Wu v Di Iorio, 2023 ONSC 3352

COURT FILE NO.: FS-18-03038 DATE: 20230602 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Nancy Wu, Applicant -and- Anthony Di Iorio, Respondent

BEFORE: FL Myers J

COUNSEL: I. Zylberman Dembo, A. Franks and A. Prewer, for the applicant Richard Niman and Jian Kang, for the respondent

HEARD: May 25, 2023

Endorsement

The Motion

[1] This is a family law application. The issues are typical of many family law applications. Yet, this proceeding is almost five years old and the applicant is still asking for financial disclosure. Her long motion for disclosure has been outstanding for almost a year-and-a-half. It has been adjourned three times from February 24, 2022 to November 1, 2022; then to March 16, 2023; and finally to June 27, 2023.

[2] The parties agree that the most recent adjournment was agreed upon explicitly on condition that Mr. Di Iorio attend for questioning (i.e. cross-examination) on May 18, 2023. Ms. Wu’s questioning was scheduled for May 19, 2023.

[3] On May 17, 2023, Mr. Di Iorio’s counsel advised that he would not produce his client for examination the next day. Ms. Wu’s counsel obtained a Certificate of Non-Attendance.

[4] Ms. Wu moves urgently to compel Mr. Di Iorio to attend for cross-examination so as not to lose the fourth motion date set for June 27, 2023.

The Basic Facts

[5] Mr. Di Iorio is a well-known business person. He is a founder of Ethereum Blockchain and its cryptocurrency. He is a man of untold wealth.

[6] It seems that, in this proceeding, Mr. Di Iorio would prefer to keep the extent of his wealth untold.

[7] Ms. Wu swears that she was involved in every aspect of the founding and development of the business as 50/50 partners with Mr. Di Iorio from the outset of their relationship in 2002 until they separated in October, 2017.

[8] On December 10, 2020, Kiteley J. ordered Mr. Di Iorio to pay interim without prejudice support to Ms. Wu of $100,000 per month.

[9] While Mr. Di Iorio has made some disclosure of his holdings, Ms. Wu submits he has just peeled back the outer layers. Ms. Wu has retained experts in the complexities of cryptocurrency and the cryptocurrency market to assist her to slice through deeper layers to try to reach the core information. Document requests made by the expert(s) through Ms. Wu’s counsel have allegedly been refused and are part of the subject of the upcoming long motion for disclosure.

[10] One of the experts retained by Ms. Wu is James McDougall. Mr. McDougall swore an affidavit dated August 30, 2022 in support of Ms. Wu’s disclosure motion. Mr. Di Iorio’s counsel will cross-examine Mr. McDougall on his affidavit on June 12, 2023.

[11] Mr. Di Iorio vociferously objects to Mr. McDougall serving as an expert witness. Mr. Di Iorio says that he and Mr. McDougall were once close friends. Mr. Di Iorio says he did business with Mr. McDougall and his partner in 2013 – 2014. But in 2015, Mr. Di Iorio says they had a severe falling out. After that time, Mr. Di Iorio says that Mr. McDougall’s partner has made disparaging comments about him. The partner also allegedly provided an author some secretly made recordings of conversations involving Mr. Di Iorio and distorted the conversations so as to defame Mr. Di Iorio in the ensuing book.

[12] Mr. Di Iorio is bringing a motion to exclude Mr. McDougall’s testimony because of his alleged lack of independence.

The Refusal to Produce Mr. Di Iorio for Questioning

[13] On May 16, 2023 Mr. Niman, for Mr. Di Iorio, wrote to Ms. Wu’s counsel to confirm that the examinations set for Mr. Di Iorio on the 18th and Ms. Wu on the 19th would proceed virtually.

[14] Mr. Franks, for Ms. Wu, responded that the Notice of Questioning previously served by his office required that Mr. Di Iorio’s examination proceed in person. Mr. Niman’s notice had set Ms. Wu’s examination to proceed virtually.

[15] Mr. Franks advised that he wished to examine Mr. Di Iorio in person because the document-intensive nature of the evidence would make a virtual examination take two to three times as long as attending in person.

[16] On May 17, 2023, Mr. Niman advised that, subject to instructions, he would produce Mr. Di Iorio in person on the 18th if Mr. Franks agreed to produce Ms. Wu in person on the 19th.

[17] Mr. Franks objected to the notion that Mr. Di Iorio’s attendance be made conditional on changing the manner of examination for Ms. Wu. He offered to discuss the format of Ms. Wu’s attendance after the examination of Mr. Di Iorio.

[18] Mr. Niman then insisted upon examining Ms. Wu in person. He wrote:

This is unfortunate. We had a genuine misunderstanding that both examinations were being done remotely. This is a basic and obvious issue of fairness, and there being a 'level playing field' when it comes to the nature of the examination and your insistence that Mr. Di Iorio's be in person.

We will not agree to "discuss Ms. Wu's attendance tomorrow". If you are not agreeing to produce Ms. Wu in person on Friday, then we will not produce Mr. Di Iorio tomorrow. If there is some issue with producing Ms. Wu in person on Friday, then we are willing to consider (on a fully without prejudice basis) an alternative date but as we have discussed that will surely be quite challenging. Please let us know.

[19] Before this first issue was resolved, a second issue arose. Mr. Franks disclosed that he was having Mr. McDougall attend the examination of Mr. Di Iorio to assist him.

[20] Mr. Niman wrote an email advising that he was “flabbergasted to hear” that Mr. Franks intended to have Mr. McDougall attend the examination given the expert’s “clear conflict of interest”. He insisted that Mr. McDougall’s role in the proceeding be left for the questioning of Mr. McDougall on June 12, 2023 and any motion that Mr. Di Iorio may bring to strike Mr. McDougall’s affidavit thereafter.

[21] Mr. Niman concluded:

We will not produce Mr. Di Iorio if Mr. McDougall is going to be present tomorrow. Please immediately confirm that he will not be present for the questioning tomorrow. Unless we have that confirmation, we will not produce our client.

[22] Mr. Franks responded:

I've never been flabbergasted before, but I don't think finding out an opposing party was bringing an expert to examinations in a highly technical case would do it. Anyway, we're entitled to have an expert of our choice, and the fact that Mr. Di Iorio does not like our expert's spouse is not a basis for claimed conflict or disqualification.

Mr. McDougall will be at the questioning tomorrow. [Emphasis in original.]

[23] Later that afternoon, Mr. Franks advised that Ms. Wu would attend in person on the 19th as had been requested by Mr. Niman.

[24] Mr. Niman responded and indicated that Mr. Cameron-Huff would also be attending Ms. Wu’s examination on the 19th. Mr. Cameron-Huff is in-house counsel for Mr. Di Iorio’s corporations. His attendance is as a representative of a corporate party. However, he is also alleged by Ms. Wu to be an important fact witness as he allegedly took care of transactions among the parties concerning their ownership of Ethereum shares and/or cryptocurrency.

[25] Mr. Franks then wrote:

You win. I'm flabbergasted.

It now seems that what is really happening is that your client just wants to delay his questioning and, ultimately, the motion. That is clearly the object of this exercise.

First we were told that "we cannot do in-person [examinations]." When I asked what the problem was, you responded that, "Duncan, our client and I can all do virtual." That was not my question. The suggestion was left that in-person was not an option.

We now find out that you are all - all three of you -- available for an in-person examination. But now your client refuses to attend because Mr. McDougall will be there. You have had Mr. McDougall's affidavit since last August. You have taken no steps to have him removed.

Now, in what seems to be a tit-for-tat exchange, you have told us that Mr. Cameron-Huff will be at Nancy's examination. This poses several problems.

First, you can correct me if I'm wrong, but you did not arrange before today for Mr. Cameron-Huff to attend. And if you did, please let me know.

Second, Mr. Cameron-Huff is not counsel on this matter. He never has been.

Third, Mr. Cameron-Huff is not an expert. He never has been. He is not required to assist in the conduct of the examination of Nancy Wu. But he is a material witness on the issue of disclosure and he is a material witness in this matter. (And regardless of what we may do, I'm not aware that your client has undertaken to not use him as a witness.] He, in fact, had to retain counsel for himself in this matter. There is no basis for him to be at the questioning - and his presence, as you know, is a problem because he is likely to be called as a witness and his communications are already in evidence.

So, no - Mr. Cameron-Huff is not a welcome attendee. But you know that already.

And the foregoing chronology makes it clear that Mr. Di Iorio is simply trying to delay the examination and the motion; when a specific term of your adjournment was that he attend for questioning on the schedule dates.

So while I'm hopeful that we can dispense with this silliness; if not, as mentioned in my previous email, we expect your motion to dismiss Mr. McDougall as a witness will be served next week. You've had his Affidavit for nine months.

I will also tell you that, for any motions that come of this, we will be asking the Court for an Award of costs that is meaningful given your client's net worth, such that the costs he must pay is far more than just a "cost of doing business."

[26] Mr. Boswell is counsel for Mr. Di Iorio’s corporation. On May 18, 2023, he responded to Mr. Franks:

Mr. Cameron-Huff is corporate counsel for Decentral Inc. He is not a material witness on the disclosure issue, nor am I aware of him being a witness for any reason in this matter. At all material times, he acted solely as legal counsel. In any event, even if he were to be a potential witness at trial, it does not preclude his involvement to assist on this interlocutory motion.

Mr. Cameron-Huff is entitled to attend in his role as corporate counsel, and he will be in attendance. [1]

[27] Mr. Franks then wrote:

I understand you are hoping to delay the examination, but this is not a free-for-all.

Corporate counsel - to say nothing of corporate counsel who is a witness to material facts, transactions and documents that he prepared - is not an appropriate attendee at a questioning. He will certainly be a witness at trial -- if not before. Nothing in Ms Wu's examination is of such a technical nature that his presence is required to assist.

You might want to review Justice Kiteley's endorsement and what she had to say about Mr. Cameron-Huff and the documents and corporate documents he prepared that are material to this action.

He may not attend

I will offer you the same caution as I did yesterday. If, by these antics, you try to interfere with the examination that was scheduled as a specific term of the adjournment request on the part of Mr. Di Iorio and Decentral, we will be asking for very significant costs and perhaps further sanctions.

We will see you tomorrow, with our client, prepared to be examined. We will not be producing her again should Mr. Di Iorio choose to not proceed tomorrow.

Today we attended to secure a Certificate of Non-Attendance as Mr. Di Iorio failed to attend his questioning.

[28] Much additional sound and fury then ensured among counsel.

[29] Ultimately, Mr. Di Iorio did not attend for questioning. Ms. Wu attended on the 19th as promised. But she refused to answer questions where, in her counsel’s view, it was inappropriate to provide her evidence with Mr. Cameron-Huff, a potential witness, in the room.

Submissions

[30] Mr. Franks submits that Mr. Di Iorio had no right to refuse to attend his examination. He had been duly served with a Notice of Questioning for a date that was expressly agreed among counsel.

[31] At most, Mr. Franks submits that Mr. Di Iorio could have refused to answer questions where answering in Mr. McDougall’s presence could be argued to be prejudicial. This was how Ms. Wu behaved when confronted by Mr. Cameron-Huff’s presence when she attended her examination as agreed.

[32] Mr. Franks points out that Mr. McDougall is an expert witness. He is not a witness to any of the facts of the case. It is counsel, Mr. Franks, who requires Mr. McDougall’s presence at the examination because of the esoteric complexity of all things blockchain and crypto.

[33] Mr. Di Iorio has provided some technical evidence about the nature of Ethereum. Mr. Franks says he needs help as counsel to understand the evidence to be given by Mr. Di Iorio while under cross-examination and to formulate appropriate questions.

[34] Moreover, Mr. Franks submits that there is nothing objectionable about an expert witness attending discovery or reading transcripts of evidence to learn about the facts.

[35] To formulate their opinions, expert witnesses need to be fed facts. The facts on which experts formulate their opinions can come from hypothetical assumptions provided by counsel or through review of evidence or both. Unlike a fact witness, there is no issue of an expert tailoring evidence based on hearing a fact witness’s evidence. Litigation experts generally have no first-hand evidence on the facts of the case to tailor.

[36] Mr. Franks then made the submissions largely encapsulated in his emails about but without the sarcasm. H submits that the respondent is obviously stalling yet again and that he should be punished in costs because money is no object to him.

[37] Mr. Niman responds that Mr. Di Iorio’s objections to Mr. McDougall’s independence are clear, cogent, and sworn. In fact, when Mr. Di Iorio objected to Ms. McDougall as an expert, Ms. Wu went out and retained a second expert witness from McCarthy Tetreault. Mr. Di Iorio objects to her independence as well.

[38] Mr. Niman advises that he is bringing a motion to strike Mr. McDougall’s affidavit. He submits that the issue of whether Mr. McDougall ought to be allowed to attend at the examination of Mr. Di Iorio should be deferred until after that issue is resolved.

[39] Mr. Niman relies upon the decision of Binks J. in Al's Steak House & Tavern Inc. v. Deloitte & Touche, 1998 CarswellOnt 5282, [1998] O.J. No. 6545, 30 C.P.C. (4th) 257. In that case, counsel sought to have a forensic investigator attend at the examination for discovery of the opposite party.

[40] Binks J. set out his understanding of the relevant legal principles as follows:

[2] It is trite to state that an examination for discovery is not a public hearing and with certain exceptions only opposing parties and their lawyers may attend.

[3] It is clear that a party requesting the presence of someone other than a party must obtain the permission of the court.

[4] Expert witnesses are often allowed to be present during an examination for discovery to advise and assist examining counsel which the technical complexity of the evidence is of such a nature that the party attempting to justify his or her presence could not proceed or could proceed only with difficulty to a satisfactory examination. It has been held that the expert assisting the examining counsel during the examination for discovery should not be a witness at the subsequent trial. This general rule has been stated in: Tridici v. M.E.P.C. Canadian Properties Ltd. (1978), 22 O.R. (2d) 319 (Ont. H.C.) at 320; Green v. R. (1979), [1980] 2 F.C. 524 (Fed. T.D.) at 526; Ian MacDonald Library Services Ltd. v. P.Z. Resort Systems Inc. (October 2, 1985), Doc. Vancouver CA004703 (B.C. C.A. [In Chambers]); ICC International Computer Consulting & Leasing Ltd. v. ICC Internationale Computer & Consulting Gmbh (1988), 66 O.R. (2d) 187 (Ont. H.C.) at 191 and 192.

[41] Binks J. dismissed the motion because the proposed expert:

[6] …is not an expert in the sense that that word is used in the jurisprudence that is of admitting experts to assist counsel in helping understand the technical or arcane questions in conducting examinations for discovery. The issue here appears to be that the officers of the department or the other defendants did not properly collect evidence. That appears to me to be a question of fact not requiring the presence of an expert at the examination for hearing.

[42] Mr. Niman submits that based on Al’s Steak House, Ms. Wu needed leave of the court to have an expert attend the examination to assist her counsel. Moreover, he submits that Mr. McDougall cannot attend as he will be a witness at the hearing.

Analysis

[43] The questioning being discussed in this motion is a cross-examination on affidavits rather than examination for discovery. I am not at all sure that issues of privacy apply to witness testimony as they do to compelled discovery. Certainly the deemed undertaking of confidentiality does not apply. See rules 30.1.01 (1)(a), (2). and (5) of the Rules of Civil Procedure, RRO 1990, Reg 194. Once a transcript of a witness cross-examination is filed with the court as evidence in support of a motion, it is publicly available information.

[44] When considering the difference between examinations for discovery and cross-examinations on an affidavit, I always start with the seminal decision of MacKinnon ACJO in Chitel et al. v. Rothbart et al.. The Associate Chief Justice reminded the profession that although the two procedures look alike, they are not the same. MacKinnon ACJO wrote:

Counsel seemed to have confused, in part at least, the right to limit "fishing expeditions" on examination for discovery with a severe limitation on the extent of proper cross-examination. Counsel at trial would not, on any and every pretext, seek to frustrate proper examination. If he did, he would be quickly corrected by the trial judge. Because a judge is not present does not mean that a counsel, who is an officer of the court, should take a different position. He should not answer some obviously significant question himself before the witness answers, unless it is done by agreement with counsel for the other side, nor lead his witness immediately after the witness has given a damaging answer to explain the answer. Nor should he interrupt and prevent, time after time, questions from being answered although a legitimate ground has been given for their being asked. It seems to me that this is so in all cases, but particularly where ex parte injunctions have been granted. In such cases the matter is one of urgency which should be determined as quickly as possible by the court without the party restrained being forced to bring interlocutory motions and appeals in order to get the answers of the deponent to relevant questions. I have digressed to a certain extent but I think it important that a practice not develop which would debase the value of the right to cross- examine and effectively frustrate its legitimate purpose.

[45] Discovery, as discussed below, is compelled disclosure of private information. However, as discussed by MacKinnon ACJO, cross-examination out of court on an affidavit is different. It replicates a cross-examination on sworn evidence in open court.

[46] I am not inclined to base my decision on this narrow process point. In my view, the analysis of the question of whether a person can attend an examination to assist counsel is no different on cross-examination out of court than it is on discovery.

[47] In my respectful view, the decision of Binks J. in Al’s Steak House does not represent a current statement of the applicable law.

[48] I am very reluctant to depart from a decision of a judge of this court. See: R. v. Sullivan, 2022 SCC 19 at para. 75.

[49] However, in Carter v. Canada (Attorney General), 2015 SCC 5, at para. 44, the Supreme Court of Canada held:

However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42).

[50] In Sullivan, at para. 66, the SCC quoted from this paragraph with approval. See also: Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, at para. 62.

[51] In my respectful view, this is an area in which developments have fundamentally shifted the parameters of the debate. It simply can no longer be the law that counsel needs leave every time she wishes to bring someone to help her at an examination. That would mean that in each case, a motion that could take up to a year to be heard would be required every single time the party opposite objects to counsel bringing someone to an examination to help him or her.

[52] The notion that an expert who helps counsel on discovery cannot be the expert at trial has been questioned already. In Poulton v. A & P Properties Ltd., Master Dash wrote:

13. In Al’s Steak House at paragraph 4, Binks J. stated in reliance on Tridici that “the expert assisting the examining counsel during the examination for discovery should not be a witness at the subsequent trial.” The British Columbia Supreme Court (in Ian MacDonald Library v. P.Z. Resort (1985), 6 C.P.C. 57) and the Federal Court, Trial Division (in Green v. The Queen (1979), 107 D.L.R. (3d) 690) considered Tridici and concluded there was no basis for such restriction. I am however bound by the decision in Al’s Steak House and therefore conclude that in Ontario an expert assisting counsel at examinations for discovery should not be an expert witness at trial.

[53] In a day when the need for expert witnesses was exceptional and costs and delay were perhaps less an issue for civil litigants, the notion of hiring two experts – one for discovery and one from trial – may have been seen to be appropriate doctrinal purity. Today however, the idea borders on lunacy.

[54] The changing role of experts in civil litigation is not a sudden occurrence. In his November, 2007 Summary of Findings and Recommendations of the Civil Justice Reform Project, the Hon. Coulter A. Osborne reported:

There has been a proliferation of expert reports. The culture of litigation has resulted in an “industry” of competing experts, which unduly increases costs.

[55] In R. v. Abbey, 2017 ONCA 640, the Court of Appeal commented:

[46] The modern Canadian law on the admissibility of expert evidence began with the judgment of Sopinka J. in R. v. Mohan, [1994] 2 S.C.R. 9. But in the last two decades since Mohan was decided the law on expert evidence has changed significantly.

[56] Expert evidence is now dealt with under the two-stage approach set out by the SCC in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. One of the express purposes of the new rules is enhance the judge’s gatekeeper roles so that “No longer should expert evidence be routinely admitted…”. See: Abbey at para 53.

[57] The recognition of the desire to control the plethora of expert witnesses does not diminish however the cases where expert witnesses remain necessary and routine. For example, in all but the most obvious trials, professional malpractice cases require expert evidence to prove that the defendant violated the prevailing standard of care. Moreover, in motor vehicle accident cases, experts on accident reconstruction, the cause and extent of the plaintiff’s injuries, the plaintiff’s future career expectations, and the extent and cost of the plaintiff’s future care, remain necessary and routine.

[58] I recognize that my experience is not evidence. But I have seen many experts help examining counsel and I do not recall leave of the court ever being required. I suppose that, ironically, if prevailing practice in the marketplace is a relevant fact, evidence would be required to establish the practice from an expert witness.

[59] It seems to me that the decision in Al’s Steak House was greatly influenced by the decisions of Borins J. (as he then was) in Baywood Paper Products Ltd. v. Paymaster Cheque-Writers (Canada) Ltd. and of Anderson J. in ICC International Computer Consulting & Leasing Ltd. v. ICC Internationale Computer and Consulting GmbH (HCJ). These two ground-breaking decisions established that parties have a prima facie right to attend each other’s examination for discovery. A party who wishes to try to exclude a party opposite from discovery has a burden to move for that relief on showing that there is a significant risk of mischief (such as improper tailoring of evidence) if the opposite party hears the evidence to be given at the examination.

[60] Part of the rationale for these decisions was that examinations for discovery: (a) are state-compelled disclosure of private information; and (b) are the province of the parties rather than counsel. It is the parties’ litigation after all.

[61] How the burden to bring a motion to exclude a party opposite then evolved to become a burden to bring a motion to allow counsel to have assistance is not really explained in the cases.

[62] For example, in Tridici v. M.E.P.C. Canadian Properties Ltd. et al., a case relied upon by Binks J. in Al’s Steak House, Van Camp J held:

It is well settled that the examiner's office is not a public Court, that the examiner has the discretion as to whom may be present, and that such discretion is not to be interfered with on review unless exercised on a wrong principle or improperly. (Reference is made to Smith et al. v. Walnut Dairy Ltd. et al., [1945] O.W.N. 801.)

[63] The judge’s reference to the “examiner” is to the official examiner rather than to the examining party. That was in the days when examinations had to be held at premises managed by duly appointed “official examiners”. There is no issue of deference to a ruling by an official examiner here. Nor has there be one in decades.

[64] What is the point of requiring leave to determine if a non-party should be allowed to attend an examinations to assist counsel? In Al’s Steak House and other cases the courts went through a process of determining whether, in the judges’ views, the proposed person was sufficiently expert to be of use to the questioner.

[65] If one is looking at the qualifications of the proposed helper to determine if counsel should be allowed assistance, shouldn’t one also be considering the capabilities of counsel? The qualifications of the helper are only one factor in an assessment of counsel’s bona fide need for assistance.

[66] I recognize that this is a “straw man” argument. The court is not about to start considering counsel’s capabilities. The point is though, that the assessment of the helper’s qualifications alone does not really help the court answer an underlying question of whether the presence of the helper is needed in good faith by counsel so as to be sufficiently important to allow a third party to sit in on an examination.

[67] To answer the first part of this balancing equation, I suppose, one could look at the complexity of the issues, the knowledge of the examining lawyer, the capacity of the examining lawyer to learn the complexities before the examination so as not to need any help, and the qualifications of the helper/expert.

[68] And. in my respectful view, none of this is any of the court’s concern.

[69] In fact, I agree with Klebuc J that counsel who requests help should be taken at his or her word barring proof of grounds to the contrary. See: Ormiston v. Matrix Financial Corp., 2002 SKQB 257, at para. 23. So why require a motion in every case?

[70] In fact, I cannot find the countervailing harm that underlies the need for a balancing test to determine if a supposed expert may be allowed to attend an examination to assist counsel. If the process is abused, the opposite party can always move to exclude the person or people whose attendances are challenged. But why should counsel need leave of the court to bring someone to assist?

[71] In these days of computers and electronic filing of huge volumes of material in a wide variety of native formats, should counsel need leave to bring someone with her who is not an expert witness at all – but just to help manage the document presentation technology? If Al’s Steak House applies, not only is leave required, but it must also be refused because the assistant is not helping counsel “understand the technical or arcane questions in conducting examinations”.

[72] If the issue is privacy, in my view, the position of an expert brought to assist counsel is no different than a junior or student or summer student or a clerk who is brought to an examination for the same purpose. The junior may be in the same firm as the examining counsel, but that is not necessarily so. The person may be licensed by the Law Society of Ontario. But that too is not necessarily so. Like a junior or a tech person, the expert is brought as an agent of counsel and should be deemed subject to the same obligations as counsel. Perhaps, in appropriate cases, a written undertaking or confirmation should be provided if a concern is raised.

[73] Here, Mr. Di Iorio objects to the presence of an expert witness whose independence he is challenging. Mr. Niman could not explain to me how the presence of a challenged witness has anything to do with Mr. Franks’ desire to understand Mr. Di Iorio’s testimony on complex, technical facts. Mr. McDougall is not giving evidence while he whispers in Mr. Franks’ ear (or sends him messages on their electronic devices).

[74] In fact, won’t Mr. Di Iorio’s arguments claiming bias against Mr. McDougall potentially be enhanced if Mr. McDougall positively helps counsel opposite rather than simply providing a neutral opinion to the court?

[75] I cannot see how Mr. Di Iorio could be prejudiced in the least by Mr. McDougall’s presence to help Mr. Franks on a complex, technical cross-examination.

[76] I equally cannot see a reason why it makes sense to require unnecessary motions in a justice system promoting proportionality and trying to actively minimize cost and delay.

[77] Finally, I note that the entire process was unsatisfactory on both sides. Of course it looks like Mr. Di Iorio is being obstructive. By what right did he make the first demand that he be entitled to examine Ms. Wu in person after delivering a Notice of Questioning for her virtually? The suggestion that an in-person examination was needed to “level the playing field” implicitly assumes that in-person examination is a superior format compared to a virtual examination. If that is so, why did Mr. Di Iorio’s counsel choose the sub-optimal format to begin with?

[78] Mr. Franks’ responses were no doubt witty and very clever. But were they aimed at helping or inflaming counsel caught out on a misunderstanding? While Mr. Di Iorio had no right to make demands, what harm would it have been to agree without tweaking counsel’s nose? Ms. Wu agreed several hours later anyway.

[79] Then came the Cameron-Huff kerfuffle. Was that a tit-for-tat? Possibly. Probably. But it was also different. Mr. Cameron-Huff is said to be a fact witness. Moreover he attends as a representative of a party. Under ICC and Baywood, he was entitled to attend unless Ms. Wu obtained an order excluding him.

[80] I am concerned then by the self-help on both sides. Mr. Franks had no right to object to questions just because Mr. Cameron-Huff was present. If Ms. Wu did not move to exclude Mr. Cameron-Huff, then he was entitled to be there. Mr. Franks remains free to use the attendance as fodder for later cross-examination of Mr. Cameron-Huff if and when his attendance becomes relevant.

[81] Mr. Niman had even less right to refuse to produce Mr. Di Iorio. They had Mr. McDougall’s affidavit since August, 2022 and did nothing. There was no reason for them to do anything about it. Objections to admissibility are best left to the motion judge. 1196303 Ontario Inc. v. Glen Grove Suites Inc., 2012 ONSC 758. The kneejerk reaction to try to bring an urgent motion now and to try to defer cross-examination of Mr. Di Iorio until the status of Mr. McDougall is determined, all just weeks before the return of the long-awaited disclosure motion, are transparent and unhelpful tactics.

[82] Moreover, counsel is not a judge with authority to free his client of his legal obligation to attend. Mr Di Iorio is now in breach of a validly served Notice of Questioning and a specific agreement of counsel to the dates. A motion to strike his affidavit could have been brought. One can still be brought at the hearing if the examination ordered below does not take place.

[83] Mr. Di Iorio was required to attend the examination and answer all proper questions. His complaints about Mr. McDougall, if actionable, can all be made later if it ever becomes relevant.

[84] There is no unilateral right to refuse to attend a properly scheduled examination based on a last-minute assertion that the other side is in breach of the rules. Here, the breach is over the presence of a person whom the other lawyer wants to help him understand the complexities of a hugely complex cryptocurrency business. I can’t understand how Mr. Di Iorio’s has any business commenting on Mr. Frank’s desire for assistance. As noted above, there is no prejudice to Mr. Di Iorio by Mr. McDougall’s presence and, in fact, his presence might even aid Mr. Di Iorio’s challenge to Mr. McDougall’s independence when he appears as an expert witness.

[85] For his part, might Mr. Franks have mentioned his intention to bring Mr. McDougall to the examination to Mr. Niman further in advance? Much depends on when Mr. Franks turned his mind to examination preparation and whether it crossed his mind that there are any limits on his entitlement to bring someone to help him.

Re-scheduling the Questioning of Mr. Di Iorio

[86] Mr. Niman first advised that Mr. Di Iorio “was not available” for cross-examination before June 12, 2023. That is the day set for the cross-examination of Mr. McDougall. Mr. Niman later clarified that he did not want the examination of Mr. Di Iorio to proceed until after he had cross-examined Mr. McDougall. That is not a basis to say that either he or his client “are not available”.

[87] A lawyer’s statement that a client or lawyer “is not available” is not to have a tactical desire built into it. It is a straightforward representation of fact about someone’s existing schedule.

[88] Counsel are required to cooperate on scheduling matters. The Rules of Professional Conduct and the Principles of Civility take this type of matter out of clients’ strategic hands. Counsel are positively required to deal with each other decently and cooperatively, with an eye to achieving the primary objective of the Family Law Rules to deal with cases justly for all parties.

[89] By the end of the hearing, Mr. Niman and Mr. Franks agreed that both were available to conduct the questioning of Mr. Di Iorio on June 9, 2023 and I so ordered. The issue now is just whether Mr. McDougall can attend the cross-examination to help M. Franks.

Conclusion

[90] In my view, the treatment of experts in civil litigation has fundamentally shifted since 1998 when Al’s Steak House was decided.

[91] Cases have become much more complex. E-discovery has increased the volume of documentary discovery exponentially. Technology has increased the complexity of civil litigation. No one reasonably expects non-technical laypeople, lawyers and judges included, to understand the exceptional complexities of technologies such as blockchains and cryptocurrency.

[92] At the same time, experts are ubiquitous in court cases – so much so that it is necessary to control their use to try to contain cost and delay and to promote proportionality. A gatekeeper concept and the notion of using a cost-benefit analysis to assess the admissibility of expert testimony were unheard of in 1998.

[93] In my view, this is an area in which changes to our approach to civil procedure and experts in particular fundamentally shifts the parameters of the debate and calls for re-visiting the principles enunciated by Binks J. in Al’s Steak House. As I said above, the idea of requiring parties to use two different experts for discovery and trial is nonsensical today. It might be a “nice to have”. But it cannot be a “must have” in a process concerned with costs and proportionality.

[94] So, the issue then is should counsel be required to bring a motion every time they want to bring helpers to an examination or should they be presumptively entitled to do so subject to the other side’s right to move to exclude people where actual prejudice can be established on evidence?

[95] In my view, like excluding parties from attending examinations for discovery, the onus to bring a motion should lie on the party who seeks to exclude counsel’s chosen helpers. This properly reflects:

a. the proliferation of expert witnesses in civil litigation; b. the goal of reducing cost and delay in civil litigation; c. the reasonableness generally of counsel needing assistance with complex 21st century litigation; d. the lack of efficacy of an assessment of the qualifications of proposed helpers as experts; and e. the desirability of taking counsel at her or his word.

[96] This is a family law case. The primary objective of the Family Law Rules is to get to a fair and just outcome.

[97] The Court of Appeal has often repeated the fundamental necessity and expectation of voluntary and early disclosure of financial information in family law proceedings. It is “the most basic obligation in family law proceedings. The requirement is “immediate and ongoing”. No court order for financial disclosure is required. Roberts v. Roberts, 2015 ONCA 450 at para. 11, Aslezova v. Khanine, 2023 ONCA 153 at para. 12, Lalande v. Lalande, 2023 ONCA 68, at para. 5, Hevey v. Hevey, 2021 ONCA 740., at para. 26, McMaster-Pereira v. Pereira, 2021 ONCA 547, at para. 24, Sparr v. Downing, 2020 ONCA 793 at para 4, Mullin v. Sherlock, 2018 ONCA 1063, at para. 32, Burke v. Poitras, 2018 ONCA 1025, at para. 11, Sickinger v. Sickinger, 2018 ONCA 526, at para. 36, Wouters v. Wouters, 2018 ONCA 26, at para. 45, Manchanda v. Thethi, 2016 ONCA 909, at para. 13, Gray v. Rizzi, 2016 ONCA 152, at para. 31.

[98] That it has taken five years just to get to a motion for disclosure and preservation is, at minimum, unfortunate and, more likely, outrageous.

[99] A rule that prevents parties from erecting unnecessary roadblocks or requiring unnecessary motions to delay or frustrate the disclosure process supports the primary objective and is particularly apt in family law proceedings.

[100] For all of these reasons therefore, I hold that counsel do not need leave of the court to bring people to out-of-court examinations as their agents to help them as they deem fit in their bona fide professional judgment. A party who seeks to exclude counsel’s helpers may move to do so. Until such a motion succeeds, a witness has no unilateral right to refuse to attend a duly scheduled examination based on the presence of helpers for counsel opposite.

[101] As a result of the foregoing, I see no reason to exclude Mr. McDougall from attending the examination of Mr. Di Iorio on June 9, 2023 as Mr. Frank’s agent to assist him with the complexities of the subject matter of the examination as desired by Mr. Franks. Accordingly, he is entitled to attend. If I am found to be wrong, so that leave is required despite my conclusion to the contrary above, then I grant leave. I find that Mr. Franks reasonably wants assistance and Mr. McDougall has the expertise counsel requires. The issue of his status as an expert witness can be dealt with by the judge who hears the motion at which the expert testimony is sought to be introduced.

Costs

[102] Mr. Di Iorio should be required to pay costs thrown away by counsel obtaining a Certificate of Non-Attendance. I limit that to the actual disbursement to the reporter for the certificate.

[103] Mr. Franks was quite free with his threats to rain punitive costs sanctions down on Mr. Di Iorio and Mr. Cameron-Huff for their perceived efforts to delay this proceeding.

[104] Costs are compensatory. Yes, the scale can increase on proof of bad faith among other things. But none of that equates to using costs to penalize a person of great wealth with a quantum of cost sanctions that could actually matter to him as sought by Mr. Franks.

[105] I told Mr. Niman that he did not have to respond to any threat of costs over and above the regular costs rules.

[106] The costs associated with any delay of disclosure itself cannot be determined until the disclosure motion is heard later this month.

[107] In my view there should be no costs of this motion arising from the refusal of Mr. Di Iorio to attend questioning apart from the disbursement for the Certificate of Non-Attendance. The law required clarification. The motion was resolved very quickly and with relatively modest costs. Plus, while I do not approve of the tactics of delay that seem apparent, Ms. Wu played some of the same tit-for-tat games as Mr. Di Iorio and then topped it off with inappropriate threats of a misuse of costs.

[108] I can appreciate that Ms. Wu may be frustrated and even feel bullied by the effect of Mr. Di Iorio’s wealth in this application. The answer, however. is not to show resolve by descending to the same level of tactics. Rather, a party who wants to get to court has to ignore the detritus and refrain from taking the bait. At each step just focus on the high road to the courthouse door without being lured into detours.

[109] No costs.

FL Myers J Date: June 2, 2023

[1] Mr. Boswell was undoubtedly correct that as a representative of a corporate party, Mr. Cameron-Huff had a prima facie right to attend. But Mr. Boswell also asserted an entitlement to have Mr. Cameron-Huff “assist on this interlocutory motion”. That seems to be the same position as is being asserted by Ms. Wu concerning Mr. McDougall.