COURT FILE NO.: CV-19-81211

DATE: 2022/08/23

COURT OF ONTARIO SUPERIOR COURT OF JUSTICE

Title of Proceedings:

HASSAN BERJAWI and THE ONPOINT GROUP LTD. Plaintiffs/Moving Parties (Defendants by Counterclaim)

and

JOHN KINNEY and CAROL ELIZABETH BERNARD Defendants/Respondents (Plaintiffs by Counterclaim)

Counsel:

Kevin Butler, for the Plaintiff Cheryl McLuckie, for the Defendant

Before:

Regional Senior Justice Calum MacLeod

Heard:

August 2, 2022

DECISION AND REASONS

1This motion arises from a discovery dispute. It raises an interesting practice point. In what circumstances is it reasonable for counsel to request the right to examine one co-defendant for discovery in the absence of the other? The answer is “when it can be reasonably justified”. The interesting twist in this case is the fact that the discovery was a virtual discovery. In these reasons I consider whether that should have made a difference.

Background

2It appears the facts are these. This action was started in September of 2019 and pleadings were closed in February of 2020. There was no discovery plan as such. A draft plan was served by former counsel for the plaintiff, but the parties did not discuss the issues and reach agreement as required by Rule 29.1. There was no pre-discussion about issues such as who would be present during the examination. There was no schedule regarding the exchange of affidavits of documents.

3Of course, the pandemic intervened. Discoveries were eventually scheduled for December of 2021 after some disagreement about affidavits of documents and a case conference before Associate Justice Kaufman. There was some further disagreement about discovery dates due to apparent failure to complete documentary disclosure in accordance with the timetable established at the case conference, a change in the counsel with carriage on behalf of the plaintiff (Mr. Cummings to Mr. Butler) and a request that had been made for a second case conference.

4Ultimately discoveries were to have taken place on February 24, 2022. This discovery did not proceed because there was a last-minute disagreement between counsel about the length of the discovery and whether all parties could be examined in one day. According to the plaintiff, defence counsel then unilaterally advised he would not produce his clients. According to the defendant, plaintiff’s counsel failed to respond to the request to either confirm that discoveries would be completed in one day or to adjourn to another date. The plaintiff attended and obtained certificates of non-attendance. Part of the motion before the court is to recover “costs thrown away” for the cancelled discoveries.

5Following another case conference with Associate Justice Kaufman, the parties agreed to hold discoveries on July 19 and 20, 2022. Subsequently, at the request of the defendants, it was agreed that the discoveries would take place virtually. It does not appear that there was any discussion about the mechanics of the virtual discovery.

6At no time prior to July 19, did either counsel discuss the question of who would be present in the discovery room. The issue was not addressed in the draft discovery plan or at either case conference nor, it would seem, when counsel agreed to have a virtual discovery. Counsel for the plaintiff assumed that, as he believed was customary, the co-defendants would each be excluded while he discovered the other. On July 19, when he began the discovery of Mr. Kinney, he discovered that Ms. Bernard was in the room with the witness and asked that she be excluded. Defence counsel refused and took the position that parties had a right to be present. Plaintiff’s counsel then adjourned the discovery to bring this motion.

7It should be noted that in the structure of the virtual discovery, counsel were not present in the same room as the parties to be examined. The defendants, who are spouses, were together in their home and the lawyers were in their respective offices. This, of course, is quite different from the discovery structure in person in which the parties are present with the lawyers in front of the court reporter. It is also different from the structure sometimes used for virtual discoveries in which the client to be examined is at his or her lawyer’s office and the lawyer is present with the party being examined.

Analysis and Decision

8The first thing to note is that pursuant to Rule 29.1.05, the court has discretion to withhold relief or to refuse costs because of the absence of a discovery plan. The rationale behind this rule is the belief that parties and counsel have the obligation to discuss procedural questions, to consider how discovery and production can be achieved in a proportionate manner and generally to collaborate as much as possible in order to avoid unnecessary motions. When lawyers are involved, these duties are inherent to the responsible practice of law, to the duty of lawyers as officers of the court, and to principles of civility and professionalism.¹

9While I recognize that not every case requires a detailed written discovery plan, what is striking in this case is the failure of both counsel to take discovery obligations seriously or to talk to each other directly. The exchange of emails put into evidence simply demonstrates each of the counsel taking unilateral positions and creating disagreement where none should have existed.

10Once served with a notice of examination, a party is obliged to attend unless there is a specific agreement to adjourn. There was no such agreement in this case, but counsel did know that Mr. Hebert had stated clearly he did not wish to prepare twice for discoveries and was not available for more than a single day. Mr. Hebert contends that it was only at the last minute that Mr. Butler told him two days were necessary. I do not condone the refusal to attend in these circumstances but knowing that new dates would have to be set and already in possession of an email, it was not particularly useful for plaintiff’s counsel to fail to mitigate and to incur the cost of attending before the reporter and obtaining a certificate of non-attendance.

11This situation should never have arisen. I will not award costs thrown away under these circumstances. I am not condoning the failure of both counsel to engage in clear and civil communication. Defence counsel had no right to unilaterally attempt to dictate how his clients would be discovered or that it be condensed into a single day. Rule 31.05.1 permits each side to examine the other for up to seven hours, subject to agreement or court order. In the absence of an agreement, Mr. Butler would have been entitled to examine the defendants for a total of seven hours and to decide how much time he would have spent with each. Likewise, Mr. Hebert was entitled to examine the plaintiffs for seven hours and to decide how that time would be split. Fourteen hours of discovery cannot reasonably be accomplished in a single day.

12As for the right to exclude a party from the discovery of a co-defendant, it may be true that if the request had been made in a timely fashion, it would have been customary to agree. The fact that it often happens that way, however, does not make it a custom. The fact that something may be customary does not give counsel the right to insist upon it. This issue should have been foreseen and addressed in a discovery plan or in a case conference. When agreeing to virtual discoveries, counsel need to turn their mind to the mechanics.

13There is a presumptive right for each party to participate in all stages of the proceeding including the discovery of the other defendant. But this right will yield fairly easily when the parties are represented by the same counsel and the issues are such that there may be a significant risk of tailoring of evidence. The test for excluding a party from a discovery is not as stringent as exclusion from a trial. The factors that may lead the court to conclude that the interests of justice favour exclusion of the party witness were considered at length by the Divisional Court in Lazar v. TD General Insurance Company.²

14Not considered in Lazar was the arrival of presumptive virtual discoveries driven by the COVID-19 pandemic and now forming a significant part of the legal landscape. It is one thing entirely to have both witnesses together in the examination room in the presence of both counsel. It is quite another thing to have the husband and wife sitting together in their living room or basement with no lawyer, reporter or other witness to their conduct present. The risks of improper collaboration, communication or coaching are heightened in those circumstances and the case for exclusion of the party while the co-defendant is being examined is much stronger.

15Courts have been grappling with appropriate safeguards for witnesses testifying virtually at trials. Ideally, witnesses testifying virtually will be in the presence of a lawyer or agent of the lawyer who is an officer of the court and has ethical and professional obligations. Where that has not been possible, typically the witness is asked to verify that there is no one else present in the room, is asked to scan the room with the webcam and is asked to swear that the witness does not have access to documents other than those put to the witness by the examining lawyer. Similar thought will have to go into how to conduct virtual discoveries if all of the participants are in different locations.

16Under these circumstances, it is not surprising that Mr. Butler would object to the manner in which the discovery was structured. It is just unfortunate that no one thought about this in advance.

17Given the nature of the dispute and the community of interest between the defendants, by application of the principles in Lazar, this is a case in which it appears to me the interests of justice justify an order that each of the co-defendants give their evidence in the absence of the other. I would make such an order in this case even if the discoveries are held in person, but I would certainly make such an order if the discoveries are to be structured as had been proposed at the time.

Summary and Conclusion

18In conclusion, I will not award costs thrown away on the discoveries. I will make an order that the co-defendants submit to discovery in the absence of each other and may not watch the discovery of the other defendant prior to testifying. As all of this could have been avoided by counsel taking more care in setting up the discoveries and in discussing the structure, method and time required to conduct discoveries, I am not awarding costs of this motion.

Footnotes

1. 1See for example, Principles of Civility and Professionalism, Advocates Society, February 20, 2020 – in particular principles 6, 22, 25, 29, 31 and 35.
2. 2(2017) 2017 ONSC 1242, 137 OR (3d) 206; 2017 ONSC 1242