiffs may bring the motion they served on the Defendants August 19, 2020 the same date and time. The two motions may proceed in person or by videoconference. Counsel will be advised by the trial coordinator in advance as to where and how the motion(s) will proceed.

9It is ordered that the following timetable for the motions be followed, subject only to the consent of all the parties or a further court order:

Examination for Discovery of Valentina Medvedev to proceed September 15 and if necessary September 16 (via videoconference) Note, no party to be present in room with Valentina during examination. Only a non party computer support technician may be present. All parties may observe via videoconference in real time. Video conference is to be recorded and recording preserved along with transcript.

Answers to undertakings to be produced by October 19lh at 5 pm.

Plaintiffs and Defendants each may file supplementary/responding affidavit materials, including excerpts from the transcript of Valentina's examination for discovery.

Supplementary/responding affidavit of Defendants to be served by November 2^ndat 5 pm.

Supplementary/responding affidavit of Plaintiffs to be served by November 16^that 5pm.

Reply affidavit of Defendants to be served by November 30th at 5 pm.

Cross examination of Yakov Medvedev to take place December 10^thand if necessary December 11^th.

Cross examination of Oleg Medvedev to take place on December 17^thand if necessary December 18^th.

Answers to undertakings to be produced by January 22 at 5 pm.

Factums to be produced by February 11 at 5pm

All materials to be filed with court.by February 12 at 5 pm

10All materials are to be filed electronically at scjtrialofficebrampton@ontario.ca.

11Plaintiffs may bring a motion in advance - if it will take less than one hour and therefore can proceed on a regular motions list -for a ruling on whether the Defendants are estopped from bringing their March 3, 2021 long motion.

12Costs of today are reserved to the judge hearing the long motion(s).

13On October 13, 2020, the plaintiffs brought a motion seeking eleven orders. According to the Endorsement of McGee J., nine of those orders were “wholly unrelated to what was permitted” by the Endorsement made by Miller J. on August 26, 2020. For reasons given in an Endorsement that day, McGee J. dismissed the plaintiffs’ motion, without prejudice to the plaintiffs to serve a motion on 14 days' notice that is compliant with the Endorsement of Miller J.

Position of the defendants, moving parties

14The defendants’ motion for directions is the only motion on which submissions were made on September 2 and October 8, 2021. It is the motion that the defendants brought on September 16, 2020. In that motion, the defendants seek the implementation of the orders made by Miller J. in the Endorsement dated August 26, 2020. This Endorsement contained essential terms that made it clear in what order, and under what conditions various examinations for discovery and steps within motions should proceed.

15The terms set by Miller J. specified that Valentina would be examined for discovery first, followed by the right of the parties to file supplementary/responding affidavits on motions. This is apparent from her directions that those affidavits could include excerpts from the transcript of Valentina’s examination for discovery.

Position of the plaintiffs, responding parties

16The plaintiffs submit that the proposal made by Mr. Timokhov in his letter of September 14, 2020, and Valentina’s affidavit served under that letter were intended to preserve her evidence in the event she was unavailable to testify at trial. Her examination for discovery was specifically contemplated at the motions before Miller J. and in the orders made that day, on consent, that in effect established a discovery plan. Mr. Timokhov submits that the plaintiffs have always intended to cooperate in the discovery process.

17Mr. Timokhov further submits that counsel for the defendants refused to proceed with the examination for discovery because a 150 page affidavit, which is really a 19 page affidavit with numerous exhibits, had been served the day before. He submits that this affidavit was proposed as Valentina’s evidence in chief on the examination as an efficient way of preserving Valentina’s evidence for trial.

18Mr. Timokhov also reminded the court that any discussion about a breach of the Order made by Bloom J. where disclosure deficiencies on the part of the plaintiffs are alleged is not an issue on this motion.

19The plaintiffs take the position that it is the defendants who wrongfully adjourned Valentina’s examination for discovery arranged for September 15 and 16, 2020 pursuant to Miller J.’s Endorsement. Mr. Timokhov argues the adjournment was wrongful as counsel for the defendants refused to attend the examination on September 15 under the auspices that he would be bringing a motion for directions under Rule 34.14(1).

20The plaintiffs do not take the position that the examination for discovery was intended to be an examination under Rule 36. Mr. Timokhov acknowledges that an order is necessary for the taking of testimony from a witness before trial under Rule 36.

Analysis

21The Endorsement of Miller J. provides a roadmap for the examinations that counsel proposed at the attendance on August 26, 2020. Miller J. made those orders in her Endorsement in the context of those motions before the court that day. It was at that attendance that counsel for the plaintiffs agreed that Valentina’s examination for discovery be scheduled in the sequencing of events for upcoming motions, and in the action at large.

22The crux of the defendants’ reason for arbitrarily adjourning Valentina’s examination for discovery to seek directions is the affidavit that Valentina’s counsel served on September 14, 2020. The defendants argue that the affidavit contains evidence that was crafted by someone else, likely Oleg. They argue that the affidavit contains content that is not her evidence at all. Should this affidavit be used as a reference for Valentina to read from during her examination, let alone form part of her evidence at discovery, the plaintiffs will control the narrative if not the substance of that discovery evidence.

23These are submissions that may or may not have merit. I have no way of determining what knowledge Valentina does or does not have to assess whether there is anything questionable about the evidence contained in the affidavit. However, the motion for directions can be decided on legal grounds that do not require this court to delve into the internecine relations between the two brothers and their proxies.

Governing principles

24The form of an examination for discovery of a party to a civil action in Ontario is mandated by Rule 31.02. Rule 31.02(1) states as follows:

31.02 (1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court. R.R.O. 1990, Reg. 194, r. 31.02 (1).

25Subrule 31.02(2) then goes on to state as follows:

(2) Where more than one party is entitled to examine a person, the examination for discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise. R.R.O. 1990, Reg. 194, r. 31.02 (2).

26Rule 31.02(1) makes two things clear. The first is that an examination for discovery may take the form of an oral examination, or at the option of the examining party, in the form of written questions and answers. It is the examining party who controls the form of the examination for discovery, which in turn determines the method for conducting that examination. Second, there is a prohibition on the examining party to subject a person to both forms of examination except with leave of the court. This suggests that the two forms of examination are mutually exclusive.

27The ability to confront an adverse party over a discovery table more closely simulates the extraction of evidence at trial than an exchange of written information would provide. The examination for discovery process allows a defendant to question a plaintiff face to face about the allegations of wrongdoing alleged in the plaintiff’s pleadings, and about the damages the plaintiff is seeking. It serves to reduce any effort to avoid answering questions and provides the forum for obtaining admissions or concessions on the record as to facts or positions taken in the case. It allows the examining party the opportunity to require the party under examination to give or undertake to provide evidence that party relies upon to prove material facts alleged in the claim or defence, or that an adverse party might use to disprove allegations pleaded. It is an examination out of court most often conducted, within permissible limits, as the examining party sees fit.

28In Botiuk v. Campbell, 2011 ONSC 1632 the defendant had brought a motion for the court to order that her examination for discovery be conducted by answering written questions. The defendant brought her motion based on her age, at the time 78 years old, and the state of both her physical and mental health. In dismissing the motion, Master Haberman distilled the specific reasons why oral discoveries are preferable to written discovery by explaining that:

44The onus is a high one because it is recognized that oral discoveries are preferable to written examinations, in most cases. When a party is examined orally, he has little time to consider the reason for the question, to analyze how his response will impact on his position in the litigation or to provide a response that, though not necessarily dishonest, is somehow less than forthright. The oral process is a more spontaneous one, the pace of which makes it difficult for anyone other than a skilled manipulator of the facts to provide a dishonest account that is consistent throughout. Oral questions allows the examiner to put each seemingly innocuous question to the party being examined, without tipping his hand until the final question in a particular area. This surprise element is an important part of getting to the truth of the matter.

Ruling

29The circumstances arising from the service of Valentina’s affidavit on the eve of her examination for discovery does not fit squarely into the provisions of Rule 34.14. The grounds for adjourning an examination under Rule 34.14(1) contemplate circumstances where the person under examination, or any person present or represented at the examination, is entitled to seek directions with a view to the continuation of the examination, or an order terminating or limiting the scope of the examination. In the event the court finds that a person’s conduct necessitated the motion, or if it is found that a party improperly adjourned the examination to bring a motion, the responsible person may be liable to pay costs personally under subrule 34.14(2). In either respect, there must be an examination taking place that is properly or improperly adjourned for Rule 34.14 to apply.

30The examination for discovery of Valentina Medvedeva was never convened or commenced on September 15, 2020. As there was no examination for discovery in progress to adjourn, Rule 34.14(1) does not apply. Therefore, if the court is to determine if Valentina’s examination was adjourned properly or not and to seek directions, the authority of the court to give directions must be found elsewhere in the Rules of Civil Procedure, or by exercising the court’s inherent jurisdiction to control its own process.

31The service of Valentina’s affidavit on September 14, 2020, if a supplementary affidavit relative to the outstanding motions Miller J. referred to in paragraph 8 of her Endorsement, was premature as it was served prior to Valentina’s examination. As the affidavit was served with a cover letter dated September 14, 2020 for the purpose of Valentina’s examination for discovery, it had no use or application at that examination.

32Neither subrules 31.02(1) or (2) provide the party to be examined with the right to dictate or to seek the form that her or his examination for discovery may take. In this action, the defendants have not consented to any form of discovery other than as an oral examination. There is also no agreement to the hybrid form of discovery that counsel for Valentina proposes. If permitted, the evidence derived directly or indirectly from her affidavit could prejudice the defendants by determining what evidence is available from the examination for their use of the transcript as an adverse party under Rule 31.11. This includes providing an evidentiary backdrop from which the plaintiffs could ask the court to hear parts of Valentina’s discovery under Rule 31.11(3) to qualify or explain answers given at her examination. This raises the possibility of diluting the benefit of those answers.

33Under these circumstances, Mr. Hilbing had good reason to adjourn Valentina’s examination for discovery the day before it was to commence. As the plaintiffs have placed the propriety of this adjournment in issue, I am making an Order that Valentina’s examination was properly adjourned for the defendants to seek directions. To give those directions, I have the authority to impose terms and give such directions as are just under Rule 1.05 as well as the inherent jurisdiction of this court.

34The submission made by Mr. Timokhov that filing the affidavit or permitting Valentina to refer to it during her examination for discovery is contrary to Rule 31.02. The orders made by Miller J. did not alter the applicability of the general rule. Miller J. expressly ordered that Valentina be examined for discovery first, and that she could then serve a subsequent affidavit that could refer to parts of the transcript.

35Mr. Timokhov’s submission that filing the affidavit as part of Valentina’s examination for discovery or allowing her to read from it to preserve her evidence also has no merit. If Valentina were unavailable to attend trial to give evidence, Rule 31.11 provides the plaintiffs with the mechanism in that event to seek leave from the trial judge to allow the plaintiffs to read all or part of her discovery evidence under subrule (6), having regard to the considerations listed under subrule (7) and any other relevant factor. The ability of the plaintiffs to seek leave under Rule 31.11(6) does not alter the structure of Valentina’s examination for discovery at this time, or change the principles that govern the conduct of that examination for discovery.

36For Valentina’s examination for discovery to proceed in the manner proposed by Mr. Timokhov, the plaintiffs must first obtain leave of the court or the consent of the defendants under Rule 36.01. Under that procedure, Valentina would not be examined for discovery; instead, her testimony would be taken on an audio-visual record for playback at trial as though she had given testimony there. It is a procedure that transports the trial process for that witness forward to a time and place where she can be examined in chief, cross-examined by opposing counsel and possibly re-examined by her own counsel as though she were giving that testimony at trial.

37As noted above, Mr. Timokhov has expressly acknowledged that he does not seek an order under Rule 36.

38While an order is not requested under Rule 36, there is merit to having Valentina’s examination for discovery recorded as a video recording. That recording would ensure compliance with the Orders I am making, provide quality assurance for accuracy of any translation by the interpreter and the transcription of evidence by the reporting service, and for the evidentiary record in the event a motion is brought at trial under Rule 31.11. I am therefore making an Order under Rule 34.19 that the examination for which I am giving directions is recorded as a video, and that copies be made in CD or USB format and distributed to each of the parties.

Orders

39For the above reasons, the defendants’ motion is granted, and the following directions are given:

1. The examination for discovery of the plaintiff Valentina Medvedeva shall proceed as an oral examination that follows the standard format for an examination for discovery under Rule 31.02. Valentina shall be examined first by counsel for the defendants, followed by any re-examination by her own lawyer.

2. At the examination for discovery, Valentina shall answer all proper questions under oath or affirmation to the best of her knowledge, information or belief. She shall answer those questions without the use of any written notes, answers or reference to any affidavit served after the Endorsement made by Miller J. on August 26, 2020.

3. The affidavit of Valentina Medvedeva that was sworn or affirmed on September 14, 2020, shall not be used or available for reference in the same room during Valentina’s examination.

4. Valentina’s examination for discovery shall proceed by way of video-conference, using the same court reporter and Russian interpreter that had been retained for her examination on September 15 and 16, 2020, if possible. If those service providers are not available for the examination under this Order, counsel for the defendants may arrange for an alternate court reporter and Russian interpreter.

5. The entirety of Valentina’s examination for discovery, including the oath or affirmation she takes to answer all questions truthfully, shall be recorded on video and copies of that recording provided in the same format to both counsel for the plaintiffs and the defendants within 30 days of the examination.

6. The examination for discovery of Valentina shall take place before any further step in this action and before the affidavit sworn or affirmed by Valentina on or subsequent to September 14, 2020 is accepted into evidence in support of any motion.

7. Any costs thrown away for Valentina’s examination for discovery on September 15 and 16, 2020 shall be determined with the costs of this motion.

8. The dates set out in the timetable ordered by Miller J. on August 26, 2020, for the Valentina’s examination for discovery in the action, and the cross-examinations on affidavits filed in relation to the defendants’ compliance motion and the plaintiffs’ estoppel motion, are extended as follows:

(a) The examination for discovery of Valentina Medvedeva shall be scheduled for two consecutive days, and shall be completed before January 31, 2022;

(b) Answers to Valentina’s undertakings shall be provided within 30 days of the last day of her examination for discovery;

(c) The defendants may serve and file supplementary/responding affidavits to either or both motions, which may include excerpts of the transcript of Valentina’s examination for discovery, by March 15, 2022;

(d) The plaintiffs may also serve any supplementary/responding affidavits to either motion, which may include excerpts of the transcript of Valentina’s examination for discovery, by March 31, 2022;

(e) Either party may serve a further affidavit in reply, if any, by April 15, 2022;

(f) the defendants may be cross-examined on any affidavit(s) they serve in relation to the motions by May 15, 2022;

(g) the plaintiffs may be cross-examined on any affidavit(s) they serve in relation to the motions by May 31, 2022;

(h) Answers to undertakings shall be provided within 30 days of the cross-examination at which they are given; and

(i) All factums shall be served and filed by June 30, 2022.

9. Subject to further order of the court, the compliance motion of the defendants originally returnable on August 26, 2020, and any cross-motion brought by the plaintiffs shall proceed on a date after July 1, 2022, to be fixed by the trial coordinator’s office for an estimated 4 hours.

10. All other terms of the Endorsement made by Miller J. on August 26, 2020, shall remain in full force and effect.

40If the plaintiffs intend to proceed with their contemplated motion for summary judgment, they may obtain a long motion date from the court after Valentina’s examination for discovery has been completed.

41The court encourages counsel to resolve costs of this motion between them. However, if costs remain an issue after January 3, 2022, any party claiming costs shall file written submissions by January 10, 2022 and the responding party shall have until January 17, 2022 to file responding submissions. The submissions of any party shall not exceed two pages, not including any offer to settle or bill of costs. Submissions may be filed by email to my judicial assistant at Janet.Gunness@ontario.ca.

42Except for the purpose of receiving submissions with respect to costs, I am not seized of any other step in this action.

Emery J.