Court File and Parties

COURT FILE NO.: CV-20-329 DATE: 20230906 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sukhminderjit Singh, Gurpreet Kaur Singh, Paramjit Kaur Braich, and Sarbjit Deol, Plaintiffs AND: Prabh Inderjit Singh Braich, Defendant

BEFORE: Mr. Justice M.M. Rahman

COUNSEL: Ashley Harripersad (student-at-law), for the plaintiffs/responding parties Anders Hoenisch, for the defendant/moving party

HEARD: August 31, 2023

Endorsement

Introduction

[1] This motion is about an examination for discovery gone wrong.

[2] The plaintiff, Paramjit Braich, was being examined for discovery on August 25, 2022. Not long into the examination, counsel for the defendant (not Mr. Hoenisch) asked the plaintiff if she had hurt her wrist in 2015. Plaintiff’s counsel interjected and explained that the plaintiff was objecting to answering questions about her medical history for more than three years before the accident, unless there was reference to it in medical records as an ongoing issue. This was the first and only refusal of the day. Defendant’s counsel then said that he would adjourn the discovery unless plaintiff’s counsel changed her mind. Things escalated. Plaintiff’s counsel tried to explain that she was not making a blanket refusal. Counsel began talking over each other as plaintiff’s counsel tried to explain her position. Defendant’s counsel said he would adjourn the examination and that he would bring this motion. They talked over each other some more. Defendant’s counsel was posturing more than listening. Then he left. Twenty-two minutes after asking his first question.

[3] The defendant brings this motion to compel the plaintiff to answer questions that plaintiff’s counsel objected to. The defendant relies on Rule 34.14 of the Rules of Civil Procedure, RRO 1990, Reg 194. That rule allows a lawyer to adjourn the examination where continuing with it would be futile because of improper objections or interruptions, or where the person being examined is being evasive, non-responsive, or verbose. The defendant contends that the questions were relevant and that not being permitted to ask the questions about the plaintiff’s medical history disrupted the “flow” of counsel’s cross-examination.

[4] The plaintiff opposes the motion. The plaintiff argues that the defendant improperly adjourned the motion. The plaintiff says that she had a legitimate objection to the question, and that the examination could have continued with the refusal being dealt with at a later time. The plaintiff also argues that the court should find that the questions about the plaintiff’s medical history that she refused to answer were not relevant and that she should not be compelled to answer them.

[5] The motion is dismissed. The defendant improperly adjourned the examination. The circumstances here do not support reliance on Rule 34.14. That rule requires conduct that would render the examination futile. That is not what happened here. Defendant’s counsel should have continued the discovery and brought his motion later. I decline to rule on the propriety of the question or area of questioning. The examination for discovery shall continue where it left off and if the plaintiff maintains her objection, the defendant can bring a motion after the discovery is completed.

Background

[6] Normally, I would not include many details about the proceedings in an endorsement on a straightforward motion like this one. But the details here are important to understand why I have reached the conclusion that I have. The details are also important to remind counsel that the way they behave inside a boardroom might make its way before a judge. And the judge might see things very differently than they do.

[7] The plaintiff’s lawsuit arises out of a car accident that happened in July 2019. The plaintiff claims that she sustained injuries that required her to stop working. She also claims that she can no longer do various household activities in the same manner as she could before the accident. The plaintiff claims that her injuries will require medical and rehabilitative treatment and will require her to incur ongoing healthcare expenses. She is suing the defendant for $1,000,000 in damages, plus interest, and costs.

[8] As mentioned above, the plaintiff’s examination for discovery was held on August 25, 2022. Present in person were defendant’s counsel, Hugh Brown and plaintiff’s counsel Anindita Asaduzzaman. Michael Canning, counsel for an insurer defendant in a related file, in which the plaintiff is suing for long term benefits, appeared virtually. This was a global examination for discovery on both files. Mr. Canning was planning to examine the plaintiff when Mr. Brown was finished.

[9] The transcript begins at 10:08 am. The first 50 questions were mainly about the plaintiff’s family, how old her children were, and who she lived with. After some questions about what type of household work she did, Mr. Brown moved on to ask details about the accident. It was during this questioning that the first signs of trouble revealed themselves.

[10] Mr. Brown asked the plaintiff whether she was wearing her seat belt. In asking this question he referred to medical records. When Ms Asaduzzaman interjected to ask which medical records Mr. Brown was referring to, he ignored her and moved on to his next question.

Q. The medical records I've received from your lawyer say you weren't wearing your seat belt. Is that right?

A. Yes

MS. ASADUZZAMAN: Which record? Which record is that?

BY MR. BROWN:

Q. Why weren't you wearing your seat belt?

A. I don't know.

[11] Had this been the only instance of Mr. Brown not listening to Ms Asaduzzaman, it would be easy to overlook. But this set the tone for what was to come.

[12] Mr. Brown’s questioning moved on to the plaintiff’s employment. After asking some questions about her job, Mr. Brown asked the plaintiff if she had hurt her wrist in the past. Ms Asaduzzaman interjected to ask which incident Mr. Brown was referring to. It was at this point that things started to go downhill.

Q. Did I read somewhere that you hurt your hand or wrist before this car accident in a cart accident?

MS. ASADUZZAMAN: Counsel –

MR. BROWN: Were you pushing a cart?

MS. ASADUZZAMAN: -- which incident are you referring to?

MR. BROWN: I just said before the accident.

[13] Mr. Brown continued asking questions on this point. Ms Asaduzzaman then interjected again. She objected to the question and explained her position that she was objecting to “medical questions” going back further than three years before the accident. She qualified her objection by saying “unless you can find a reference to it.” The record reflects that this was the first refusal.

Q. Do you remember hurting your wrist in a cart accident?

A. (No verbal response)

Q. No? Did you hurt your wrist in 2015 or not?

A. Cart accident that was -- that time I was working on the floor. So, the lady was coming ---

MS. ASADUZZAMAN: Counsel -- sorry, stop. Counsel, we're only going to allow medical questions from 2016 July onwards, so three years pre-accident, unless you can find a reference to it.

--- REFUSAL NO. 1

[14] Mr. Brown did not take this objection well. It was at this point, after question 129, that he decided he would adjourn the examination.

MR. BROWN: What did you just say?

MS. ASADUZZAMAN: We're only going to allow three years pre-accident in terms of the health history.

MR. BROWN: I'm going to adjourn my discovery and bring a motion on that. I can't conduct a discovery where you're going to limit her medical history to just three years.

[15] Ms Asaduzzaman tried to explain that her position was that she would object unless Mr. Brown could tie his queston to a reference in a medical record showing it was an ongoing issue. Mr. Brown was not having it. He interrupted her and told her unless she changed her position he was adjourning. Things continued to spiral downwards.

MS. ASADUZZAMAN: If you can find it in recent records, and it's, like, a -- it's an ongoing issue ---

MR. BROWN: Thank you. Unless you change your mind right now –

MS. ASADUZZAMAN: I know ---

MR. BROWN: -- we're going to have to adjourn.

MS. ASADUZZAMAN: That's fine ---

MR. BROWN: I can't –

MS. ASADUZZAMAN: That's not proper.

MR. BROWN: -- deal with Discovery ---

MS. ASADUZZAMAN: You can't just get up and leave. Maybe you did not intend to do the Discovery today, then.

MR. BROWN: I'm here.

MS. ASADUZZAMAN: This is extremely ---

MR. BROWN: I gave you the surveillance.

MS. ASADUZZAMAN: This is not the way to go about a Discovery, right?

[16] Mr. Brown continued to ask Ms Asaduzzaman if she was changing her mind. It appears that he got up to leave but continued the exchange, asking Ms Asaduzzaman if she had changed her mind. They continued to argue the point. Mr. Brown repeated himself and Ms Asaduzzaman repeated her objection. Ms Asaduzzaman suggested that they go off the record and discuss it because she did not consider Mr. Brown’s behaviour to be proper. Mr. Brown simply told her that he would bring a motion.

MR. BROWN: I'll ask you again, then. Will you allow her to answer questions about her medical history before three years before her accident?

MS. ASADUZZAMAN: No, I'm going to limit to three years unless you can point it in the medical records and it is within three years and it's an ongoing issue, then sure you can ask her.

MR. BROWN: Do you have her medical records?

MS. ASADUZZAMAN: Of course I do.

MR. BROWN: Right, then I'll -- I've asked a question about her right wrist, an injury in 2015. Are you refusing that or not?

MS. ASADUZZAMAN: You can ask her ---

THE DEPONENT: That was not wrist actually. That was my thumb.

MS. ASADUZZAMAN: No, sorry, are we still on the record?

MR. BROWN: Yes, we better be.

MS. ASADUZZAMAN: You're getting up and about to leave, right? This is not ---

MR. BROWN: Are you changing your mind?

MS. ASADUZZAMAN: No, I'm not.

MR. BROWN: All right. Thank you.

MS. ASADUZZAMAN: Can we go off the record –

MR. BROWN: Thank you.

MS. ASADUZZAMAN: -- and then we can discuss. Because I think this is not proper.

MR. BROWN: I know it isn't. That's why I'm going to bring a motion.

MS. ASADUZZAMAN: Your actions are not proper.

MR. BROWN: I'm going to bring a motion.

MS. ASADUZZAMAN: No, I'm saying if you can find in the three years, if it's an ongoing issue, then you can ask her about it. But from ---

MR. BROWN: On that refusal, I still object to proceeding on that basis.

MS. ASADUZZAMAN: No, I'm not going to allow you to ask her.

MR. BROWN: I know, that's why there's no point in proceeding.

[17] The exchange continued with both lawyers apparently talking over one another. Ms Asaduzzaman questioned whether Mr. Brown actually wanted to be there, and said he was not acting professionally. Mr. Brown then tried to make clear that he could not proceed with the limitation that Ms Asaduzzaman was placing on his questioning.

MS. ASADUZZAMAN: Maybe you didn't want to do a Discovery today in the –

MR. BROWN: Of course I'm here to do it.

MS. ASADUZZAMAN: -- maybe, you have other –

MR. BROWN: I came in person to do this.

MS. ASADUZZAMAN: I don't think this is professional at all.

MR. BROWN: I came in person here.

MS. ASADUZZAMAN: I know you've been doing this for some time, right? And this is not professional. It's not the way to go about it, to just get up and leave. I don't want ---

MR. BROWN: Why do you want me to sit here and not ask any questions? There's no point in sitting here doing nothing.

MS. ASADUZZAMAN: I did not say any questions, right?

MR. BROWN: I cannot do a Discovery when you limit it in this way.

MS. ASADUZZAMAN: I'm not ---

MR. BROWN: I'll have to give ---

MS. ASADUZZAMAN: It's not a blanket refusal.

MR. BROWN: Hang on, one person at a time. –

MS. ASADUZZAMAN: It's not a blanket refusal.

MR. BROWN: My turn.

MS. ASADUZZAMAN: Okay.

MR. BROWN: So the record is clear, I cannot proceed with the Discovery with the limitation that you have just created.

MS. ASADUZZAMAN: No, but ---

MR. BROWN: I think it's improper. I'm going to get an order and a ---

MS. ASADUZZAMAN: You're just ---

MR. BROWN: Hang on, one at a time again.

MS. ASADUZZAMAN: Yes.

MR. BROWN: I'll get a direction.

MS. ASADUZZAMAN: Yes.

MR. BROWN: We'll see who's right. If I'm allowed to ask questions about this ---

MS. ASADUZZAMAN: You're not allowing me to explain what my position is.

MR. BROWN: Again, one at a time, please.

MS. ASADUZZAMAN: Yes.

MR. BROWN: I won't call you unprofessional. The record will speak for itself in that regard.

[18] Mr. Brown then explained why the limitation on his cross-examination was a problem for him.

MR. BROWN: I cannot proceed with the limitation that you just created. I cannot continue to ask questions in the dark. I need a flow to my discovery. I need to ask questions based on answers given. You've now limited it to questions that related only to three accidents -- three years before the accident. I believe that’s improper. I’ll get a direction.

MS. ASADUZZAMAN: That's not what I did ---

MR. BROWN: Again, one at a time, please.

MS. ASADUZZAMAN: You're not letting me speak ---

MR. BROWN: Again, one at a time. You can when I finish. I have to state why I'm leaving because I'm not going to sit here and do nothing. I came in person to do this. I'm not going to continue given the limitation you just created. So, that's it. Thank you. I'll order this part of the transcript, please. Thank you.

MS. ASADUZZAMAN: Will you allow me to speak now? You did not want me to speak ---

MR. BROWN: Absolutely. Say whatever you like.

MS. ASADUZZAMAN: You're going to leave right, so you're not even going to hear my position.

MR. BROWN: Say whatever you like.

MS. ASADUZZAMAN: You know, I'm appalled by your behaviour ---

MR. BROWN: Here I am, speak.

MS. ASADUZZAMAN: (inaudible) long time. And it's -- so, I'd like to say it's not a blanket refusal. If you would like to, you know, pinpoint

[19] After this, Ms Asaduzzaman put her position on the record again explaining that she was not making a blanket refusal and that she was only objecting to questions about medical conditions that did not present an ongoing concern. Mr. Brown stayed to hear the explanation, said thank you, and then left.

Analysis

[20] A motion relying on Rule 34.14 “should only be necessary when counsel for the party being examined has refused all requests to conduct him or herself in accordance with the rules and interference has become so extreme as to render the discovery futile” and to require the court’s intervention: Iroquois Falls Power Corp. v. Jacobs Canada Inc., (2006), 83 O.R. (3d) 438 (ON SC), at para 43; Kay v. Posluns (1989), 71 O.R. (2d) 238; [1989] O.J. No. 1914 at para. 25. [1] A mere disagreement between counsel is not enough to terminate a discovery: Skourtis v. The City of Toronto, 2021 ONSC 774, at para. 9. When an objection is taken, counsel should not engage in argument on the record about the objection. Rather, examining counsel may have resort to Rule 34.12(3): Kay, at para. 24.

[21] Permitting a party to adjourn a discovery at the first refusal, as defendant’s counsel did here, would make the discovery process unwieldy. Rule 34.14 does not and should not permit adjournments based on the subjective feelings of counsel who feel that their “flow” is being affected. This court recognized the problems that can ensue when the rule is used too quickly in Kay, at para. 25.

To achieve a proper discovery there must be a spirit of co-operation between counsel. They can protect their respective clients while still conducting a proper discovery. The difficulties arise where they are not in agreement as to the issues or relevancy of matters thereto. Rule 34.14 provides for an adjournment to seek directions for the specific purposes therein set out. Otherwise, examinations should be continued to their conclusion. There may be necessary adjournments by consent for the convenience of counsel or for other reasons. [Emphasis added]

[22] This is not a case where the discovery was rendered futile. Ms Asaduzzaman followed the Rules. She had an objection and put it on the record. There was nothing stopping Mr. Brown from continuing with his discovery and bringing a motion under Rule 34.12(3) at another point. He was at the beginning of his examination. This could not have been his last area of his examination. Nor did he say it was the last area of examination in the affidavit he filed on this motion. [2] Indeed, in answer to a question from the court about whether this area would have been the last one Mr. Brown planned to explore, Mr. Hoesnisch candidly acknowledged that there would likely be other areas apart from the pre-2016 medical records that Mr. Brown would have examined the plaintiff about.

[23] Moreover, this is not a case where Mr. Brown made a poor decision in the moment and then decided to remedy it by having a discussion with counsel. He followed through on his promise to bring a motion. That was clearly his litigation strategy. And it was an improper one. Mr. Brown’s reliance on Rule 34.14 was and is an abuse of that rule. And with almost 40 years at the bar, [3] he should have known that.

[24] Mr. Brown’s conduct was not acceptable. It appears to have been an attempt by a senior lawyer to bully a junior lawyer. [4] This is unfortunately a common occurrence in the practice of law. It should not happen. When it does happen, counsel who decide to conduct themselves that way should understand that their behaviour will be called out. Senior members of the bar should serve as examples to their junior counterparts. They should not use their seniority to try and gain a tactical advantage. It is ironic that Mr. Brown said that he would not call Ms Asaduzzaman unprofessional, as the record would speak for itself in that regard. This demonstrates that Mr. Brown not only thought he had done nothing wrong, but actually believed he was the one being wronged. Again, someone with almost 40 years at the bar should have known that shutting down an examination, after one objection and 20 minutes after it started, was not normal. A further irony is that it was Ms Asaduzzaman, the more junior lawyer, who suggested resolving the issue civilly by having an off-record discussion. Mr. Brown would have been well advised to take his friend’s advice. Instead, he insisted that if she would not play by his rules, he would take his ball and go home. His attitude and conduct were inconsistent with the spirit of co-operation recommended by this court in Kay.

[25] Both parties made submissions about whether the objection was well-founded and whether the plaintiff should be required to answer the question. I decline to rule on the relevance of the question or this area of examination. The objection may or may not have been well-founded. Questions about pre-accident medical issues are often explored at discovery, and whether an area of questioning is relevant will depend on the circumstances of the case. But this motion never should have been brought. This court’s intervention was not required. The examination should have continued.

[26] The defendant adjourned the examination to get a direction. This is the court’s direction. The examination shall resume where it left off. Before resuming, counsel may discuss whether the plaintiff will be maintaining this objection. If so, the refusal remains on the record and there is no need to repeat it. If not, counsel may explain on the record what agreement has been reached. Since I have not ruled on the propriety of the question, the defendant may still challenge the basis for the objection at the appropriate time if the plaintiff maintains it.

Costs

[27] Rule 34.14(2)(b) allows a court to award costs personally against a person who improperly adjourns an examination. In addition to costs of the motion, the court may also award “any costs thrown away and costs of any continuation of the examination.” The defendant relied on this rule in his notice of motion in asking for costs. The plaintiff did not, and simply requested costs “of responding to this motion” on a substantial indemnity basis. [5] Had the plaintiff relied on this rule, I would have considered a costs award under it. However, since the plaintiff asks only for costs of the motion, I consider that request only. I should note that if the examination is improperly adjourned again, the court may invoke this rule to award costs personally against the party who instigates the adjournment.

[28] The plaintiff argues that she is entitled to substantial indemnity costs because of Mr. Brown’s improper conduct. The defendant argues that substantial indemnity costs are not warranted because, even if the discovery was improperly adjourned, that conduct does not rise to the kind of conduct that would justify an elevated costs award.

[29] Although Mr. Brown’s behaviour was unacceptable, I agree with Mr. Hoenisch that it does not involve misconduct that would justify substantial indemnity costs. An elevated costs award should be “rare and exceptional” and is only warranted “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Krieser v. Garber, 2020 ONCA 699, at para. 137 citing Young v. Young, [1993] 4 S.C.R. 3, at p. 134. This motion did involve an improper use of Rule 34.14. And as I have explained above, the circumstances leading to it are troubling. Though it is close to the line, I cannot say that the conduct here was “reprehensible, scandalous, or outrageous” as those terms have been considered in the caselaw on costs. The plaintiff is entitled to costs on a partial indemnity basis in the amount of $3,500 inclusive.

Order

[30] The motion is dismissed. The defendant shall pay costs to the plaintiff on a partial indemnity basis in the amount of $3,500 inclusive. Costs are payable forthwith.

Rahman, J.

Date: September 6, 2023

[1] All pinpoint references to Kay will be to the paragraph numbers set out in the electronic version at , [1989] O.J. No. 1914.

[2] Interestingly, in his affidavit, Mr. Brown does not actually say that it would have been impossible for him to complete the examination. Rather, he simple deposes that he needed to be able to ask the plaintiff about the area in question before proceeding to trial.

[3] Ms Asaduzzaman deposes in her affidavit that Mr. Brown was called to the bar in 1984.

[4] Ms Harripersad told the court that Ms Asaduzzaman has been called to the bar for about five years.

[5] Ms Asaduzzaman’s affidavit simply asks for “a direction” that Mr. Brown conduct is captured by Rule 34.14(2)(b).