COURT FILE NO.: CV-13-2155-00
DATE: 2022 07 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA
P. Callahan, for the Plaintiff
Plaintiff
- and -
ROYAL BANK OF CANADA, SIVA GURRAPPADI, WILLIAM SYKES, USHA RADHAKRISHAN, SHEILA WILSON, ATTORNEY GENERAL OF CANADA, PHILLIP CARVER, ALBERT YANG, and THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO
G. Bowden, for the RBC Defendants
K. Watt, for RCMP
Defendants
HEARD: In writing
REASONS FOR DECISION
LEMAY J
[1] This action involves claims of negligence, malicious prosecution, and other related causes of action as a result of fraud charges that were brought against the Plaintiff and her husband. These charges flow from their application to the Defendant RBC for financing to start a plastics business. This action has been before the Courts for nearly ten years, and I have been informally case managing it for more than a year and a half. The Plaintiff has passed away in the last year and her husband Mr. Mylabathula is now proceeding with this action as a Trustee.
[2] On June 24th, 2022, I released my reasons on a series of refusals flowing from the parties discovery in this matter (see 2022 ONSC 3787). I did not decide whether the reattendance of any of the deponents was necessary although I left open that possibility and encouraged the parties to discuss the matter with each other.
[3] Counsel for the RBC Defendants wrote to me on July 4th, 2022, to advise that he wished to have some of the questions dealt with by way of a reattendance and that he had been unable to contact counsel for the Plaintiff to discuss the reattendance issue. I directed the parties to provide submissions on the issue.
[4] For the reasons that follow, I have determined that the Plaintiff’s husband Mr. Mylabathula is required to reattend personally to answer the questions that were refused. This attendance is at his own expense.
Background
[5] The background is set out in detail in my previous decision on undertakings and refusals (see 2022 ONSC 3787) and I will not repeat it here.
[6] However, the result of my decision on the refusals motion is that there are a series of areas from Mr. Mylabathula’s examination that require further questions to be answered. Those areas include:
a) Identifying customers of Mr. Mylabathula’s plastics business.
b) Disclosing Mr. Mylabathula’s experience in the plastics business.
c) Questions in respect of missing documentation from Mr. Mylabathula’s previous attempts to run a plastics business.
d) Questions in respect of Mr. Mylabathula’s previous arrest for fraud related charges.
e) The documentation that was found in Mr. Mylabathula’s car at the time that he was arrested.
[7] The bulk of the questions in all of these areas were refused, and I have ordered them all to be answered. I also set out that reasonable follow-up questions could be answered. Therefore, the scope of the reexamination could be extensive.
[8] I had left to the parties the question of whether a reexamination was necessary. However, they have not been able to agree on that issue. I will now set out the positions of the parties.
Positions of the Parties
[9] Counsel for RBC states that he is prepared to accept some of the answers in writing but wishes to reexamine on other answers. In terms of the areas that require reexamination, counsel argues that the questions that were refused covered a broad range of issues and that there will be follow-up questions. In addition, the follow-up questions will depend on the answers that are given to the initial questions. As a result, counsel for RBC argues that it would be difficult to conduct a written examination for all areas in these circumstances.
[10] Counsel for the Plaintiff argues that the alleged misconduct of RBC’s counsel in writing directly to me is, in and of itself, grounds to deny the request for a reexamination in person. In the alternative, counsel argues that there is no basis to believe that a reattendance is necessary, that the Court previously provided a timetable that does not include a reattendance and that a reattendance will cause further delay in the process.
[11] I will deal with the preliminary issue that counsel for the Plaintiff has raised separately from the merits of the request.
Issue #1- Did RBC Act Improperly in Contacting Me Directly?
[12] No.
[13] Counsel for the Plaintiff argues that counsel for RBC wrote directly to me on July 4th, 2022, without any consent from or notice to the Plaintiff. There are two problems with this argument.
[14] First, my order of June 24th, 2022, states (at para. 109):
[109] It also occurs to me that counsel may be seeking to have the parties that were examined re-attend. Counsel are to discuss amongst themselves whether a reattendance is necessary and resolve both the question of who is to reattend and when that reattendance is to take place. This is to be done within ten (10) calendar days of today’s date. Failing agreement, I am to be advised and will schedule an appearance to deal with the issue. The parties will be expected to make themselves available to address this issue in July on a date when the Court is available.
[15] My decision actually required that I be advised if the parties were not able to agree on whether a reattendance was necessary by July 4th, 2022. Counsel for RBC’s letter was actually in compliance with my decision and waiting any longer would have been a breach of my decision.
[16] Second, counsel for RBC has, at my direction, filed his written attempts to contact counsel for the Plaintiff about the reattendance. This correspondence was filed before Plaintiff’s counsel was required to make his submissions and was not addressed by Plaintiff’s counsel in his submissions.
[17] The correspondence shows that counsel for RBC attempted to contact counsel for the Plaintiff by e-mail on June 27th, 2022, June 28th, 2022, and July 4th, 2022. No responses were provided. Given that Plaintiff’s counsel did not either provide or mention any responses when he subsequently filed his submissions, I infer that counsel for the Plaintiff did not respond to this correspondence.
[18] It is not open to counsel for the Plaintiff to complain that counsel for RBC communicated directly with my office when counsel for the Plaintiff has failed to even respond to requests from counsel for RBC to address an issue that I required the parties to address. This is especially true given that counsel for RBC’s letter was not sent until shortly before the deadline for informing me was reached.
[19] The Plaintiff’s position on this issue is without merit and I reject it.
Issue #2- Should a Reattendance be Ordered
[20] Neither party cited any law in their submissions. However, the legal principles in this area are well-known and I will briefly refer to them. Rule 31.03(1) of the Rules of Civil Procedure gives the Court the discretion to grant leave to examine a party more than once. Rule 34.15(1)(a) gives the Court discretion to order a person to reattend at an examination to answer a question found, after objection, to be a proper question.
[21] The application of Rule 34.15 is extensively discussed in Senechal v. Muskoka (District Municipality), 2005 CanLII 11575 (ON SC), [2005] O.J. No. 1406 (Ont. Master) and Blais v. Toronto Area Transit Operating Authority, 2011 ONSC 1880, (2011) 105 O.R. (3d) 575. Senechal states that the examination of a party is not completed until all proper follow-up questions have been asked and answered. However, ordering personal reattendance is discretionary. In considering whether or not to order personal attendance Courts will generally make an order if reattendance fulfills the purposes of discovery. Courts must consider whether the cost and time of a reattendance outweighs the benefits of a reattendance.
[22] For this case, I start by rejecting counsel for RBC’s suggestion that some questions can be done in writing and others can be done by a reattendance. Only one method should be used to complete this discovery. Permitting multiple methods to be used to complete this discovery would complicate the matter and, given the history of this litigation, might also lead to more litigation.
[23] The issue then becomes should a reattendance be ordered or should be questions be answered in writing. I am ordering a reattendance for three reasons.
[24] First, I reject counsel for the Plaintiff’s assertion that a reattendance is not necessary. As counsel for RBC points out, there are a number of areas where there will be follow up questions and those follow up questions will be dependent on the answers given by Mr. Mylabathula. As a result, the parties could be into several iterations of written questions. A reattendance will eliminate that problem.
[25] Second, I am not persuaded that proceeding by way of a reattendance would result in a delay in this action. Indeed, as indicated in the previous paragraph, I am of the view that a reattendance would be faster than rounds of written questions. I should also note that the failure of counsel for the Plaintiff to respond in a timely way on whether a reattendance should be ordered also raises concerns about whether the Plaintiff would answer the written questions in a prompt manner.
[26] I should also address counsel for the Plaintiff’s assertion that the Court previously ordered a timetable and that a reattendance was not included on that timetable. That is of no moment as it was not foreseeable that a reattendance would be required. The purpose of the timetable is to move this action forward in a prompt manner. The Court must determine whether it is more efficient to order a reattendance or to order written questions. For the reasons set out above, a reattendance will be more efficient and will make it more likely that the timetable will be adhered to.
[27] Finally, counsel for the Plaintiff argues that “[t]here is also no evidence that the 15 remaining questions that the Plaintiff must answer are critical to RBC’s case.” There are two problems with this assertion. First, there is no limitation on the number of questions that can be asked on a reattendance. There are discrete topics that are the subject of reexamination, but there is no limit on the number of questions. Indeed, at points in my decision I outline what reasonable follow up questions (and topics) might be.
[28] Second, some of the reexamination topics are central to RBC’s case. For example, Mr. Mylabathula’s claim that he had extensive experience in the plastics business if true will support his position. If that claim is untrue, however, it will go some way to demonstrating that RBC and the RCMP had reasonable grounds to believe that there was a potential fraud being committed by the Plaintiff and Mr. Mylabathula.
[29] Therefore, the questions are central to at least part of RBC’s case and a reattendance is required.
[30] I note RBC’s position that, on the reexamination, questions that are refused should be answered and the answers put in a separate transcript until relevance can be determined. I am not yet prepared to make that order but retain the jurisdiction to do so if necessary.
[31] Finally, I should note that I received a letter from counsel for RBC last week advising me that the Plaintiff had not provided the answers to undertakings that I ordered. I would expect that those answers would be provided promptly and, in any event, before the reattendance.
[32] Mr. Mylabathula is scheduled to attend for a debtor examination on August 11th, 2022. I expect the parties will agree to the reattendance sometime after that examination, but with the reattendance taking place in August. The parties are to agree on that date within seven (7) calendar days of the release of these reasons. If no agreement is reached on the date, my assistant may be advised.
Conclusion
[33] For the foregoing reasons, Mr. Mylabathula is required to reattend to answer questions at his own expense. The parties are to agree on the date for the reattendance within seven calendar days of today’s date. The reattendance is to take place in August.
[34] RBC has been successful on this issue. There may be an argument that costs should be ordered. To that end, I would suggest that the parties discuss amongst themselves whether modest costs in the range of $500.00 for these submissions would be appropriate. If no agreement is reached on costs, we will discuss that issue at the attendance on September 7th, 2022. The parties should be prepared to make submissions on that date.
LEMAY J
Released: July 28, 2022
COURT FILE NO.: CV-13-2155-00
DATE: 2022 07 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA
Plaintiff
- and -
ROYAL BANK OF CANADA, SIVA GURRAPPADI, WILLIAM SYKES, USHA RADHAKRISHAN, SHEILA WILSON, ATTORNEY GENERAL OF CANADA, PHILLIP CARVER, ALBERT YANG, and THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO
Defendants
REASONS FOR JUDGMENT
LEMAY J
Released: July 28, 2022