Court File and Parties

COURT FILE NO.: CV-19-1655-0000 DATE: 2023-04-06 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Stephen Pack and Natasha Bitsakakis Pack Plaintiffs – and – Cord Blood Bank of Canada Inc. and Bernadete Ellison a.k.a. Bernadette Scherz Defendants

Counsel: Emily C. Dunst, for the Plaintiff Bernadette Ellison aka Bernadette Scherz, self represented James Coristine, Counsel for the Attorney General for Ontario Safia J. Lakhani, Counsel for Iler Campbell LLP and Hunter Stone

HEARD: In Writing Pursuant to the Order of February 3, 2023

The Honourable Justice Valente

Decision on Motions

Introduction

[1] There were a number of motions before me on February 3, 2023.

[2] These motions included:

a) The motions of the defendant Bernadette Ellison a.k.a. Bernadette Scherz (“the Ellison Defendant”) for leave pursuant to Rule 39.03(4) of the Rules of Civil Procedure to examine certain named witnesses at the hearing of the plaintiffs’ motion to strike the statements of defence of the defendant, Cord Blood Bank of Canada Inc. (“Cord Blood Bank”), together with related relief (the “Witness Motion”);

b) The plaintiffs’ motion to quash the summons to witness, dated December 12, 2022 served on each of the plaintiffs;

c) The motion of His Majesty the King in Right of Ontario (the “Crown”) to quash the summons to witness, dated December 12, 2022, served on each of Ingrid Peters, Billy Trujillo and Cortney Turner, all of whom are employees of the Ministry of the Attorney General, Court Services Division;

d) The motion of Iler Campbell LLP to quash the summons to witness, dated December 12, 2022 served on Safia Lakhani and Hunter Stone (the above noted three motions at paras. I(b), (c) & (d) hereafter collectively referred to as the “Motions to Quash”);

e) The motion of the plaintiffs to strike the statement of defence of Cord Blood Bank (the ‘Motion to Strike’); and

f) The motion of the Ellison Defendant to strike the plaintiffs’ statement of claim and/or summary judgement dismissing the plaintiffs’ claim (the “Summary Judgement Motion”).

g) Subsequent to February 3, 2023, the plaintiffs also brought a motion in writing to quash the summons to witness, dated January 31, 2023, served on Kayla Sweet, a law clerk employed by the plaintiffs’ law firm. (the “Plaintiffs’ Supplementary Motion to Quash”).

[3] The Ellison Defendant, who prefers the plural pronouns, “we” and “they”, submitted that the Summary Judgement Motion proceed first for the sake of efficiency and in the interest of justice. Pursuant to the order of Justice Gordon, dated December 14, 2022, however, the Crown’s motion to quash the summonses to witness served on each of the employees of the Ministry of the Attorney General is to be heard first together with the plaintiffs’ motion to quash the summons served on each of them along with the motion to quash of the Iler Campbell LLP law firm. Justice Gordon also ordered that all remaining motions are to proceed as directed by the presiding justice on the return date.

[4] Accordingly, on February 3, 2023 and pursuant to Justice Gordon’s earlier order, as the presiding Justice, I ordered that the Motions to Quash be heard first in conjunction with the Ellison Defendant’s Witness Motion to be followed by the Motion to Strike, and finally, the Summary Judgement Motion.

[5] Prior to the commencement of oral submissions on the substantive issues, the Ellison Defendant requested that all motions be adjourned because she was experiencing heart palpitations and difficulty breathing. The Ellison Defendant also advised the Court that she required urgent medical attention.

[6] I was prepared to grant the last-minute adjournment request but on conditions given that the motions had been outstanding for some time (not to mention the action itself). I requested submissions as to what conditions might be attached to the adjournment.

[7] All counsel were united in their submission that as a condition to adjourning the motions before the Court on February 3, 2023, the Motions to Quash and the Witness Motion be heard in writing. The Ellison Defendant objected to this condition because she wishes to make oral submissions with respect to each of the motions to be adjudicated.

[8] Given the nature of the Motions to Quash and the Witness Motion and in the interest of respecting the principle of proportionality and avoiding any further delay, I ordered that these motions proceed in writing along with a timetable for the delivery of any additional materials relative to the motions.

[9] I have now considered the Motion to Quash, the Plaintiffs’ Supplementary Motion to Quash and the Witness Motion. This is my ruling.

Background Facts

[10] The plaintiffs have brought a motion to strike the statement of defence of Cord Blood Bank by reason, at least in part, that Cord Blood Bank has failed to comply with the order of Justice Smith, dated December 21, 2021, removing Iler Campbell LLP and Safia J. Lakhani as its lawyers and requiring it to appoint new counsel within 30 days after being served with a copy of the December 21, 2021 Order (the ‘Order’). The Order also stipulates that it shall take effect immediately without it being entered. The affidavit of service of Hunter Stone, law clerk with the firm of Iler Campbell, attests to the service of the Order on Cord Blood Bank on December 21, 2021.

[11] In support of the Motion to Strike, the plaintiffs have delivered the affidavit of Nabiel Dawood (‘Dawood’), a lawyer with the law firm representing the plaintiffs.

[12] Pursuant to their affidavit, sworn January 6, 2023, in support of the motion seeking leave to examine the plaintiffs, Kayla Sweet, Ingrid Peters, Billy Trujillo, Cortney Turner and a fourth Ministry of the Attorney General employee, Melissa Cox, the Ellison Defendant attests that each of these proposed witnesses “have knowledge of information and/or facts”…“that are different from the position(s) taken by Nabiel Dawood”. In the same affidavit sworn January 6, 2023, the Ellison Defendant states that these same proposed witnesses (with the exception of Melissa Cox) along with proposed witnesses, Safia Lakhani and Hunter Stone, “all have evidence that is material”…“that is likely to vary from the position taken by N. Dawood in his affidavit sworn on September 20, 2022 and will likely question his credibility”.

[13] In her affidavit, sworn January 6, 2023, the plaintiff, Natasha Bitsakakis Pack, however, states that neither she nor her husband and co-plaintiff, Stephen Pack, have any “knowledge, information or belief of the issues on the motion to strike other what is set out in the Affidavit of Mr. Dawood”.

[14] Kayla Sweet, in her affidavit, sworn February 15, 2023, states that she has “no knowledge, information or belief of the issues on the Motion to Strike”.

[15] For her part Cortney Turner, employee of the Ministry of the Attorney General and Supervisor of Court Operations, states in her sworn affidavit that:

… I have no knowledge, information or belief of the allegations in the pleadings, other then what I learned from reading the pleadings. Mr. Trujillo and Ms. Peters have each advised me and I believe that (i) he/she has reviewed the pleadings; and (ii) has no knowledge, information or belief of the allegations contained in the pleadings, other than the information they learned from the pleadings.

[16] Hunter Stone, law clerk with the firm of Iler Campbell LLP, attests that he had “no involvement in the within matter since the… Order was issued. Further, I am advised by Ms. Lakhani, and verily believe, that she had no involvement in this matter since the issuance of the… Order”.

Guiding Principles and Analysis

[17] The test for leave to examine a non-party at the hearing of a motion and the test on a motion to quash a summons are substantially identical. The Court will grant leave to examine a non-party pursuant to Rule 39.03(4) where (i) the non-party’s evidence is relevant and (ii) the examination does not constitute an abuse of process (see: Pastway v. Pastway, [2000] O.J. No. 3062 (‘Pastway’ ) at paras 27-28 ). Similarly, a proposed witness may move to quash a summons by reason that (i) the evidence sought is irrelevant or (ii) the examination is an abuse of process (see: Airport Taxi Cab (Pearson Airport) Assn. v. Toronto, [2009] O.J. No. 2144 (‘ Airport Taxi Cab ’) at para 27 ).

[18] On either motion, the party seeking to conduct the examination has the onus of establishing that the proposed witness has evidence relevant to the motion (see: Pastway, at paras 27-28 and Airport Taxi Cab, at para 26). In order to discharge its onus, the party seeking to conduct the examination must offer into evidence sworn testimony that the proposed witness is likely to have relevant evidence; it is insufficient that the proposed witness may have relevant evidence (see: Steeler Farms Inc. v. Ontario, 2017 ONSC 4756, at para 52). The Court of Appeal has stated in R v Harris, [1994] O.J. No1875 at para 27:

…when a subpoena or the right to call a witness is challenged as here, it is not sufficient for the party proposing to call the witness to merely allege that the witness can give material evidence; but rather the onus is on the accused in this case to establish that it is likely that Brian Johnston can give material evidence.

[19] It is my opinion that the Ellison Defendant has not discharged the onus of establishing that any of the proposed witnesses likely have relevant evidence with respect to the Motion to Strike. In order to satisfy the onus that is theirs, it is insufficient for the Ellison Defendant to allege merely that the proposed witnesses have material knowledge and information that are likely different from the evidence of Nabiel Dawood and will likely call into question his credibility. These conclusionary statements are wholly unsatisfactory in my view to meet the Ellison Defendant’s onus of establishing that the proposed witnesses have relevant evidence.

[20] Furthermore, I am also of the opinion that the examination of the proposed witnesses constitutes an abuse of process because the evidence sought is already available to the Ellison Defendant (see: Derenzis v. Scoburgh, 2021 ONSC 3286, at para 49). The plaintiffs have confirmed that they have no knowledge of the issues on the Motion to Strike other than which is contained in the affidavit of Mr. Dawood. Likewise, the Ministry Court staff have confirmed any knowledge they might have with respect to the Motion to Strike is limited to the filing and processing of Court documents. Thirdly, Hunter Stone states that neither he nor the Iler Campbell firm have had any involvement with this litigation since the Order was signed and served, the details of which are set out in the affidavit of Hunter Stone as documented in the Court file. Finally, Kayla Sweet attests she has no information regarding the Motion to Strike.

[21] I have no reason to question the unchallenged evidence of the proposed witnesses. I therefore find that whatever information the proposed witnesses may have with respect to the Motion to Strike is already available to the Ellison Defendant either in the form of the affidavit of Mr. Dawood or by means of a case history report or a certified copy of a Court document, both of which are readily available from the Court filing office.

[22] In this regard, I would point out firstly that non-party witnesses are only to be examined with respect to their knowledge. There is no obligation on non-party witnesses to inform themselves prior to the examination by making inquiries of others or through alternative means. Secondly, I note that based on their own evidence, the Ellison Defendant obtained a Court history report in December 2022.

[23] Finally, in the case of the Ministry of the Attorney General Court staff, I find that Crown immunity prevents the Ellison Defendant from compelling the testimony of these proposed witnesses. At common law, the Crown is immune from submitting to discovery. While Crown immunity may be lifted in certain circumstances pursuant to the provisions of the Crown Liability and Proceedings Act, 2019 (the “ CLPA ”), section 19(2) the CLPA expressly preserves Crown immunity from discovery in those proceedings in which the Crown is not a party. Simply put, as the Crown is not a party to this proceeding, the Ministry of the Attorney General employees cannot be compelled to submit to discovery.

Disposition

[24] For all the above noted reasons, I decline to grant leave to the Ellison Defendant pursuant to Rule 39.03(4) to examine the plaintiffs, Kayla Sweet, Ingrid Peters, Billy Trujillo, Cortney Turner, Melissa Cox, Safia Lakhani and Hunter Stone at the hearing of the Motion to Strike. Further, because summonses were served on each of the plaintiffs, Kayla Sweet, Ingrid Peters, Billy Trujillo, Cortney Turner, Safia Lakhani and Hunter Stone (the “Summonses”) without leave of this Court and leave is hereby refused, an order will go quashing the Summonses. I also order that the Ellison Defendant shall not issue further summonses with respect to any motion within these proceedings without further order of this Court (see: Farm Credit Canada v. 1047535 Ontario Limited, 2021 ONSC 541).

[25] I acknowledge that in their Witness Motion, the Ellison Defendant has requested relief in addition to leave to examine the above proposed witnesses. The balance of the relief sought by the Ellison Defendant in the Witness Motion is adjourned to the hearing of the Motion to Strike of which I have seized myself.

Costs

[26] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced plus a bill of costs) by email to my judicial assistant at Kelly.Flanders@ontario.ca and to Kitchener.SCJJA@ontario.ca. The party(ies) seeking costs may have 14 days from the release of this Decision to provide submissions, with a copy to the responding party(ies); the responding party(ies) will have a further 14 days to respond; and the party(ies) seeking costs a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Valente, J.

Released: April 6, 2023