COURT FILE NO.: CV-21-328
DATE: February 9, 2022
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Marysun Pires Cunha, also known as Marysun Pires DaCunha and Sidonio Da Graca Alves Branco
v.
Irene Pires DaCunha, also known as Irene Highwin Pires DaCunha
COUNSEL: J. Rosenstein as counsel for the responding parties on the motion to quash
Frederick Shuh and William Cline for the Plaintiffs
L. Youd as counsel for the moving party on the motion to quash
Andrew Camman, Susan Toth and Jennifer Hawn for the defendant
HEARD: January 28, 2022
BEFORE: The Honourable Mr. Justice P. R. Sweeny
ENDORSEMENT
Introduction
[1] This is a motion by the defendant to quash two summonses to witness, issued under r. 39.03(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in the context of two interlocutory motions. The plaintiffs seek to examine two lawyers acting on behalf of the defendant.
[2] For the reasons that follow, the summonses are quashed.
Background
[3] The plaintiff, Marysun Cunha, and defendant, Irene DaCunha, are sisters. They own, as tenants in common, the property known municipally as 1791 Dundas Street, Cambridge Ontario (the Property).
[4] On May 21, 2021, the parties agreed to a consent order to sell the Property along with another jointly owned property “in such manner and on such terms as the parties shall agree or as the Court shall direct.” The other property has been sold. The proceeds of sale have been paid into court and some of proceeds have been paid out.
[5] There have been several case conferences in this matter before me. It is apparent that the parties have had difficulty in coming to agreement on many issues, including the manner and on such terms as the Property should be sold and the creation of a discovery plan to move the action forward. Extraordinary amounts of time and energy have been expended on issues only tangentially relevant to the resolution of the issues in dispute.
[6] On October 22, 2021, a complaint was made to the Law Society of Ontario against two of the lawyers for the defendant by a lawyer for the plaintiffs.
[7] A case conference was held before me on November 12, 2021. At that conference, the defendant indicated that she wished to have the Property listed for sale and a discovery plan put in place. The plaintiffs would not agree to a discovery plan which had examinations for discovery to be held before March 2022. I indicate that a motion would need to be brought by the defendant.
[8] The defendant brought a motion to: (1) list the Property for sale; (2) set a discovery plan and dates for examinations, and (3) provide access to all prospective purchasers to the Property, as well as costs on a substantial indemnity basis. This motion was originally returnable on November 22, but the date was not confirmed with the lawyers for the Plaintiffs.
[9] On November 18, 2021, the plaintiffs issued a claim against the defendant and the lawyers for the defendant seeking various forms of relief related to the sale of the other property and the sale of this Property.
[10] The plaintiffs brought a motion for an order:
(a) to amend their statement of claim;
(b) to vary or rectify an order by me;
(c) to release funds being held in court; striking out the affidavit of Susan Toth, that no lawyer from the firm acting for the defendant be allowed to provide affidavits on contentious matters;
(d) prohibiting the defendant from disseminating sensitive information;
(e) sealing the court file;
(f) requiring mandatory canvassing of dates;
(g) for an up-to-date appraisal;
(h) to list the Property for sale;
(i) to grant access to prospective purchaser; and
(j) for listing agreement or joint listing agreement and parameters for same.
[11] These motions were set to be heard on December 20, 2021 and subject to a timetable ordered by me on November 22, 2021. In the context of that timetable, cross examinations of “Susan Toth or other affiants” was scheduled for Tuesday, November 30, 2021.
[12] Prior to the date scheduled for examinations, the plaintiffs sent, by courier, summonses to witness and notices of examination to both Andrew Camman and Kerry McGladdery Dent who are lawyers for the defendant. The defendant’s counsel advised that they would move to set aside the notices of examination and quash the summons to witness.
[13] Cross-examinations were conducted of Susan Toth and the plaintiff, Marysun Cunha on their affidavits.
[14] The plaintiffs then brought a motion seeking directions from the court and to vary my order dated November 22, 2021 and to set a new timetable for the motions which were to be heard on December 20, 2021.
[15] The Motions could not be heard on December 20, 2021 due to my unavailability.
[16] On January 12, 2022, Mr. Youd appeared on behalf of Mr. Camman and Mr. Rosenstein appeared on behalf of Mr. Shuh. They were retained to argue the motion to quash. Mr. Rothstein said he was retained the day before. No responding material to the motion to quash had been filed. Mr. Rosenstein sought an adjournment to allow the plaintiff to file responding material and to put in place a timetable for that motion to be heard. In the interim, he submitted that the relief requested with respect to listing the Property for sale ought not to proceed until after the motion to quash was heard.
[17] The parties engaged in some resolution discussions, but the matters were not resolved on that date. The motions were adjourned to January 17. 2020. They were further adjourned with a timetable to allow for this motion to quash to be heard by me on January 28th.
Issues
[18] Given that the proposed witnesses are not parties and did not swear affidavits on these motions, there is no basis upon which to serve a notice of examination to compel attendance of the lawyer witnesses. Therefore, I am only concerned with the summonses to witness. The issues are as follows:
(1) Should the summonses be quashed for failing to comply with the Rules?
(2) Should the summonses be quashed on the basis that the witnesses have no relevant and necessary evidence?
(3) Should the summonses be quashed as an abuse of process?
Positions of the Parties
[19] The defendant says that the summonses should be quashed because they were not properly served, the witnesses are not necessary, and they are an abuse of process.
[20] The plaintiffs say that although not properly served, I should dispense with compliance under r. 2.03; the witnesses have relevant evidence; and, they are not an abuse of process.
(1) Failure to Comply with the Notice and Service Requirements for Summonses
[21] The plaintiffs acknowledge that the summonses were not served in accordance with notice requirements in the Rules. However, they resort to r. 2.01 and request relief from compliance. The plaintiffs say the lawyers knew they were to be examined because they received email copies of the summonses. Therefore, I should dispense with compliance.
[22] I imposed a strict timetable in order to have this motion heard on December 20. The timetable specifically set dates for cross-examinations. It did not include the examination of other witnesses. No request was made to examine other witnesses on the motion. It read in part as follows:
[23] The following timetable applies to these motions:
The defendants are at liberty to file a responding record to the plaintiffs’ motion by Friday, November 26.
Cross examinations are to be conducted on Tuesday, November 30, 2021 of Susan Toth or other affiants and Wednesday, December 1, 2021 of Marysun Cunha.
The parties are to deliver their factums by December 13, 2021. Responding Factums are to be delivered by Friday, December 17 at 1pm.
[24] In the plaintiffs’ motion factum, at para. 24, the plaintiffs incorrectly characterized my order. It reads, in part, as follows:
[25] 24. A portion of Irene’s argument on this motion is technical:
(a) On November 22, 2021, the Court ordered all examinations to be completed by the end of November.
(b) Toth’s cross-examination had originally been scheduled for three days later, on November 25, 2021.
(c) However, on November 25, 2021, Toth swore the second of her affidavits on the motion.
(d) On the same day:
(i) Mary’s counsel cancelled that cross-examination (and ultimately rescheduled it for November 30, 2021); and
(ii) Mary’s counsel asked the Court to issue summonses for the Witnesses.
[26] The assertion in paragraph (a) is not correct. I ordered that cross-examinations, not examinations, be conducted on two specific dates: November 30 and December 1.
[27] The assertion is paragraph (b) is not correct. Ms. Toth was to be cross-examined on November 30, not November 25.
[28] The assertion in paragraph (c) suggests that there was something improper in Ms. Toth swearing a second affidavit. That was specifically contemplated in my order which allowed for the filing of a responding record by November 26. The record was delivered in accordance with my order.
[29] The assertion in paragraph (d) is not correct. While Mary’s counsel did cancel the cross-examination, it was the cross-examination by Zoom on November 30 that was cancelled and became an in-person examination. The date had already been set. In addition, Mary’s counsel did not ask the court to issue summonses for witnesses on November 26 but did so on November 24. The cancellation of the zoom examination was done on November 25, not November 26.
[30] The plaintiffs agreed that the examinations would be conducted virtually. However, the plaintiffs inexplicably and unilaterally changed it to be in person. Was this to serve a summons to witness personally? Was this to personally serve the statement of claim which had been issued?
[31] The plaintiffs did not serve the summonses in accordance with the Rules. While it may be perceived as a technical argument, the plaintiffs did not comply with the Rules. There is no evidence that plaintiff did not know they were obligated to serve the summonses personally and provide appropriate notice. The plaintiffs want relief from compliance. I do not grant them that relief. While the summonses could be quashed on this basis alone, I will address the other grounds upon which the summonses are quashed.
(2) Do the witnesses have relevant and necessary evidence?
[32] In Lauzon v. Axa Insurance (Canada), 2012 ONSC 6730, Glithero J. set out the legal principles relevant to a motion to quash as follows:
[27] The party seeking to examine pursuant to Rule 39.03, if the summons is challenged, has the onus of putting forth a proper evidentiary base to support the examination of the non-party, and it must amount to more than merely speculation and allegations. The evidentiary base must demonstrate that the examination is likely to produce evidence which enhances the record to be considered on the return of the motion---as opposed to amounting to nothing more than “a fishing expedition”. It is not to be used as a general discovery within the action. The record must show that the witness likely has evidence relevant to the issues on the pending motion. See Coburn v. Barber, 2010 ONSC 3342, [2010] O. J. No. 2465 (S. C. J.-Master); Portelance v. Williams {2010] O. J. No. 4701 (S. C. J.).
[28] When the summons requires the production of documents which is overly broad it warrants an inference that the exercise is a “fishing expedition”: Coburn, (supra )
[29] In Manulife Securities International v Society Generale (2008), 2008 CanLII 13367 (ON SC), 90 O. R. (3d) 376, at paragraph 102 Campbell J stated the test to be “the basic premise that must be satisfied is that there will likely be evidence obtained relevant to the defendant’s motion(emphasis added)”.
[30] Where the party wishing to examine advances a proper evidentiary base demonstrating likely relevance the onus then shifts to the party resisting the examination to show that it would be an abuse of process, such as would be the case if the evidence sought was not necessary to the pending motion: Coburn, (supra), at para. 106.
[31] The jurisprudence demonstrates examples of the type of circumstances which have led to a denial of a requested examination as being an abuse of process:
-where the examination is found to be for an ulterior or improper purpose—such as a fishing trip: Palms of Pasadena Hospital v. Royal and SunAlliance Insurance Co. of Canada, [2008] O. J. No. 324 (S. C. J.) at para. 15;
-where the examination is sought in respect of opposing counsel as a form of retaliation for a perceived slight: GMAC Leasco Ltd. V. 1348259 Ontario Inc., [2004] O. J. No. 150 (S. C. J.);
-where the examination is sought of a solicitor so as to probe solicitor-client privileged communications: Jackson v. Vaughan, [2010] O. J. No. 527 (S. C. J.);
[32] Where a party seeks to call opposing counsel as a witness, there is an onus to demonstrate not only that counsel would likely have relevant evidence, but also that such evidence is necessary (emphasis added): R. v. Elliott, (2003 CanLII 24447 (ON CA), [2003] O. J. No. 4694 (C.A.)
[33] The plaintiffs assert in their factum that:
There is no hint in the authorities that a party to a motion is confined to the one witness the opposing party has chosen to put forward by way of affidavit, and is simultaneously precluded from examining the other witnesses to the same events.
[34] In my view, just because a person may have relevant evidence does not to mean that that person can be examined as a witness on a motion. There are often several persons who have evidence that may be relevant. However, having the evidence of three witnesses about an event may be unnecessary and not proportional. It will depend on a number of factors.
[35] The concept of necessary evidence has been employed to limit the use of a summons to witness: see Chown J. in Derenzis v. Scoburgh, 2021 ONSC 3286, Glithero J. in Lauzon at para. 35. This is supported by the concept of proportionality in r. 1.04(1.1), requiring the court to make orders and give directions that are proportionate to the importance, complexity, and amount involved in the proceeding.
[36] I would add that just because a property is appraised at $50 million does not mean that there should be no limit on the amount of time spent on the case by the lawyers. The amount involved is but one factor. It is the nature and grounds of the motions that delineate the issues.
[37] The fact that the proposed witnesses are lawyers for a party is an important consideration. In R. v. Elliot, 2003 CanLII 24447 (ON CA), [2003] O.J. No 4694, the accused alleged a conspiracy between the police and the Crown. The defence sought to examine Crown counsel on that theory. The Court of Appeal held that there was no reason that Crown counsel be examined given there was no actual evidence of the conspiracy. The Court stated at para. 114:
It is only in exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness. It is not sufficient that the counsel may have material evidence to give. The party seeking to call opposing counsel must lay an evidentiary foundation for showing that the counsel’s evidence is likely to be relevant and necessary. This stringent test applies whether it is defence counsel seeking to call Crown counsel or Crown counsel seeking to call defence counsel. This rule has been laid down in many decisions of the Superior Court
[38] This was in the context of a criminal case, but the reasoning has been applied in civil cases: see, for example, Viele v. Gargan Investments Ltd., 2018 ONSC 7793 at paras. 58 and 59.
[39] The requirement for necessity is an appropriate qualification to add in any case where a party seeks to examine the lawyer for the opposite party. Were it otherwise, a summons to witness could be served in many cases to seek evidence from a lawyer about correspondence, events, or meetings. This would lead to motion to disqualify the lawyer from appearing on the motion, adding costs and delaying the progress of the case toward resolution.
What are the issues to be determined on the motions?
[40] The evidence of the proposed lawyer witness must be not only relevant but necessary. This is determined by the issues on the motions.
[41] The defendant sought an order for a discovery plan, a joint listing of the Property for sale, and to allow potential purchasers access to the Property for the purposes of due diligence. In response, the plaintiffs sought a variety of relief in their motion. These were also procedural.
[42] The defendant’s motion for discovery plan was necessary as a result of plaintiffs’ counsel refusing to agree to any imposed dates for examinations for discovery. Gordon J.’s order that the properties were to be sold was made in May 2021 after some previous negotiations and attempts to have the Property sold. The defendant wants to implement a process to sell the Property.
[43] The plaintiffs commenced the action. The defendant sought the order to have the Property sold. A review of the correspondence between the parties shows the defendant consistently seeking to have the Property listed for sale and sold in accordance with the order. The plaintiffs appear to take issue with having the Property sold at this time. On the motion, the parties will make submissions as to the method by which the sale should be ordered by the court. That is one of the main issues on the motions. I would anticipate that other cases will also provide guidance. In fact, the plaintiff, Marysan Cunha, deposes that she has reviewed the cases. Evidence as to what transpired in the past, in my view, has little, if any, relevance to that issue.
[44] The plaintiffs also assert that the defendant changed her position with respect to what she is seeking on the motion and that change is further justification for the examinations. The defendant has made clear by the evidence of Ms. Toth on her cross-examination, that the motion was to try to produce a process for a sale but there is flexibility in term of the process. What seems clear on the record before me, and I do not think it is in dispute, is that the defendant wants this property to be sold in accordance with the order of Gordon J. as soon as possible.
What evidence is sought to be elicited from the proposed witnesses?
[45] The plaintiffs assert that in this case it is not necessary to outline what evidence they seek to elicit. The authorities support the position that the party seeking the evidence must establish what evidence is proposed to elicit and how it is relevant. In this case, there is no affidavit from the plaintiffs or plaintiffs’ counsel about what evidence they are seeking. In contrast to the outline of evidence provide by the party seeking to examine in Seelster Farms Inc. v. Ontario , 2017 ONSC 4756, the plaintiff, Marysun Cunha, deposed at para. 20 in her affidavit of January 16 that: “Irene and her lawyers are not entitled to know in advance what questions might be put to them.”
[46] It is common and not objectionable for counsel to provide affidavits which appends correspondence and deal with communication in the context of the action. This is especially so on procedural motions. This is not a motion for summary judgment or a dispositive motion where there is important evidence put forward that would affect the ultimate determination of the rights of the parties. In that context, affidavit from lawyers have been challenged. In Ferreira v. Cardenas, 2014 ONSC 7119, Myers J. set out why affidavits from lawyers and law firm staff are generally not appropriate in support of motions for summary judgment. He also acknowledged that there are some motions where evidence from the lawyers is important. This is one of those motions.
[47] What additional evidence do the witnesses have? In my view, nothing that is necessary to determine the motions.
[48] As I understand it, the evidence of these witnesses is sought to address events which occurred in a meeting where it is alleged that the conduct of defendant’s counsel caused an offer to be withdrawn; evidence concerning communications with prospective purchases; and evidence relating to the basis upon which the defendant’s counsel asserted that an auction is not an appropriate method to conduct the sale of the Property.
[49] Even if the proposed witnesses have some relevant evidence, I am not satisfied it is necessary. There is already evidence before me about those past events. I observe that the “opinion evidence” of the proposed witness Ms. McGladdery Dent was contained an affidavit previously sworn. That affidavit was not relied upon by the defendant on her motion.
(3) Are the Summonses an Abuse of Process?
[50] The areas of proposed examination, in so far as I can discern them, are issues also raised in the statement of claim which was issued naming the lawyers for the defendant as well as the defendant. This was issued after the defendant brought the motion. The broadly worded notice of examination and the suggested areas of examination support the view that this is for an ulterior purpose: To gather evidence related to the action. That is an abuse of process.
[51] The plaintiffs also appear to want to preclude the present lawyers for the defendant from continuing to act for the defendant. They have issued a claim against them. The other ulterior purpose for issuing the summons appears to be to preclude Mr. Camman from acting as counsel on the motions. The plaintiffs submit that that he cannot appear as counsel based on the affidavits as they are, so it does matter that he is examined as a witness. While examining him as a witness would almost certainly preclude him from arguing the motions, the present state of the record and whether he is precluded from appearing on the motions on that basis is not before me. The issuing of a summons to attempt to create a conflict is an abuse of process.
[52] In her affidavit sworn January 16, 2022, the plaintiff, Marysun Cuna, deposed at paragraph 29:
The last two court attendances on December 20, 2021 and January 13 [sic], 2022 could have been averted if Irene assumed the responsibility of signing her own affidavit and being cross-examined instead of having the Polishuk Camman lawyers, namely Ms. Susan Toth and Ms. McCladdery Dent swear all the defendant’s affidavits in this action to date. There is still time for Irene to swear an affidavit which adopts the contents of her lawyers’ multiple affidavits and attend cross-examination.
[53] The plaintiff, Marysan Cunha, in her responding affidavit refers to the fact that the filing of the affidavits of lawyers appears to be an attempt to shield the defendant from cross-examination. That should not be a relevant factor in determining whether the proposed witnesses have relevant and necessary evidence to give. This supports the finding that the summonses are an abuse of process. It appears there is an ulterior motive: to seek to have the defendant swear an affidavit. If the defendant’s affidavit adopts the contents of the lawyers’ affidavits and that means they need not be examined then it does suggest that the summonses were only tactical with increased costs, and delay for the defendant for failing to provide her own affidavit. In my view, an affidavit from the defendant is not necessary on these motions.
[54] What appears to be clear on the evidence is that the plaintiffs, while acknowledging the Property is to be sold, are not concerned that it be sold any time soon. They were not prepared to agree to a discovery plan although it is required under the Rules. They were not prepared to agree for dates for discoveries without an order. The dates that were not offered before March. The parties have now agreed to discovery dates in March. It appears that the plaintiffs’ tactics have been successful in delaying this matter.
[55] I am satisfied that the summonses are an abuse of process and should be quashed on that basis also.
[56] In the result, the motion to set aside the notices of examination and quash the summonses is allowed.
Costs
P. R. Sweeny, R.S.J.
[57] The defendant has been successful and is entitled to her costs fixed in the amount of $13,000 all inclusive, which was acknowledged to be reasonable by Mr. Shuh for the Plaintiffs, to be paid by the plaintiffs within 30 days.