Court File and Parties

COURT FILE NO.: CV-20-00000003 DATE: 20220223 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Charles Poisson General Contracting Inc., Plaintiff -and- Ernest Yee and Thien Huong Nguyen, Defendants

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Robert Reynolds, for the Plaintiff Steven Baldwin, for the Defendants

HEARD: February 18, 2022

Endorsement

[1] The defendants seek an order permitting them to cross-examine the plaintiff’s counsel’s assistant, Laurel Saunders, who swore the affidavit relied on by the plaintiff in an upcoming motion to enforce a settlement.

[2] The plaintiff’s counsel, Mr. Reynolds, refuses to produce Ms. Saunders for cross-examination. Mr. Reynolds says Ms. Saunders’ affidavit does nothing more than attach correspondence exchanged by counsel. Mr. Reynolds argues that Ms. Saunders has nothing to add and that if she were to be cross-examined, there is nothing she could say that would be relevant and not protected by lawyer-client privilege.

[3] I agree with Mr. Reynolds that Ms. Saunders’ affidavit appears only to put before the court the contents and sequence of uncontentious documents. However, the defendants’ counsel, Mr. Baldwin, argues that I do not have the benefit of the full evidentiary record that will be available when the settlement enforcement motion is heard. Two lawyers who represented the defendants are to be examined as non-party witnesses. Mr. Baldwin says the lawyers may give evidence that raises questions about the accuracy or comprehensiveness of Ms. Saunders’ evidence. Mr. Baldwin says that if this doesn’t happen, his cross-examination of Ms. Saunders may be very brief.

[4] Mr. Reynolds says the prospect that the lawyer witnesses may contradict or call into question Ms. Saunders’ evidence is speculative and that, as things stand, Ms. Saunders has no further relevant evidence to offer. Mr. Reynolds suggests that the motion might be adjourned until after the lawyers have been examined and that the relevance of Ms. Saunders’ evidence could be assessed at that time.

[5] Under Rule 39.02(1) of the Rules of Civil Procedure, Mr. Baldwin has a prima facie right to cross-examine Ms. Saunders, subject to the court’s discretion to control its own process by preventing cross-examination where it is in the interests of justice to do so. (Canada (Attorney General) v. Mennes, 2014 ONCA 690, at para. 27; Ferguson v. Imax Systems Corp. (Ont. Div. Ct.) at para. 32).

[6] Having heard the motion, I am not prepared to adjourn it. A further appearance would add to the expense of the proceeding. Further, Mr. Baldwin is not required to prove that Ms. Saunders’ cross-examination evidence will be relevant, and Mr. Reynolds has not satisfied me that it will not be. Ms. Saunders’ cross-examination would not delay the settlement enforcement motion, which had been scheduled for January but was adjourned to April 29, 2022 to permit examinations of the parties and the lawyers. The examinations are scheduled for February 28, 2022 and March 4, 2022. I see no reason why Ms. Saunders’ cross-examination could not be added to one of those days.

Disposition

[7] The defendants’ motion is granted. Ms. Saunders shall be made available for cross-examination on her affidavit.

Costs

[8] Mr. Baldwin said that if the defendants were successful on the motion, an award of $1,000 would be appropriate. Mr. Reynolds said an award of no costs to either party would be preferable but that if I am inclined to award costs, he agreed that $1,000 to the successful party would be the right amount.

[9] I see no reason why the defendants, who were successful, should not be awarded costs.

[10] Within 30 days, the plaintiff shall pay the defendants costs of this motion, in the amount of $1,000, inclusive of fees, disbursements and HST.

Date: February 23, 2022 Released: February 23, 2022