Court File and Parties

COURT FILE NO.: CV-13-0024-00 DATE: 2022-04-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rudolph Steinberg, Jakob Steinberg and Amanda Steinberg minors by their Litigation Guardian, Rudolph Steinberg v. Pamela Adderley

HEARD: April 26, 2022

BEFORE: Fitzpatrick J.

COUNSEL: M. Stoiko, for the Moving party Plaintiff, Rudolph Steinberg A. Demeo, for the Responding party Defendant

ENDORSEMENT

[1] The plaintiff moves to set aside the order of Shaw J. dated November 26, 2021 (the “Order”). Despite not expressly citing the rule in its notice of motion, the plaintiff in written and oral argument relies on the provision of Rule 59.06 of the Rules of Civil Procedure as the Court’s authority to grant the relief requested. The defendant brings an oral cross motion to also vary the order of Shaw J.

[2] The Order provides as follows:

1. THIS COURT ORDERS that the Plaintiff, Rudolf Steinberg, shall attend in person at the following defence medical examinations: a) physiatry examination by Dr. Lipson on May 16, 2022 at 1:30 p.m. in Markham, Ontario: b) psychiatric examination by Dr. Waisman on May 18, 2022 at 12:00 p.m. in Markham, Ontario; and c) examination by a neuropsychologist to be retained and coordinated with the two examinations above-noted.
2. This Order is without prejudice to the Plaintiff's right to bring a motion to modify or set aside the Order because of COVID-19.
3. THIS COURT ORDERS that the Plaintiffs shall pay to the Defendant costs of this motion in the sum of $7,500.00 for fees, plus $261.44 for disbursements, plus applicable HST on these amounts.

[3] Since November 2021, availability of the defence experts expressly named in the Order has changed. The examining physiatrist and psychiatrist have changed from Dr. Lipson and Dr. Waisman to Dr. Muhlstock and Dr. Kirsh respectively. The locations of the examinations have changed from Markham to Mississauga and North York. The neuropsychological interview and psychometric testing have been determined by the defence to be most appropriately split over two days so as to be less taxing to Mr. Steinberg. Counsel for the plaintiff is not prepared to consent to the changes and amend the Order accordingly.

[4] The matter has a long history. The focus of the motion before Shaw J. was the defence request to have Mr. Steinberg attend for several defence medicals. Mr. Steinberg was prepared to attend if the appointments were held in the Thunder Bay Region. He resisted traveling outside the region for the appointments.

[5] The history of the matter was well and adequately set out in the reasons for decision of Shaw J. dated November 26, 2021, Steinberg et al v. Adderley 2021 ONSC 7811 (the “Reasons”). The present situation is coloured by the fact that the original motion leading to the Order was first brought before Shaw J. in 2019, then finished by written submissions that were made to him on the eve of his retirement in December 2021. As the result of Shaw J.’s retirement from the bench, I adopt and rely on the Reasons in making this decision. But for Shaw J.’s retirement, this motion would have been brought before him.

[6] On November 12, 2021, at the deadline for making written submissions on the original motion, the plaintiff filed new material which raised a new issue of the impact of COVID-19 on Mr. Steinberg’s ability to attend any in-person defence medicals in Toronto. This is noted at paragraph 34 and 35 of the Reasons.

[7] The Reasons are clear on what Shaw J. was prepared to do and what he was not prepared to do in dealing with the material that was before him.

[8] Paragraph 51 indicates what Shaw J. decided to do at first instance. Shaw J. stated:

[51] I therefore conclude that Mr. Steinberg should be required to attend the defence medical examinations that have been scheduled in Markham on May 16 and May 18, 2022, and on a neuropsychological examination, to be co-ordinated with the examinations by Dr. Lipson and Dr. Waisman.

[9] At paragraphs 52 through 60 of the Reasons Shaw J. then dealt with the new COVID-19 issued raised by the plaintiff. Shaw J. determined not to deal with the COVID-19 issue but instead granted the plaintiff leave to bring this motion to modify or set aside the Order because of those COVID-19 concerns.

[10] In my view, the plaintiff’s reliance on Rule 59.06 as the foundation for the Court’s jurisdiction in respect of this motion is misplaced. The jurisdiction for the Court to vary or set aside the November 26, 2021, order is contained in the very terms of the Order itself at paragraph 2. The Order did not contemplate that it had been made in error arising from an accidental slip or omission or that it required amendment on a particular upon which the Court did not adjudicate. Shaw J. was clear. He was leaving the COVID-19 to another day and to further and better evidence.

[11] The plaintiff has filed new material as well as seeming to rely on material that was already before Shaw J. to the extent it related to the COVID-19 based objections Mr. Steinberg has to being examined in Toronto.

[12] The most recent affidavit from Mr. Steinberg in the materials I had before me, filed in Caselines, was dated October 15, 2021. That affidavit was before Shaw J. in November 2021. Mr. Steinberg’s affidavit contained one paragraph in a 20-paragraph affidavit that dealt with his COVID-19 concerns. It stated:

17. In addition to the concerns noted above, I am substantially concerned about the increased risk of COVID-19 that travel to the GTA would entail. The Greater Toronto Area has a much higher incidence rate of COVID-19 than Thunder Bay. I suffer from comorbidities which would put me at a much greater risk if I were to become infected with COVID-19.

[13] For the purposes of this motion, counsel for the plaintiff declined a defence request that Mr. Steinberg be cross examined on this affidavit. In an email of April 20, 2022, counsel for Mr. Steinberg stated “Mr. Steinberg did not submit an Affidavit for the purpose of this upcoming motion. There is no need to cross examine Mr. Steinberg”.

[14] This statement is expressly contrary to the index of the plaintiff’s motion record for this motion dated January 14, 2021, which lists Mr. Steinberg’s affidavit of October 15, 2021, as an exhibit to an affidavit of Ryan Turner dated November 11, 2021.

[15] Counsel for Mr. Steinberg cannot have their cake and eat it too. Either Mr. Steinberg’s affidavit evidence was before the Court on this motion or it was not. I find that in declining to produce Mr. Steinberg to be cross examined, and by stating “Mr. Steinberg did not submit an affidavit for this upcoming motion”, there is no evidence from Mr. Steinberg before the Court on this motion despite the fact that his affidavit is an exhibit to Mr. Ryan’s affidavit of November 11, 2021. It is not appropriate for one person to exhibit another’s affidavit to their own unless there is some compelling reason to do so, like the exhibited affiant being unavailable.

[16] Accordingly, I find the only evidence I did have properly before me on this motion were three affidavits made by Mr. Turner, an associate of counsel to Mr. Steinberg. Mr. Turner’s affidavits were dated November 11, 2021, January 17, 2022, and April 8, 2022.

[17] In my view, Mr. Turner’s affidavits were of little value on this motion. To begin, it appears Mr. Turner relied on Mr. Stoiko for a good portion of his information and belief. Besides being double hearsay, this is a problem because Mr. Stoiko argued the motion before me. The “evidence” about Mr. Steinberg’s safety concerns regarding COVID-19 was controversial. The “evidence” about Mr. Steinberg’s ability or non-ability to wear a mask while in the presence of others was controversial. Mr. Stoiko relied on these assertions during his oral argument. In my view, this placed Mr. Stoiko in the uncomfortable position of being both an advocate and a witness. This is a position to be avoided as it puts in question the advocates’ personal credibility, raises concerns about the advocates’ objectivity and possibly puts the advocate in a position of conflict of interest ( see R. v. Leduc, [2003] O.J. No. 2974 ONCA at para. 133 ). Counsel for the defence raised these concerns during argument.

[18] Also, there was nothing placed before me to explain why Mr. Steinberg could not have filed a further affidavit to specify his particular COVID-19 concerns at the present time. To the extent Mr. Turner attempted to give his information and belief about the state of Mr. Steinberg’s “safety concerns” in the November 11, 2021, affidavit (paras. 5 – 7, 12, 18, 26 – 33) this evidence was of no value. It is hearsay and double hearsay. The other affidavits of Mr. Turner dated January 17, 2022, and April 8, 2022, confine themselves to general statements about the state of the pandemic and do not further address any safety concerns of Mr. Steinberg.

[19] There was no explanation why the best direct evidence of Mr. Steinberg about his present COVID-19 concerns was not placed before the Court. The person most directly affected by the relief sought in the present motion did not file any direct evidence. Mr. Steinberg’s present motion relies on hearsay, and double hearsay given by counsel. I agree with the defence submission that the evidence filed by the plaintiff on this motion should be given little to no weight.

[20] The “evidence” about the state of the pandemic given by Mr. Turner was of little value. He did not identify himself as being possessed of any particular scientific or medical expertise. As of April 25, 2022, it is a notorious fact that the pandemic “is still with us”. What that has to do with Mr. Steinberg’s ability to comply with the Order was a question Mr. Steinberg’s direct evidence could have answered. Mr. Turner’s affidavits do not answer that question. Counsel for Mr. Steinberg chose not to place any of Mr. Steinberg’s direct evidence before the court on this motion. Mr. Turner’s “evidence” under the heading “COVID update” was general, and unfocused.

[21] I appreciate Mr. Steinberg has concerns about COVID-19. In my view, all right-thinking people presently do. However, those concerns have not and cannot stop the world from turning. The question is what to do to cope with the concerns. I have no direct evidence from Mr. Steinberg about what that means for him at the present time.

[22] The COVID-19 pandemic has affected the entire world. Everybody has experienced it to one degree or another. Suffice it to say opinions about what the pandemic has done and what it means going forward are varied. Yet society continues to function. COVID-19 is still with us. Many decisions of this court since March 2020 have grappled with very serious implications of the pandemic for civil, criminal and family matters. From reading the decisions in those cases, the quality of the evidence has varied. I have dealt with a number of cases in all three areas mentioned where COVID-19 was an issue. The quality and scope of the evidence has varied greatly.

[23] The public health situation in the Province of Ontario has fluctuated greatly since March 2020. In my experience, at this point in history, many people in the Province are acting like “it is over”. I do not think it is. But when I am performing my judicial function adjudicating civil disputes fairly and according to the law, I require persuasive evidence that must be logically connected to the relief requested. For the reasons I have set out above, the “evidence” tendered by the plaintiff was insufficient to allow me to grant Mr. Steinberg the relief he requests. I also agree with the defence submission that the failure to place Mr. Steinberg’s evidence before the Court permits me to draw an adverse inference as to the degree to which he truly has COVID-19 concerns at the present time which would impact his ability to travel to Toronto for the defence medicals.

[24] The Order does not require Mr. Steinberg to get vaccinated. There is no state intrusion on Mr. Steinberg’s personal integrity contemplated by the Order. It occurs in a civil case commenced by Mr. Steinberg. It does not infringe on any of his rights under the Charter.

[25] Overall, reading the Reasons, I see a continuing theme indicating Mr. Steinberg’s resistance to traveling anywhere other than inside the Thunder Bay Region to submit to defence medicals. The “COVID-19 objections” set out in Mr. Turner’s affidavits are further to that theme. However, in my view, the evidence presented by the plaintiff was not persuasive that the Order should be amended, varied or set aside in the ways requested by Mr. Steinberg.

[26] On the other hand, the conditions regarding the doctors who are available to do the defence medicals contemplated by the Order have changed. The defence has the right to have Mr. Steinberg examined by professionals of their choosing. The plaintiff’s refusal to allow an amendment of the Order as to the particular professionals who will be engaged and the place where the assessments are to occur was not reasonable.

[27] Accordingly, I am granting the defence request to amend Order. In order to ensure the particulars are correct, I leave it to counsel for the defence to forthwith file a draft order consistent with the changes. The plaintiffs’ necessity to indicate consent to the amended order is hereby dispensed with.

[28] Otherwise, I see no reason to otherwise amend, set aside or vary the Order except as noted above.

[29] I am not prepared at this time to make any other express findings or give any other directions regarding what will happen if Mr. Steinberg does not comply with the Order as amended. This observation is not to be construed as a licence for civil contempt.

[30] Costs of this matter will be to the defendant. I have the costs outline prepared by the defendant. It appears excessive to me at first blush. An order of costs consistent with the quantum allowed by Shaw J. in the range of $6,000 to $8,000 for fees plus disbursement plus HST seems more realistic to me for this motion. In the event costs are not agreed, I will entertain written submissions of no more than two pages. The defence will serve and file its submission on costs on plaintiff’s counsel directly and in the Caselines “Motion April 25, 2022” bundle on or before May 6, 2022. The responding submissions of the plaintiff will be served and filed in the Caselines “Motion April 25, 2022” bundle on or before May 13, 2022.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick DATE: April 27, 2022