COURT FILE NO.: CV-17-3509
DATE: 2022 10 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TAJAMMUL HUSSAIN RANA and PREMIER TECHNICAL CONSULTANT LTD.
Plaintiffs
- and -
MOHAMMAD ZAKIR RAMZAN, 2182224 ONTARIO INC. and MOHAMMAD YOUSUF
Defendants
COUNSEL:
R. S. Mann, for the Plaintiffs
T. Walker and J. Koenig, for the Defendants
HEARD: September 21, 2022
REASONS FOR PLAINTIFF’S MOTION UNDER RULE 53.08
DALEY J.
[1] This action has a most unfortunate history.
[2] The trial began on January 11, 2022.
[3] After the close of the plaintiffs’ case and during the evidence on behalf of the defendants, counsel for the plaintiffs brought a motion returnable on January 28, 2022, seeking leave pursuant to rule 53.08 to introduce or use certain documents during the course of the trial that had not been previously disclosed to counsel for the defendants.
[4] The undisclosed documents in question were all included in the plaintiffs’ motion record and supporting affidavit material.
[5] This motion was brought to the attention of the court at the conclusion of the examination in chief of a defence witness, namely Noman Yousuf. Notably, counsel for the plaintiff had not yet begun cross -examination of this witness.
[6] Following the examination-in-chief of the witness Noman Yousuf unfortunately the trial was adjourned as counsel on both sides fell ill and were unavailable for several months.
[7] The trial resumed, as scheduled, on September 21, 2022, at which time the plaintiff’s motion was heard.
[8] Counsel for the defendants opposed the plaintiffs’ motion and filed the material in response.
[9] At the conclusion of counsel’s submissions, the plaintiffs’ motion was granted with reasons to follow.
[10] These are my reasons for granting the plaintiffs’ motion under rule 53.08.
[11] In his submissions on this motion, counsel for the plaintiffs urged that the motion should be granted on several grounds, including his proposal that if he was allowed to use the new documentary evidence, he would do so only for the purpose of impeaching witnesses in cross- examination. The documents would not be used as substantive of evidence.
[12] It was disclosed during the plaintiffs’ motion that several of the documents in question were disclosed or were introduced in evidence in a prior proceeding involving different parties, with some similar or overlapping issues where witnesses to be called in this trial had previously testified. This therefore potentially engaged rule 30.1, namely the implied or deemed undertaking rule. However, as counsel for the plaintiffs undertook to limit the use of the documents, if he was allowed to introduce them, to solely impeaching the testimony of a witness in this trial, it was urged that this enhanced the fairness in the use of these documents.
[13] Rule 53.08 (1), as amended, effective March 31, 2022, reads as follows:
(1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,
(a) there is a reasonable explanation for the failure; and
(b) granting the leave would not,
(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
(ii) cause undue delay in the conduct of the trial. O. Reg. 18/22, s. 10 (1).
[14] Prior to the amendment, the wording of subsection (1) of this rule provided that leave “shall” be granted.
[15] It was common ground that the amended version of this rule, which came into effect March 31, 2022, was applicable to the plaintiffs’ motion which was heard by the court in September 2022.
[16] In his decision in Brandiferri v. Wawanesa Mutual Insurance et al., 2011 ONSC 3200, Lauwers J., as he then was, concluded that rule changes that are not accompanied by an express transitional provision are understood to be procedural in nature and have retrospective effect: see para [13]-[16]. Accordingly, the amended version of rule 53.08 as set out above is applicable to the outcome of the plaintiffs’ motion.
[17] Clearly the amended language of rule 53.08 (1) is permissive and provides the court with somewhat broad discretion in allowing the use of late served or produced documents in evidence.
[18] In order to ground a successful motion for leave under this rule the party seeking the indulgence ,who is in default of their obligations, will have to show that there is a reasonable explanation for the failure to disclose the documents, and that granting of leave will not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment nor cause any undue delay in the conduct of the trial: Agha v. Munroe, 2022 ONSC 2508 at para [17]-[19].
[19] As to the plaintiffs’ explanation for the failure to disclose and serve copies of the approximately 20 documents sought to be introduced, counsel for the plaintiffs, through an affidavit submitted by his law clerk, explains that it was simply an oversight that he did not disclose the documents prior to the bringing of the motion. The details as to the oversight are not compelling and standing alone they do not favour the granting of leave in the circumstances.
[20] As to the prejudice to the defendants that might occur and that could not be compensated for by costs or an adjournment or undue delay in the conduct of the trial, I have concluded that both of these considerations favour the granting of leave.
[21] Although the documents in question were served upon counsel for the defendants during the course of this trial and not long before the trial began, due to the unfortunate circumstances resulting in the very significant delay in this trial, counsel for the defendants have had the documents in question since January 2022. Furthermore, the examination-in-chief of the witness Noman Yousuf, although apparently concluded before the lengthy adjournment occurred, had not yet fully concluded and the cross-examination of this witness had not commenced. Thus, it was open to counsel for the defendants to speak with this witness about the newly disclose documents and given that cross-examination had not yet commenced, it would have been open to them to continue the examination -chief if so instructed, on the newly disclose documents.
[22] Furthermore, although were it not for the lengthy adjournment that occurred, it would certainly have been open to the defendants to argue that they had been ambushed by these undisclosed documents, ultimately that did not occur because of the adjournment.
[23] No adjournment was sought by counsel for the defendants when I provided my short ruling relating to the plaintiffs’ motion. My ruling provided that the documents could be used by counsel for the plaintiffs solely for the purpose of impeachment in cross-examination of the defendants’ witness Noman Yousuf. Furthermore, it was made a term of the order in favour of the plaintiffs that counsel for the defendants was at liberty to review the new documents with the witness and if so advised recall the witness to address any issues connected with those documents.
[24] As to further delay in the conduct of this trial, given the way the plaintiffs’ motion unfolded including the delay between the time the motion was launched and when it was argued, and further given that the trial proper and the evidence of Noman Yousuf continued on the day immediately following the arguing of the plaintiffs’ motion, it cannot reasonably be said that there was any significant delay of this trial associated with the plaintiffs’ motion and the late document disclosure.
[25] In the result, the plaintiffs’ motion for leave to use the documents in question was granted solely for the purpose of impeaching the witness’ testimony and not as substantive evidence. As noted, counsel for the defendants is at liberty to disclose and discuss the documentary evidence with the witness Noman Yousuf and his examination chief.
[26] Further, as provided in my oral ruling on this motion, each document forming part of the new evidence may only be used by counsel for the plaintiffs subject to any objections counsel for the defendants may have as to the admissibility and relevance of the documents. Counsel for the defendants are free to object to the use of documents on any evidentiary basis that would otherwise have been available to them were it not for the late disclosure of the new documentary evidence.
[27] As to the costs of the plaintiffs’ motion, counsel shall file written submissions of no longer than two pages along with costs outlines within 10 days from my oral ruling in this matter on September 21, 2022.
Daley J.
Released: October 6, 2022
COURT FILE NO.: CV-17-3509
DATE: 2022 10 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TAJAMMUL HUSSAIN RANA and PREMIER TECHNICAL CONSULTANT LTD.
Plaintiffs
- and –
MOHAMMAD ZAKIR RAMZAN, 2182224 ONTARIO INC. and MOHAMMAD YOUSUF
Defendants
REASONS FOR PLAINTIFF’S MOTION UNDER RULE 53.08
DALEY J.
Released: October 6, 2022