Court File and Parties

COURT FILE NO.: CV-21-83 DATE: October 13, 2023 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DR. JAMES CHIRICO, MEDICAL OFFICER OF HEALTH FOR THE NORTH BAY PARRY SOUND DISTRICT HEALTH UNIT, Applicant/Responding Party

AND:

ALEXANDRA STEWART and 803693 ONTARIO LTD. c/b/a/ STEWART’S DECORATING, Defendants/Moving Parties

BEFORE: Justice J.S. Richard

COUNSEL: Bradley Jackson, for the Applicants/Responding Party Antoine D’ailly, for the Defendants/Moving Parties

HEARD: September 15, 2023

Endorsement

Application

[1] During the COVID-19 pandemic, Alexandra Stewart was charged under the Provincial Offences Act for alleged violations of public health measures imposed by the provincial government. Some of these charges remain outstanding. These charges, obviously, are before a different court, and are not the subject of this motion, or the application within which it was brought.

[2] At the time of the pandemic, provincial rules and regulations gave the Chief Medical Officer of Health of Ontario the ability to make orders under s.22 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7. For example, such orders could require individuals to wear masks and maintain a physical distance from others, force businesses to cease or modify operations, and so on. This power was delegated to local health units by way of their medical officers of health.

[3] On April 17, 2021, such an order was made against “Alexandra Stewart o/a Stewart’s Decorating” (the “S.22 Order”), on the alleged basis that public health inspectors had observed or had been advised that, “on numerous occasions,” her business was “continuing to permit patrons to enter into the interior of the Business, unmasked, and without restrictions.” The S.22 Order required her to “cease immediately all operations of the Business related to the sale of goods and service to patrons, with the exception of providing goods by mail or other forms of delivery or providing services online, by telephone or by other remote means”, as well as to comply with other public measures that were put in place.

[4] On May 20, 2021, in attempting to enforce compliance of this S.22 Order, the Applicant, Dr. James Chirico, Medical Officer Of Health For The North Bay Parry Sound District Health Unit (the “Health Unit”) commenced an application, and brought an ex parte motion for a restraining order forcing Ms. Stewart to cease or modify the operations of her business, Stewart’s Decorating. The ex parte motion was supported by two affidavits sworn on May 14, 2021: one by public health inspector Rohan Makdani, and the other by public health inspector Allison Boule. The restraining order was granted ex parte on May 21, 2021.

[5] The restraining order was vacated on consent on June 11, 2021. During the hearing of this current motion, counsel each recounted different versions as to how this came about, but the certified court transcripts of the June 10, 2021 and June 11, 2021 hearings produced in the Respondents’ Amended Motion Record clearly explain, at pages 201 and 202, that provincial regulations were being relaxed thereby rendering a stay of the S.22 Order permanent, or “moot”. For reasons of practically, the court and counsel discussed, on the record, that given the context of the changes in rules and regulations, vacating it made the most sense.

[6] With the May 21, 2021 restraining order, being the sole raison d’être of the Health Unit’s application, now vacated, as discussed by RSJ Ellies in his endorsement of June 14, 2021, from that point on, this application only had two outstanding issues before the court: (1) damages for economic injury allegedly sustained by the Respondents, Ms. Stewart and her business, as a result of the S.22 Order, and (2) costs related the application.

[7] In that same endorsement, RSJ Ellies then essentially provides a roadmap to the Respondents of the issues they raised in their oral submissions:

To advance these arguments, the respondents will be required to deliver affidavit evidence. It is possible that the applicant will want to reply. Cross-examinations may be necessary. Factums will be required, and a hearing will ultimately be held. Indeed, it may be necessary to have the matter proceed to trial if there are issues of credibility that cannot be resolved on a paper record (Rules of Civil Procedure, r.38.10(1)(b)). Counsel for the respondent assures me that their client is aware of the potential cost consequences of proceeding this way.

[8] Excluding of course the evidence filed in support of this motion currently before the court, Ms. Stewart and her business have yet to file any affidavits or evidence of any kind in response to the Health Unit’s application of May 2021 (the “Application”).

[9] When the Health Unit commenced the Application, it filed the two affidavits of the public health inspectors dated May 14, 2021. No other evidence has been filed since.

This short motion

[10] On Friday, May 5, 2023, the Respondents served Notices of Examination to cross-examine the Health Unit’s two affiants on May 26, 2023.

[11] On Tuesday, May 9, 2023, they served a Notice of Motion for this current motion, which asks the court to compel the cross-examination of the Health Unit’s two affiants. The relief sought is as follows:

a. An order granting leave for the Respondents to cross-examine Rohan Makdani forthwith on her affidavit sworn May 14, 2021;

b. An order granting leave for the Respondents to cross-examine Allison Boule forthwith on her Affidavit sworn May 14, 2021; and

c. An order granting leave for the Respondents to file further affidavit evidence at such later time as counsel for the Respondents may request, and this honourable court may permit.

[12] In support of their motion, the Respondents filed the affidavit of Heather Cole, legal assistant to their counsel, Antoine D’ailly, sworn May 8, 2023. This affidavit, moreover, attaches the following exhibits:

a. Section 22 Order of April 16, 2021;

b. Redacted case conference memo dated April 30, 2021;

c. Restraining Order dated May 21, 2021;

d. Certified copies of court documents re: criminal charges;

e. Certified copy of court documents re: Failing to comply;

f. Certified copy of court documents re: failing to comply;

g. Remaining provincial offences violations;

h. Affidavit of Rohan Makdani, dated May 14, 2021;

i. Affidavit of Allison Boule, sworn May 14, 2021;

j. Endorsement of Regional Senior Justice M.G. Ellies, dated June 14, 2021.

[13] The Respondents also filed a supplementary affidavit of Heather Cole dated July 5, 2023. This one attaches as exhibits:

a. A request for information pursuant to the Municipal Freedom of Information and Protection of Privacy Act dated April 22, 2022;

b. Correspondence responding to the above request dated May 17, 2022 and June 20, 2023;

c. Copies of the Notice of Examination served on the Applicants on May 5, 2023;

d. Copies of a Notice of Motion issued by the Crown on the charges, dated June 23, 2023.

[14] The Health Unit does not oppose having its affiants cross-examined. It takes the position, however, that unless, and until, the Respondents file their affidavits in response to this Application, then they do not have a right to cross-examine.

[15] For this motion, it relies on the affidavit of public health inspector Rohan Makdani, sworn July 5, 2023, to which the following exhibits are attached:

a. Certificate of Offence of February 17, 2021;

b. Information and Summons dated March 8, 2021;

c. Information and Summons (different offence) dated March 8, 2021;

d. Information and Summons dated April 16, 2021;

e. S. 22 Order dated April 16, 2021;

f. Information and Summons dated April 28, 2021;

g. Information and Summons dated May 20, 2021; and

h. Information and Summons (different offence) dated May 20, 2021.

Analysis

[16] Contrary to actions, applications are not subject to examinations for discovery, nor do they have the benefit of having parties exchange affidavits of documents as part of that process. Instead, they are governed by Rules 38 and 39 of the Rules of Civil Procedure.

[17] Specifically, Rule 39 states that evidence on applications is to be put before the court by way of affidavit “unless a statute or these rules provide otherwise” (39.01(1)). Rule 39.02 then goes on to permit the cross-examination of affiants on the following conditions:

39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application. (…)

39.02 (2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination (…) without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit. (…) [Emphasis added]

[18] In theory, this motion brought by the Respondents is premature. The Health Unity does not oppose the relief they seek: that they be permitted to cross-examine the Health Unit’s affiants. Pursuant to Rule 39.02(1), a court order is therefore not required to allow these cross-examinations to take place. Once these cross-examinations would take place, then it would be up to the Respondents to seek leave to file affidavit evidence, on which they wish to rely on in asking the court to award them damages and costs, if they so choose. The Respondents, however, already admit that they intend on introducing affidavit evidence. Thus, they are essentially asking for an exemption to rule 39.02(1) that would permit them to cross-examine in advance of producing their evidence. Practically speaking, then, they are seeking an advance ruling on rule 39.02(2).

[19] The purpose of rule 39.02 was reaffirmed and explained in 1013952 Ontario Inc. (Silverado Restaurant and Nightclub) v. Sakinofsky, 2009 ONSC 55279:

9 The purpose of Rule 39.02 (2) is to require parties to identify all issues in their affidavits before cross-examination takes place. This is a principle of fundamental fairness: that an opposing party must know the case to be answered and have an opportunity to meet it. When a party fails to identify all issues at the outset, and tries to add evidence after cross-examination, he splits his case. In so doing, he may attempt to discredit the witness after cross-examination, when the witness has no means of responding.

10 At par. 8 of Brock Home Improvement Products Inc. v. Corcoran, [2002] O.J. No. 931, 2002 ONSC 49425, Mr. Justice Stinson observed that Rules 39.02 (1) and (2):

"... are designed to place finite limits on the evidentiary element of those proceedings, an element that is all too frequently time-consuming, expensive and drawn out...."

11 At par. 9 of Brock Home Improvement Products, Stinson J. held that the onus is on the party seeking leave to file an affidavit after cross-examination to explain why it failed to include the proposed additional evidence in its case before cross-examination. He added that if there is not a reasonable explanation, leave should be refused. I agree with this approach. [Emphasis added]

[20] Additionally, policy considerations underlying rule 39.02 were summarized and affirmed in Sure Track v. Kaisersingh, 2011 ONSC 7388:

30 (…)

Rule 39.02(1) and (2) are an important and integral part of the procedural code governing the conduct of motions and applications. These rules are designed to place finite limits on the evidentiary element of those proceedings, an element that is all too frequently time-consuming, expensive and drawn-out. These rules oblige the parties to consider the issues and to put all relevant evidence forward before embarking upon cross-examination of the opposite party's witnesses. This is the approach mandated by the rules to achieve the "just, most expeditious and least expensive determination" of motions and applications. Consistent with that approach, it is only in exceptional cases that resort should be had to rule 39.02(2).

I believe that the words "ought to be permitted to respond" found in rule 39.02(2) impose a burden on a party who seeks leave to show more than an absence of non-compensable prejudice to the opposite party. In my view, those words import a requirement for the party who seeks leave under rule 39.02(2) to provide, by way of evidence on the motion for leave, a satisfactory explanation for its failure to include the proposed additional evidence as part of its pre-cross-examination case. The court should scrutinize carefully the reasons for the omission and the evidence offered in support of that explanation. To approach the issue otherwise undermines the integrity of the evidentiary framework for motions and applications that is mandated by the rules. Absent some reasonable explanation for the original omission, leave should be refused. [Emphasis added]

[21] For the court to rely on its discretion to allow the cross-examinations before the Respondents file their evidence, thereby granting advance leave for the filing of their affidavits pursuant to rule 39.02(2), the Respondents must show not only that such a ruling will not impose a non-compensable prejudice on the Health Unit, they must also show that doing so will not violate the principle of fundamental fairness, that they have a reasonable explanation for refusing to file their evidence before cross-examinations, and that their case is exceptional.

[22] If this court is to grant advance leave under rule 39.02(2), then it can only do so if the Respondents meet the test for leave. This test, moreover, is set out in 2462192 Ontario Ltd. v. Paramount Franchise Group Inc., 2019 ONSC 593:

29 Keeping in mind that a flexible and contextual approach must be taken, respecting Rule 1.04 which provides that the Rules of Civil Procedure ought to be interpreted liberally so as to achieve justice and a timely resolution of disputes and so as not to punish litigants for the oversights of their counsel, this Court should ask itself the following four questions:

(i) is the proposed evidence relevant;

(ii) does the proposed evidence respond to something raised during cross-examination(s), regardless of whether it had been raised beforehand;

(iii) would leave result in non-compensable prejudice (something that cannot be addressed through costs, terms and/or an adjournment of the underlying motion); and

(iv) does the moving party seeking leave have a reasonable or adequate explanation for not delivering the proposed evidence at the outset?

[23] Will the proposed evidence be relevant? Thus far, Respondents have put nothing forward, other than to mention in oral argument during the hearings of June 10, 2021 and June 11, 2021, and in submissions within this motion, relating to a claim that they are seeking damages. Neither the submissions, nor the affidavits of Heather Cole on which they rely in support of this motion, address the relevance of the Respondents’ future affidavit evidence. Will the proposed evidence respond to something raised during cross-examinations? That is of course, at this stage, impossible to answer.

[24] We are therefore left to assume, based on short comments made during the hearings of June 10, 2021 and June 11, 2021, as was captured in RSJ Ellies’ endorsement of June 14, 2021, that this questioning will have something to do with the allegation that the S.22 Order was invalid, improper or flawed. Thus, the Respondents are essentially asking this court to give them carte blanche on the scope and relevance of their future affidavit evidence.

[25] Would leave result in non-compensable prejudice to the Applicants? While the Respondents ignored this question also, the Health Unit argued that leave would absolutely result in non-compensable prejudice. Specifically, it argued that leave would set the Health Unit at a significant fundamental disadvantage through being subjected to cross-examinations without having any knowledge or understanding of what the case Ms. Stewart and the corporate Respondent are intending to mount against it, and what precise issues the Respondents intend to define. I agree, especially given the fact that advance leave would give them carte blanche on scope and relevance.

[26] In addition, as was argued by the Health Unit, allowing the Respondents to skip the important step of producing affidavit evidence would not only result in excessive and unnecessary costs in holding multiple cross-examinations, possibly even requiring the Health Unit to later have to cross-examine adverse affiants, and then potentially having to file additional affidavits, it would cause excessive delays and inefficiencies in the proceedings, which run contrary to the very core of Rule 39.02(2)’s purpose.

[27] The Applicant is unaware of the case the Respondents are now planning on making against them. For reasons mentioned in the above-cited caselaw, this is a violation of fundamental fairness.

[28] The crux of the Respondents’ argument as to why the court should dispense the requirement to deliver affidavit evidence prior to the cross-examinations is founded in Ms. Stewart’s right to silence in her ongoing quasi-criminal proceedings. Her refusal to depose her evidence at this time is explained in her desire to protect her right to silence. Not guarding her right to silence, the argument continues, could result in non-compensable prejudice to both Respondents.

[29] While Ms. Stewart may be entitled to a right to silence in her Provincial Offences Act (“POA”) proceedings, this right, within the context of these civil proceedings in which she is now making a claim for damages, must still satisfy the court that it is an adequate and reasonable explanation for allowing to proceed to cross-examinations without first deposing any evidence. In other words, the fourth question of the Rule 39.02(2) test must still be answered: Does Ms. Stewart and the corporate Respondent have a reasonable or adequate explanation for not delivering the proposed evidence at the outset, as required by the Rules?

[30] The right not to self-incriminate has been recognized as fundamental, and as the “single most important organizing principle in criminal law” (R. v. Henry, 2005 SCC 609, [2005] 3 S.C.R. 609). There is no doubt that Ms. Stewart benefits from this right in her POA proceedings, but no arguments, caselaw or evidence were put forward on behalf of the corporate Respondent arguing that it too benefits from the same right. Notwithstanding the lack of discussion on this important point, even if it does, in the context of these circumstances, I find that the right to silence protecting Ms. Stewart, and potentially the corporate Respondent given that Ms. Stewart is the likely affiant representing her corporation, does not outweigh the prejudice that would be suffered by the Applicant, and does not justify a disregard the policy considerations underlying rule 39.02(2), or warrant the dismissal of its core purpose.

[31] I agree with the Respondents that Ms. Stewart’s right to silence could be jeopardized if she files her own affidavit in these proceedings, since evidence in applications are not afforded the same protections as in actions, where evidence obtained through the discovery process can generally not be used in other proceedings. I disagree, however, that waiting until the POA proceedings are complete to introduce evidence would put them at a bigger disadvantage as memories fade with time. As pointed out in the Health Unit’s submissions, copious amounts of notes and records directly related to the investigations and observations of both public health inspectors have been delivered to Ms. Stewart, as part of the POA disclosure process, so the concern for the preservation of evidence for the Respondents hold little weight. In fact, it is the Health Unit who stands to be most prejudiced by the passage of time if the Respondents are at liberty to “remain silent” and adduce no affidavit evidence that can be cross-examined until all appeals and outlets inherent to the POA proceedings have been exhausted. Yet, the Applicant still does not wish to consent, and it has every right not to.

[32] In the Application, the onus will be on the Respondents to prove their claims for damages and costs. If they are unable to prove their case without filing affidavits, in actualizing their right to silence, then they will have to wait to prove their case after the POA proceedings are complete in any event. If they are able to prove their case without filing affidavits, then this motion is unnecessary. The fact remains that, for all of the above reasons, hanging their hat on the right to silence would split the case, and is clearly a tactical strategy, which does not constitute a reasonable or adequate explanation to circumvent rule 39.02(1).

Conclusion

[33] Ms. Stewart and her business, Stewart’s Decorating, seek an order allowing them to cross-examine, forthwith, Rohan Makdani and Allison Boule on each of their affidavits sworn May 14, 2021. An order is not actually required for them to exercise this right, however. There is no requirement on the Respondents to file any affidavit evidence at all in response to the Health Unit’s Application. With that said, obviously, if they wish to prove their claim for damages and costs, then they may wish to do so. Accordingly, what they are actually asking for is an advance Rule 39.02(2) ruling allowing them to file their affidavit evidence after they have conducted these cross-examinations. In making this request to the court on this motion, they bear the burden of satisfying the court that leave should be granted.

[34] The Respondents instead chose to focus their argument on their right to cross-examine, in spite of the fact that this right was never opposed, or even in question. Despite the plethora of cases and materials the Respondents filed for this motion, they did not satisfactorily answer actual question before the court: is their case exceptional such that it merits the use of the court’s discretion to trump rule 39.02(1)? Not only does the caselaw on which they relied mostly support the Applicant’s position on this question, it is clear that their case is not exceptional. What is also clear is that the prejudice on the Respondents in choosing to exercise the right to silence for the duration of the POA proceedings, and potentially staying this Application, will not outweigh the prejudice that leave would cause to the Applicant’s right to fundamental fairness.

[35] This motion is therefore dismissed with costs.

[36] The Applicant is invited to serve and file a bill of costs within 14 days of these reasons being released, with no more than one page of written submissions on costs if it deems necessary to do so. If the Respondents disagree with the Applicant’s proposed costs amount, they may serve and file written cost submissions, which shall not exceed more than one page, no later than 14 days after being served with the Applicant’s bill of costs.

Justice J Richard Date: October 13, 2023