COURT FILE NO.: CV 19-627069

MOTION HEARD: 2022-06-10

DATE of DECISION: 2022-06-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THARMASEGARAM RAJALINGAM, Plaintiff

• and -

SADRUDIN NANJI, Defendant

BEFORE: Associate Justice Josefo

COUNSEL: D. Cortinovis, for plaintiff, moving party, Mr. Rajalingam

E. Cogan, for defendant, responding party, Mr. Nanji

HEARD: June 10, 2022 (by videoconference)

DATE of DECISION: June 16, 2022

ENDORSEMENT

Issue to be Decided:

[1] Should the defendant, Mr. Sadrudin Nanji, age 90, be ordered to return to complete his oral examination for discovery, via Zoom-remote? Pursuant to the Notice of Motion dated May 27, 2022, the plaintiff moves for an Order seeking defendant’s return. In his correspondence, counsel for plaintiff, Mr. Cortinovis, has made clear that such re-attendance would be with necessary accommodation and would also be time limited.

[2] The defendant and his son, who I occasionally refer to in these reasons, share the same family name. Thus, to differentiate between them, not in any disrespectful way, I identify the defendant as “Nanji” or the “defendant”, while his son becomes “Mr. Nanji”.

[3] During her oral submissions, counsel for defendant, Ms. Cogan, stated that she was seeking directions under Rule 34.14, alleging improper conduct on the part of plaintiff’s counsel at the September 10, 2021 discovery. Yet no actual cross-motion under that Rule was brought. It, however, has been clear since Ms. Cogan resiled from her agreement to produce Nanji for his continued oral examination, that the position of counsel for defendant became that Nanji’s examination should continue not orally, but instead by written questions.

Background Facts Leading to this Motion:

[4] Arising out of a November 27, 2017 MVA, plaintiff sued defendant. The claim was issued on September 10, 2019. The Statement of Defence and jury notice were delivered on March 4, 2020. Liability is contested.

[5] The case proceeded in the usual way, leading eventually to examinations for discovery of the defendant commencing on September 10, 2021 via Zoom (remote). Nanji’s examination began at 10:17AM. It ended abruptly at 12:23PM. There was also a break from about 11:17AM to 12:01PM.

[6] Why did the examination end abruptly? The reporter unilaterally terminated the examination when he and Mr. Cortinovis disagreed on a process to review some of the earlier testimony of Nanji, given some purported contradiction in that testimony.

[7] Mr. Cortinovis spoke to the reporting firm, seeking a replacement reporter. Yet, in her email sent at 12:35PM on September 10, 2021, Ms. Cogan wrote to Mr. Cortinovis that, considering the age of her client and his discomfort from sitting for over an hour, “I have recommended that we resume his discoveries on a later date and you have agreed…My office will be in touch with yours to confirm the new dates for the discoveries of my client and the plaintiff”. At 12:59PM that day, Mr. Cortinovis confirmed this plan. He also suggested that, “if you want to establish a system for regular breaks for your client, that may be helpful to get through his discovery without any ill [im]pact to his health. [typos in original corrected].”

[8] Accordingly, counsel had then clearly discussed, agreed, and confirmed that the oral examination for discovery of Nanji would resume another day.

[9] Subsequently, however, the position of the defendant changed. Ms. Sanchez, Ms. Cogan’s secretary, sent an email to Nanji on November 19, 2021 describing his upcoming continuing examination scheduled for November 29, 2021 via Zoom. In response on November 19th, Mr. Nanji wrote Ms. Sanchez stating that his father “is in no position to appear anymore…he cannot emotionally attend. The issue is between two insurance companies to resolve…”.

[10] Mr. Nanji was originally not enthusiastic about his father attending discoveries. In his September 7, 2021 email to Ms. Sanchez, before the initial discovery on September 10th, Mr. Nanji wrote that his father “does not have a good memory. Is there any way he can provide affidavit of some sort?” In her email to Ms. Cogan of September 7th, Ms. Sanchez remarked that “the insured’s son has sort of confirmed his father’s attendance for the upcoming ED via Zoom” [italics mine].

[11] On November 29, 2021, Ms. Cogan proposed to Mr. Cortinovis that the examination of Nanji “be completed by way of written questions and answers”. On November 30, 2021, Mr. Cortinovis replied in part as follows:

It is most unfortunate that your client collapsed discoveries we rebooked for November 29th and 30th. I most likely have about 30 minutes or so left to complete my discovery of your client, but it is clearly at an important part of the discovery as we have to cover accident specifically the actions of your client prior to the impact, the impact itself, and what followed thereafter. I propose that we resume a Zoom discovery of Mr. Nanji, and we can then proceed to discovering my client thereafter. I hope this reassures your elderly client that we will finish his examination in a short period of time. Your client clearly stated on the record that his health was fine at the time of the accident. He also appeared to be able to listen and answer questions I asked him on September 10. Your client is still under oath, and I ask that you maintain that you do no discuss the case with him until his discovery is completed. I confirm that to date I have not been given any reason why he cannot be examined for 30-35 minutes more. Due to the questions I need to ask related to key points for this accident, it's necessary to ask him directly via Zoom. As I advised, I plan to be very efficient, and I have ensured we do not use the same Court Reporter that impacted discoveries last day. My review of the examination transcript was uneventful relative to your client so apart from time sitting down to answer questions, I cannot understand what impacted him last day so much so that he does not want to submit to completing his examinations. I recognize he is 89 years old, and I plan to move along to complete him within my estimated time.

[12] Defendant has, however, maintained that Nanji not attend for the completion of his oral discovery. In support of its position:

1. Defendant asserts that Nanji is medically unable to attend.

2. Defendant asserts that plaintiff’s counsel was rude to (yelling at) Nanji during the examination of Nanji on September 10, 2021.

3. A lawyer in Intact’s office, Ms. Reesa Barrs, in her June 3, 2022 affidavit, part of the Responding Motion Record, amongst other allegations, offered her opinion about Nanji’s capabilities.

4. Defendant provided an unsworn, second-hand statement from Mr. Nanji, purportedly taken down and transcribed by another employee of Intact, yet with no affidavit from that other employee, leaving aside not tendering an affidavit of Mr. Nanji. This statement, however, is tendered to justify Nanji not returning.

[13] I review each of these arguments made to excuse defendant’s re-attendance at his continued oral examination for discovery, which was the process previously agreed upon between counsel.

Discussion and Conclusions:

1. Is there a medical basis to excuse Nanji?

[14] Defendant tendered two medical notes from family physician Dr. Aleem Hussain. The first, dated December 7, 2021, reads as follows:

To Whom It May Concern, the above-named patient was assessed on Dec 07, 2021. Due to his advanced age and medical history, I would request that he be excused from participation in attending any further legal proceedings. If you require any further information, you may contact me at the number above.

[15] The second note, dated May 5, 2022, reads as follows:

To Whom It May Concern; The above-named patient was assessed on May 04, 2022. Due to his advanced age and medical history, I would request that he be excused from participation in attending any further legal proceedings. He has a significant established history of cardiovascular disease and has reported finding the legal proceedings both physically and emotionally taxing. I do have concerns that further stress beyond what he is able to manage may be of detriment to him.

[16] At no place in Ms. Barrs’ affidavit is there any reference to discussions which she had with Dr. Hussain. Ms. Cogan confirmed in her submissions that there were none. While it is thus reasonable to acknowledge proof of receipt of these medical notes, the contents of them are hearsay. Moreover, Ms. Cogan also confirmed that there is no Form 53, “Acknowledgment of Expert’s Duty”, completed by Dr. Hussain to be found in the record.

[17] As applicable to this issue, I adopt what RSJ MacLeod wrote, in a family law decision with strong parallels to this within matter, titled E.B.H. v. E.H., 2017 ONSC 5233:

[21] Before proceeding with findings of fact, it necessary to say something about the nature of a court proceeding and the rules of evidence. Without going into the question at length, I wish to make it clear that the evidence before me is insufficient for the court to conclude as a fact that S.H. suffers from a mental condition rendering her incapable of working or otherwise contributing to her own education.

[22] What I have been given in support of the contention that S.H. cannot work is an affidavit from S.H. herself which makes this assertion and attaches a photocopy of a letter from Dr. Archibald, her physician stating that he advised her not to work in the summer of 2017. Secondly, there is a reply affidavit from the Applicant making the same assertion with respect to the summer of 2016 and 2017 and attaching a somewhat more detailed letter from Dr. Archibald. In that letter Dr. Archibald states that S.H. suffers from depression and anxiety. He indicates that he advised her she should not work during the summer of 2016. The letter also states that S.H. suffered a traumatic incident during first year at university and records other facts about her academic progress. He states that she requires “time and space to heal and recover and see her specialists during this difficult time”. He lays much blame for S.H.’s condition on the conflict between her parents.

[23] There are a number of requirements for the admission of expert evidence but at a minimum an expert report must comply with Rule 20.1 [of The Family Law Rules, similar to Rule 53.03]. The court must also be able to assess what opinion the expert is qualified to give. This is not the situation here. Attaching a letter from a doctor to the affidavit of a party does not allow the court to treat the letter as an expert opinion. In other words, such evidence cannot be used to prove that the diagnosis is accurate nor to give weight to the opinions contained in the doctor’s letter. Still less can it be used to prove the underlying facts which are hearsay or double hearsay when set out in a letter attached to an affidavit.

[24] I will not make more of this than I need to for purposes of this motion. The point is important, however. I cannot accept bald assertions and a copy of a letter from a physician as proving the nature and severity of a medical condition. Taken at its highest, the evidence supports a finding that the Applicant and S.H. herself believe she should not be working because of depression and anxiety and that this belief is not without foundation insofar as the doctor has been prepared to write a note. It is a fact that based upon this belief S.H. did not work in 2016 and is not working in 2017 [emphasis added].

[18] Accordingly, in this matter, also, all I have is hearsay pertaining to mainly what Nanji reported to Dr. Hussain as particularly described in the May 5, 2022 note (wherein Nanji purportedly reported to the doctor that he found the legal proceedings to be taxing). Not only is there no direct, affidavit evidence before me from Nanji as to why he cannot re-attend, there is no independent, objective medical explanation from the doctor as to why, specifically, Nanji would be unable to participate in a time-limited further discovery, from the comfort of his home, via Zoom, with opportunities to take breaks as he finds necessary. There is also no evidence on the record that the proposed flexible, time-limited, and remote discovery process was explained to Dr. Hussain, so that he could provide an informed opinion on its suitability for the defendant.

[19] In this “zoom era”, one positive change is that examinations for discovery need no longer be at an examiner’s office, rigidly taking parties away from their home or office, with the resultant travel to and from that location. Rather, these examinations can now be conducted in a very flexible fashion, from home or office, sitting comfortably, with the opportunity to take breaks as required. In this case, counsel for the plaintiff also has recognized that appropriate accommodation should be made to recognize the advanced age of the defendant.

[20] While Nanji is said to have cardiac issues, without any specifics of this condition provided, it is not medically explained how such could preclude or prevent him from sitting in a chair in his home and answering questions. Similarly, there is nothing which addresses any cognitive difficulties. Moreover, there is no evidence before me, so no way for me to consider if Dr. Hussain is qualified to provide an opinion, or what weight should otherwise be accorded to his two short notes.

[21] On their own, taking these notes as these are, I find these subjective and impressionistic notes neither weighty nor compelling. Similar to the E.B.H. decision above, in this case Nanji told his doctor that he found the legal proceedings to be taxing, which opinion of his patient the doctor reiterated in his second note. The advanced age of the defendant and a generic cardiac condition are all that are offered to excuse Nanji’s participation. There is, however, no actual medical evidence provided of incapacity, incapability; and nor is there any evidence that Nanji being examined could trigger permanent physical or psychological damage. That latter point refers to the legal onus necessary to be established to avoid oral discovery, which I discuss subsequently in these reasons.

[22] I am accordingly unable to rely on such subjective medical “reporting”, such as it is, to excuse Nanji from attending, on a time-limited basis, further discovery.

2. Alleged Rudeness/Yelling of Plaintiff’s Counsel:

[23] At paragraph 18 of the June 3, 2022 affidavit of Ms. Barrs, the Intact in-house lawyer identified above, the following is sworn:

18. On December 6, 2021, Sharon Sanchez, sent email correspondence to Defence counsel [meaning, to Ms. Cogan, not to Ms. Barrs]. In the email she stated that, via telephone, Nazmin Nanji advised that counsel for the Plaintiff was yelling at his father during his examination for discoveries and that the Defendant's family could hear him in the next room. The family was upset and would not be producing the Defendant for discoveries again. Attached hereto and marked as Exhibit "J" is an email from Sharon Sanchez to Defence counsel dated December 6, 2021.

[24] Exhibit J to the affidavit, the December 6th email of Ms. Sanchez to Ms. Cogan, reads as follows:

Hi Elisa, I have spoken with our insured's son, Nizman Nanji, who said that we should receive the medical certificate by the end of this month. He also started to vent about how about his father was treated by PC before I could mention that his father would have to attend again if we do not receive the medical certificate asap. I was not expecting that, but he said that PC apparently was yelling at him and that they (family) could hear him in the next room. They were all very upset and he was adamant that he will not be producing his father again for the EDs. He was too upset so I thought it was best not to say anything more at this time.

[25] Given the reluctance of Mr. Nanji to see his father continue his examination (let alone be examined in the first place) in what I assume is a well-meaning attempt to try to protect his elderly parent, I am not surprised that this email was sent. Yet what to me is quite surprising is that lawyers for the defendant would repeat this at least double hearsay allegation, belatedly made several months after the fact of the September 10th discovery, in an affidavit filed in court.

[26] Having reviewed the entirety of the discovery transcript, I saw no evidence of counsel for plaintiff being rude toward Nanji or doing anything other than his job. Was he perfect? No. I shall address that further ahead, given the contretemps with the reporter. Yet there is nothing in the transcript showing counsel being rude or disrespectful to the witness, nor anything which corroborates that there was actual “yelling”, as such was:

(a) alleged by the son (it is not clear from the affidavit and email if Mr. Nanji himself heard this alleged “yelling” or if only other members of the family did, and told him) and told by him to the secretary,

(b) repeated by the secretary to Ms. Cogan,

(c) passed along by Ms. Cogan to Ms. Barrs,

(d) finally, testified to by Ms. Barrs in her affidavit, and relied on by defendant given this allegation is in its Responding Record.

[27] Not to belabour the obvious, but this is a repeated hearsay. That defence counsel saw fit to, in this way, raise this allegation of rudeness of counsel for plaintiff, again, I find is surprising.

[28] Moreover, Ms. Cogan was counsel at the discovery. Yet I did not read in the transcript any contemporaneous complaint made by her that Mr. Cortinovis was yelling at or was being rude to Nanji, and that he should cease such behaviour. Ms. Cogan was prepared to have the oral discoveries resume at a later date. It stands to reason that, if there had been problems with the way her client was treated on September 10th, Ms. Cogan would:

• have noticed this given her (remote) presence and participation,

• likely have raised and addressed any such issue, given that she made objections at various times during the examination of Nanji, and,

• not have immediately agreed to resume the normal discovery process without some assurances in place regarding conduct.

[29] Yet instead, the only accommodation Ms. Cogan asked for pertained to ensuring there were sufficient breaks when oral discoveries of Nanji resumed.

[30] When I raised this lack of contemporaneous objection on her part during oral submissions, Ms. Cogan then, for the first time, alleged that she heard Mr. Cortinovis yelling at her client. She raised, again for the first time at the argument of the motion, her request for directions pursuant to Rule 34.14. Yet this late and unsworn “testimony” offered by defence counsel during her submissions, which was procedurally improper, is I find in any event contradicted and rendered unreliable by the fact that:

• Ms. Cogan was, on September 10, 2021, then fully prepared to resume, and did suggest that oral examinations of Nanji resume another day. Again, pursuant to her email, it was Ms. Cogan who suggested that the discovery be continued on a date to be booked,

• Ms. Cogan’s assistant, Ms. Sanchez, was preparing for that resumption of discoveries months later, on November 19, 2021, by sending Nanji information about the upcoming oral examination booked for November 29, 2021, without any cause for concern up to that point having been expressed by Ms. Cogan.

[31] I accordingly allocate no credit to these allegations of yelling and rudeness on the part of Mr. Cortinovis, raised by the family and also raised in the course of submissions by defence counsel. Leaving aside my surprise that such allegations were raised in the way they were raised, let alone at the “last minute” by counsel, this is not supported by the evidence, nor by the chronology of these events. In all these circumstances, I find it far less likely, actually quite improbable, that counsel for plaintiff misconducted himself as has been belatedly alleged.

[32] Rule 25.11 precludes statements which are scandalous, frivolous or vexatious, or those which are an abuse of process. A definition of “scandalous” is reiterated in D’Eon v. Hosseini., 2020 ONSC 7500, 2020 ONSC7500, as follows:

[13] It is well known in law that nothing which is relevant can be scandalous. It is also factually correct that the plaintiff is indeed a lawyer who, before the MVA, briefly practiced in the area in which she has subsequently found herself as a client in this within case. Yet, beyond those facts, one must ask, what is the purpose of these proposed pleadings? What is truly being advanced with these proposed pleas? Justice Dambrot in 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., 1997 CanLii 12196 (On SC) discussed and reiterated the definition of “scandalous” as follows:

The concept of scandalousness is well defined. Scandal refers to indecent or offensive matters or allegations made for the purpose of abusing or prejudicing the opposite party, allegations which are unbecoming of the court to hear, or unnecessary allegations bearing cruelly on the moral character of an individual: see Holmested and Gale, Ontario Judicature Act and Rules of Practice, vol. 2, p. 1196. Relevance only enters the picture if the impugned material is otherwise scandalous. If material is relevant, it cannot be scandalous ((Re Erinco Homes Ltd. (1977), 3 C.P.C. 227 (Ont. Master)); but irrelevant material is not, for that reason alone, scandalous [emphasis added].

[33] In my view, the allegation of misconduct (yelling, rudeness) made against Mr. Cortinovis were the means by which the family sought to obtain its ends: not having the oral discovery of Nanji resume. Yet, attacking counsel opposite in this fashion should not have been countenanced by counsel for defendant, neither by asserting these repeated hearsay allegations in an affidavit on the record as was herein done; nor by raising this issue, for the first time, at the hearing, with purported unsworn “testimony” made on the record by counsel for defendant who attended the discovery yet who, until the day the motion was argued, was silent with respect to such allegations. These allegations in my view are scandalous, as defined above. They should not have been advanced. I disregard such. These are no excuse to the resumption of the oral discovery of Nanji.

Directions under Rule 34.14:

[34] I now address the comportment of counsel at the discoveries generally. The suggestion raised by counsel for defendant in her submissions is that the examination of Nanji was properly adjourned pursuant to Rule 34.14. Even though this issue was raised at the last-minute, I address it.

[35] Again, having read the entirety of the transcript, I find that neither counsel was perfect. Each at times interrupted the other. Ms. Cogan blamed a time-lag in her home internet connection when she did this. Yet, while not perfect, in my view, neither counsel behaved in a way even close to what is meant to be captured by Rule 34.14. There was neither “an excess of improper questions”, nor “an excess of improper interruptions or objections.”

[36] It is understood that Rule 34.14 permits the adjournment of an examination “by the person being examined or by a party present or represented at the examination” to move for directions where “the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections”. Thus, Nanji, his counsel, or counsel for the plaintiff, or any other party to the lawsuit present or represented may adjourn to move for directions. In my view, a reporter is not a “party” so a reporter, pursuant to this Rule, has no right to adjourn an examination under this Rule.

[37] In this case, it was neither Nanji nor his counsel who sought to adjourn the examination. The examination in fact was not adjourned. Rather, it was unilaterally terminated solely by the actions of the reporter. Thus, defendant, long after the event, is unable to accurately assert that the discovery was actually adjourned. As neither the defendant nor his counsel sought to adjourn the examination to move for directions, this Rule does not in these circumstances apply.

[38] In any event, I do not find that counsel for plaintiff asked “an excess of improper questions” or otherwise acted improperly so that, had the Rule 34.14 process been invoked by Ms. Cogan at the relevant time, so doing would have been appropriate. For a recent discussion of the type of misconduct necessary under this Rule, see Shukla v. Fenton, 2021 ONSC 1340. In that case, the defendant’s counsel was found to have been unduly “speechifying” each time he made an objection, leading to a finding by the court that examining counsel correctly adjourned to seek directions. Discussing the principles regarding discovery, and the application of the Rule, Justice Cullin wrote in part as follows:

[11] In Madonis v. Dezotti, 2010 ONSC 2180, Master Dash summarized the principles for the conduct of an examination as follows:

a. An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions. The role of counsel 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.

b. Counsel for the party being examined may 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 to answer under objection, as permitted. This does not give licence to counsel for the party being examined to engage in an argument with the examiner 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.

c. Counsel for the party being examined may also interrupt the examiner to ensure that the witness and counsel understand the question. Counsel should 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. Counsel must be careful not to provide inappropriate assistance to the party being examined about how to answer the question.

d. Unless questions are directly put to them by the examining party, it is inappropriate for counsel for the party being examined to answer questions during the examination. The examining party is entitled to the evidence of the witness and not that of their counsel. If the examining party objects to counsel answering, counsel must refrain from answering even if they would provide a more fulsome answer than their client, or if they are in a position to correct an answer when the answer given by the party is wrong.

e. If counsel conducting the examination wishes to insist on strict compliance with the Rules, they “should be clear about it”.

f. It is the duty of the party and not their counsel to correct an incorrect answer. If counsel for the party being examined wishes to correct an answer they have two options: to re-examine their own client to correct, clarify, explain or complete an answer upon the completion of the examination; or, to provide the clarification, correction or completion of the answer in writing after the conclusion of the examination. 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 the Rules.

g. Counsel must not communicate with their 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 their own witness after the witness has given a damaging or incorrect answer since this serves to cue the witness to explain their damaging answer. Counsel must not suggest directly or indirectly to the client how a question should be answered.

[39] Discussing the specifics which led to the adjournment in Shukla, Justice Cullin concluded as follows:

[21] While Defence counsel may have been permitted to object, the way several of the objections were made was problematic. On more than one occasion, counsel editorialized while making his objections, even after being advised by Plaintiff’s counsel that his commentary was unnecessary and unwelcome. Rather than simply stating that he objected to the relevance of the questions, he repetitively advised Plaintiff’s counsel that he believed the questions exceeded the scope of the cross-examination and explained in detail why he took that position.

[22] In my view it was necessary once, and only once, for Defence counsel to provide a detailed explanation for his objection. This would have been sufficient to preserve his position on the record. Thereafter, a detailed explanation was not required; when making further objections for the same reason, it would have been sufficient to state succinctly that he was objecting because of relevance. It was clear that he was not going to alter the position of Plaintiff’s counsel regarding relevance. His repetitive commentary crossed the line between objecting and being obstructive. I find that it was appropriate for Plaintiff’s counsel to terminate the cross-examination and to seek the direction of the Court.

[40] Addressing whether the remainder of the examination should be video-taped, Justice Cullin made the following, hardly surprising, observation highlighted below:

[28] Disagreements between counsel during examinations are neither unusual nor exceptional. It would be a rare situation in which the Court requires a video to assess what occurred between counsel during an examination – invariably, the transcript gives the Court a clear picture of the dispute, and often its tone as well. While a video recording may animate the discussion, this evidence is not necessary for the Court to discharge its decision-making role. Indeed, the prospect of inundating the Court with “Lawyers Gone Wild” videos makes opening this evidentiary door undesirable [emphasis added].

[41] In the within matter before me, in essence, what occurred between counsel was a disagreement, no more than that. It could have been handled, with the benefit of hindsight, by taking a break. Yet the conduct of counsel for the plaintiff does in no way give rise to a need for formal direction pursuant to this Rule, even had counsel for defendant at that time sought to adjourn for directions.

[42] The final observation I make arising out of Shukla is the last-minute request of Ms. Cogan to adjourn the within motion so to seek an affidavit from the reporter. I denied this request. As was noted by Justice Cullin in Shukla, I, too, had benefit of the transcript—the “first person” and fully contemporaneous portrayal of what was actually said, when, and by whom. An affidavit obtained many months after, from someone who may perceive himself to have been aggrieved, and one who in this case essentially entered into disagreement with counsel, would be of no benefit to my objective assessment of the issue herein.

[43] It must be recalled that the issue on this motion is whether Nanji is able to continue with his oral examination. These other issues raised by defendant are “side-trips” to my deciding that issue. Moreover, an adjournment would further delay this case, which has been already delayed sufficiently by these various “side-trips”, all of which are removed from the issues to be determined at trial.

[44] From my review of the transcript, both counsel got somewhat frustrated at times. Near the end, they bogged down on what counsel for plaintiff thought were confusing answers given by Nanji. Part of that may have been due to the translation provided by the interpreter, who on occasion sought clarification both from Nanji and also from Mr. Cortinovis.

[45] From pages 37 and following to the conclusion of the transcript, Mr. Cortinovis sought to have some of the transcript read back. The reporter confirmed that the examination was recorded. Asking for the recording to be played back to clarify a point is not unheard of. Yet for some reason, the reporter was unwilling to assist in that way. Again, it was not counsel for defendant but rather, it was the reporter who abruptly and unilaterally terminated the discovery.

[46] With, again, the benefit of hindsight, a recess could have been sought. A ten or fifteen-minute break might well have allowed all to catch their breath and re-group. From my reading of the end of the transcript, counsel for plaintiff and the reporter were talking over each other, with Ms. Cogan also interjecting. Thus, three people at times were talking at once. A break would have been salutary. Yet, I find no basis for the reporter “taking us off the record”, as he stated he was doing, so, of his own volition, unilaterally shutting the process down.

[47] Accordingly, I am perplexed that Ms. Cogan felt it appropriate to send what is exhibit F to the Barrs affidavit to Network Court Reporting. Ms. Cogan’s September 10, 2021 email reads as follows:

Good Afternoon, I am the defence counsel that was present at the Examination for Discovery today. Plaintiff's counsel, Davide Cortinovis, spoke to the court reporter, Brian, in an aggressive, disrespectful and unprofessional manner. He interrupted the Brian on numerous occasions and did not allow Brian to do his job. I believe Brian took all of the correct steps in handling the incident and that Brian acted in a professional manner at all times. Please do not hesitate to contact me should you require further information.

[48] This email was not copied to Mr. Cortinovis. Instead, it was sent without him having an opportunity to respond to these serious accusations of misconduct, made to an entity which works with many lawyers, including, as he stated in court, Mr. Cortinovis. The first time that counsel for plaintiff confirmed that he saw this email claiming that he was “aggressive, disrespectful and unprofessional” toward the reporter was only on receipt of the Responding Record, publicly filed.

[49] This email of Ms. Cogan was sent at 2:20PM on September 10th, after Ms. Cogan and Mr. Cortinovis had earlier emailed each other confirming agreement on the future resumption of the oral examination of Nanji. In her earlier email to Mr. Cortinovis, Ms. Cogan made no such accusations to him about his alleged misconduct vis-à-vis the reporter, as she only did later that day to Network Court Reporting.

[50] Accepting that this later email was Ms. Cogan’s opinion, which for some reason she felt the need to express, again, my review of the transcript does not reveal such misconduct of which Mr. Cortinovis was surreptitiously accused. The transcript does reveal that he and the reporter, again, were talking over and likely past each other. Ms. Cogan was also interjecting into the mix. The situation was, I suspect, likely frustrating for all involved. Again, a break was an appropriate response. Or even, as Ms. Cogan suggested, breaking for the day to reconvene another day.

[51] The conduct of counsel for plaintiff in this instance, however, does not approach what is envisaged in Rule 34.14. The accusations in the email of Ms. Cogan to Network Court Reporting strike me as exaggerated, unfair given the way these were made, and not reflective of the conduct of counsel for plaintiff.

[52] Raising this issue in the Responding Record is, I find, no justification to avoid resumption of the oral examination of Nanji, if this is why such an inflammatory email was referenced in the Barrs affidavit and included in the Responding Record. Referring again to Rule 25.11 and the definition of “scandalous”, I find this aspect of the affidavit and the inclusion of this email into the court record as having no evidentiary merit to the issue of whether the oral examination of the defendant should resume. Rather, the inclusion of this is scandalous. I disregard it.

3 & 4. Improper Opinion and Hearsay Evidence/ Unsworn Statement of Mr. Nanji:

[53] Ms. Barrs, in her June 3, 2022, affidavit, states in part as follows:

22. I have been informed and do verily believe that due to his advanced age, physical health, and the events that transpired during the examinations for discovery on September 10, 2021, and the subsequent effects those events had on the Defendants health, the Defendant is unable to continue discoveries by way of oral examination. Attached hereto and marked as Exhibit "N" is a "Will Say" statement signed by Nick Nanji on June 2, 2022, and an email from Nick Nanji dated May 5, 2022, marked as Exhibit "O".

23. I verily believe that this this motion is unnecessary, and that the Plaintiff will not be prejudiced by a continued examination in written format. Our office continues to be agreeable to the continued examination for discovery by written format. Continued examination by way of oral format will likely put the Defendants health at risk as stated by the Defendant's physician and son, and our office therefore cannot agree to same.

24. I verily believe that, despite all reasonable attempts to date, we have been unable to produce the Defendant for continued discovery due to his advanced age and fragile health.

[54] Considering the above, it is appropriate at this juncture to briefly review the purpose of an affidavit. “An affidavit is offered as proof of facts that are necessary to meet a legal test necessary to obtain relief from the court”, wrote retired Justice Beaudoin in his paper entitled, “I Swear Someone Swears It’s True: Hearsay Affidavit Evidence”, presented to the County of Carleton Law Association at the 37th Annual Civil Litigation Conference in 2017.

[55] Justice Beaudoin also observed in his paper that, “affidavits are evidence, arguments should be in your factum, your opinions are best kept to yourself.” I agree.

[56] Paragraph 22 of the Barrs affidavit states that Ms. Barrs was informed, yet not by whom. This paragraph is thus unsupported hearsay without a source of the information, as Rule 39.01(4) requires. Moreover, as I flagged earlier, at no time does she swear that she spoke to the doctor who offered the medical notes. That Ms. Barrs offers her opinion at paragraph 23 that the motion is unnecessary and the plaintiff will not be prejudiced if the defendant prevails, is unhelpful to me as I consider the actual evidence properly before me. I disregard such opinion.

[57] Exhibit N, the second-hand “will-say” statement of Mr. Nanji, referenced by Ms. Barrs at paragraph 22 of her affidavit, reads as follows:

This is the Statement of Nick (Nazmin) Nanji, started at 11am, June 2, 2022, taken by Paul Smith of Intact Insurance over the phone.

My name is Nick (Nazmin) Nanji, born September 15, 1953, and this is my 'will say' statement regarding the current condition of my father, as it relates to his participation in the legal action from a car accident. I understand that for the purposes of underwriting and handling any claims Intact Insurance must obtain my consent for the collection, use and disclosure of my personal information. I consent. I am also giving permission for my insurance company to communicate with me through email at nn@castlegroup.ca. My father is Sadrudin Nanji, born September 16, 1932, and he is currently 89 years old. His address is 7 Ruddell Place, Toronto. My address is 7 Ruddell Place, Toronto. We live together, and I see my father every day. The accident happened November 27, 2017. My father has been able to participate and assist in the defense of that claim until recently. Due to my father's age and current condition, he is no longer able to attend or participate in any further proceedings. He provided a note from his doctor indicating he should no longer participate due to his age and medical history. That original note was sent in 14 December 2021. There is a current note for my father from the same doctor dated May 15 2022, that I will also send over shortly. My father is very weak, he can't hear well, he wears a hearing aid that he can't get used to. Every 2 hours he lies down due to his weakened condition. Any discussions regarding the accident cause him huge frustration and anxiety. He is currently taking a dozen or so medications, and he has continuous different pains in his body. He does not walk much these days. My father's condition has gotten worse in the previous couple years. We are currently assisting him through most of his current daily activities. He has a chair lift that he uses to get upstairs. Any time he gets questioned, or can't understand things, he becomes agitated and angry. We help him change the channel on TV. His memory is ok. These are the details that I know directly, and that I will say if I am questioned about my father's condition. I have read the above statement over and I have signed below as proof of same.

[58] I find it puzzling that defendant chose to include in its Record such an unsworn, second-hand statement of opinion ostensibly from Mr. Nanji, who was hesitant to have his father examined in the first place. This unsworn hearsay, which could be struck from the record yet which I will simply disregard, is unpersuasive that Nanji could not, from his own home, answer further questions pertaining to the MVA which occurred four and a half years earlier, when the witness was then over age 85 and still then holding a driver’s permit.

[59] That the defendant is elderly, and requires accommodation is without doubt. That he finds the litigation process to be frustrating and taxing is unsurprising. Many people, of any age, do. Yet the medical notes upon which Mr. Nanji relies in his statement I have already found insufficient, even if such were reliably admissible evidence. This above second-hand statement also does not assist, especially as Mr. Nanji acknowledges near the end of it that his father’s “memory is ok”. Yet that statement, if recorded accurately by the Intact employee (who, again, also swears no affidavit), contradicts his September 7, 2021 email to Ms. Sanchez, referenced earlier in these reasons, wherein Mr. Nanji wrote that his father “does not have a good memory…” .

Applying the Law to the Facts of this Case:

[60] Rule 31.03 describes generally who may be examined for discovery. Rule 31.04 describes how examinations are initiated. Rule 31.05 provides that one can examine once. The time-limit of seven hours is set out at Rule 31.05.1.

[61] An issue remaining to complete in the examination of Nanji, pertaining to liability, is important in this MVA case. Counsel for plaintiff has stated he needs not much time, estimating 35 or so minutes, to complete the task. He has, again, offered breaks as the defendant would need or want. Counsel for the plaintiff has been both cooperative and accommodative.

[62] In this case, the plaintiff selected the oral discovery process and defendant agreed, both initially and for the reconvene, before changing its position. The consensus which emerges from the case-law is that it is typically the party seeking to examine who selects the method—oral or written discovery. It is a very high onus to displace that selection. In that regard, see the decision of Master Haberman in Botiuk v. Danyliw, 2012 ONSC 6325, wherein the court, for the second time (the first Botiuk decision which discussed the particular medical evidence and found it wanting is found at 2011 ONSC 1632), ordered an elderly litigant to attend oral discoveries:

23. Early in 2011, the issue of whether Frances could be examined for discovery by way of written questions finally came before me formally by way of motion. After reviewing the materials filed and hearing the submissions of counsel, I decided, on March 16, 2011, that she was bound to attend in person. As I stated at that time: I am not satisfied that Frances is unable to provide her evidence by way of oral discovery or that in doing so, she would likely exacerbate any of her various conditions other than in the short term. Both of her physicians note that they had not seen her for about two years and each appears to have seen her recently in large part for the purpose of addressing the issues raised by this motion, rather than health-related concerns. Each addresses the issue more as an advocate, rather than an independent witness who clearly understands the process. I do not find either expert or the totality of their evidence to amount to the kind of persuasive medical evidence that Lax J. speaks of [emphasis added].

24. As a result, I refused to exempt Frances from having to attend at her examination and dismissed the motion. I did, however, put safeguards in place to facilitate Frances' ability to give her evidence and to minimize the discomfort to her. One of the terms built into the order was that Frances should be permitted to take frequent breaks during her examination. Presumably, those breaks resulted in the inability to complete her examination, hence the current motion.

25. By allowing time to pass and taking no action, Frances continued to age, her various ailments became more serious and her memory apparently became less reliable. These problems are the result of her own inaction - she ought to have been examined in 2007 as agreed.

26. As I noted with detailed reasons in my earlier decision, in which I dealt with this issue head-on, despite her various ills, Frances had not met the test to permit deviation from the norm. Her new evidence adds little of relevance to the picture and, in any event, ought not to have been filed. Frances is therefore still unable to meet the requisite test more fully discussed in the earlier decision.

27. Accordingly, Frances shall attend for the completion of her examination on a date or dates before the end of December 2012, to have been arranged within 7 days of the hearing of this motion. The terms I set out last day continue to apply, such that the examination can take place at Frances' home and for periods of time that she can tolerate.

[63] I flagged the above observation by Master Haberman that the physicians in that case were acting more as advocates, given that I come to that same conclusion in this within matter.

[64] Another relevant decision, one which involved a plaintiff who was feared at times to be suicidal, is Ferrara v. Roman Catholic Episcopal Corp. for the Diocese of Toronto in Canada, [1996] O.J. No. 2164. Therein, Justice Lax, after recognizing and acknowledging the plaintiff’s serious emotional difficulties, concluded as follows, reiterating the high onus to be met by the party seeking to be excused from oral discovery:

15. I accept the submissions of Mr. Jervis that the Rules are to be liberally construed (R 1.04) and that the court may dispense with compliance with any rule in the interest of justice (R. 2.03). He submitted that the test established by Master Cork in considering R. 31.02 was too high. After reciting that the rules require discoveries to be viva voce, the test was expressed by Master Cork in his endorsement as follows: [T]here is of course the obvious concern of any court, and counsel, to avoid damage to any litigant by reason of the process, and this itself I believe would give me some effective jurisdiction to comply with plaintiff's suggestion, if so advised. However, such could only be done in the clearest and most positive of cases, where the avoidance of certain injury to a litigant, offsets the rights of the litigants to due process under the Rules. ... Accordingly, I (sic) accepting the premise, under the Rules 31.02(2), that litigants cannot interchange viva voce evidence with written evidence on a discovery, I must refuse the request made of me at the outset by plaintiff's counsel.

16. I have no difficulty with the test set out by Master Cork and in my view, it is supported by the cases to which I was referred by Mr. Harris. In my view they stand for the proposition that the onus rests squarely with the party seeking waiver of oral discovery to establish by persuasive medical evidence that the plaintiff is unable to attend for discovery: McGowan v. Haslehurst (1977), 1977 CanLII 1192 (ON SC), 17 O.R. (2d) 440, 5 C.P.C. 280 (H.C.) (cranio-cerebral injury); [Barnes v. Kirk, 1968) 1968 CanLII 389 (ON CA), 2 O.R. 213 (C.A.) (mental incompetence); Emberton v. Wittick (1985), 6 C.P. C. (2d) 89 (Ont. Master) (stroke victim); and, Nylias v. Janos (1985), 50 C.P.C. 91 (Ont. Master) (psychological damage) [emphasis added].

[65] Thus, in upholding the findings of Master Cork, Justice Lax ordered that the plaintiff in that case continue with oral discovery. Applying what Master Cork concluded to this within matter, given the (lack of compelling medical or other) evidence before me, this is not at all “the clearest and most positive of cases” wherein there would likely be “certain injury” to the defendant. In fact, quite the opposite. Based on what evidence there is before me, I am not prepared to offset the rights of the plaintiff.

[66] Finally, in Lalousis v. Roberts 2013 ONSC 5897, Master Muir described why the plaintiff sought to be relieved from attending oral examinations, then making his findings thereon:

4. The plaintiffs argue that Maria should be relieved of a portion of her discovery obligations for the following medical related reasons:

• she is unable to respond appropriately to questions or interact with other persons with any degree of reason; she is unable to cooperate in the discovery process;

• the discovery process would increase Maria's anxiety and symptomology: : Maria has very little interaction with others and poor communication abilities;

• the medical evidence supports the conclusion that Maria is unable to participate in the discovery process.

5. The starting point on any motion of this nature is to acknowledge that a party to litigation has a prima facie right to a full and complete discovery of any party adverse in interest. See McGowan v. Haslehurst, 1977 CanLII 1192 (ON SC), 17 O.R. (2d) 440 (H.C.) at page 441.

6. Such discovery includes documentary production and the right to an oral examination if the examining party so chooses. It may also include the right to a medical examination where a party's physical or mental condition is in question. See Rules 30, 31 and 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

7. A party's discovery rights should only be limited in the rarest of cases, The threshold to be met is a high one. See Botiuk v. Campbell, 2011 ONSC 1632 (S.C.J. - Master) at paragraph 43.

8. A party seeking to avoid attendance at an oral examination for discovery for medical reasons has the onus of providing the court with "persuasive" or "compelling" medical evidence of a real potential that the party could suffer psychological damage. See Kidd v. Lake, 1998 CanLII 14714 (ON SC), [1998] O.J. No. 4078 (G.D.) at paragraphs 4 and 14. A temporary exacerbation of a party's condition is not a sufficient justification for denying an opposing party its discovery rights. See Botiuk at paragraphs 60 and 61.

9. I have carefully considered the medical evidence and the submissions of the parties. I am simply not satisfied that the plaintiffs have met the very high threshold applicable to a motion of this nature. I appreciate that there is a significant amount of evidence to suggest that Maria may be suffering from serious medical conditions. The medical reports from her various health care providers suggest that she suffers from post-traumatic stress disorder and severe depression. She has noticeable functional difficulties and has difficulty interacting with others. Maria apparently suffers from impaired attention and concentration, poor memory and hallucinations, among other conditions.

10 What is not found in the medical evidence, however, is any statement that Maria would suffer any permanent psychological damage if she were required to attend at an oral examination for discovery or a defence medical examination….[emphasis added].

[67] In the above cases, including Lalousis and Ferrara, at least some detailed medical information was made available to the court, as contrasted with what was put before me in this matter. In these cases, it appears that some of the parties for whom the exemption was sought had profound medical conditions, far more so than the not-atypical age-related problems which Mr. Nanji claims afflicts his father. Yet, as Master Haberman made clear, age and even a fading memory are not a sufficient excuse on their own to exempt one from oral examinations. In this case, there is simply no reliable evidence that Nanji, despite being age 90, could not be examined while in his home, for a short period of time, allowing for breaks, in a safe fashion which would not permanently exacerbate any unparticularized cardiac or other condition.

[68] Applying the case-law to the facts before me, I conclude that the defendant has not met the high onus to be excused from the resumption of his oral examination for discovery. Oral discoveries of the defendant will thus resume, on these terms:

1. The time-limit for the remaining examination will be up to 50 minutes, in total. I allow counsel for the plaintiff some additional time, over the 35 minutes that he estimated was needed, given the presence of an interpreter, as that usually slows matters down. I also account for the fact that both lawyers were over-talking on occasion on the first day, albeit I hope they will avoid or minimize interruptions going forward.

2. The examination will take place by Zoom, with Nanji able to remain at home or be wherever he chooses to be the most comfortable.

3. Breaks shall be taken when Nanji requests one. Breaks do not count toward the 50 minutes of time.

4. The examination can take place over several days, if Nanji prefers.

Thus, on these terms the motion of the plaintiff is granted.

Costs and an Order:

[69] Costs were addressed following completion of submissions. The parties had also uploaded their costs materials to Caselines, which I have reviewed. The plaintiff, having been fully successful, is entitled to costs. The partial indemnity rate sought is $4,059.96. The actual rate is stated in the plaintiff’s Costs Outline to be $5,909. Defendant, if successful, sought partial indemnity costs of $2,062.25. Yet, other than filing two decisions, counsel for defendant did not deliver a factum, as did counsel for plaintiff. It is also not unusual that a moving party must expend more effort, so, more in costs, than a responding party.

[70] In my view, the case-law on the issue of the defendant’s re-attendance is clear and well established. It was accordingly surprising that defendant chose to resist this motion, especially given the paucity of its evidence, medical and otherwise. Previously in these reasons, I addressed the improper hearsay and opinion evidence, as well as the scandalous nature of some of the evidence which defendant chose to tender. I consider these issues when fixing costs.

[71] Applying the Rule 57 factors, and the well-established case-law thereunder, when dealing with the costs of a motion or other proceeding, the overall objective of the court is to fix a fair and reasonable amount in all the circumstances of the individual case. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[72] In the circumstances of this case, considering a motion that should not have been required, nor, when brought, resisted, with a responding record that was in part improper, I fix costs at $4,500.00, payable by defendant to plaintiff in 30 days.

[73] Assuming that the parties can agree on the terms of an Order, such may be sent to ATC Mr. Magnante for my review and signature.

ASSOCIATE JUSTICE J. JOSEFO

DATE: June 16, 2022