Court File and Parties
Court File No.: CV-22-00089751-0000 Date: 2023/10/31 Ontario Superior Court of Justice
Between: IRON FORT CONSTRUCTION & RENOVATION INC. and NAOUFEL ECHAOUNI Plaintiffs/Defendants by Counterclaim And: GER-MOR INVESTMENTS INC., JOHN TILTINS and SILVANA EHRENFELD Defendants/Plaintiffs by Counterclaim
Counsel: Shawn J. O’Connor, Lawyer for the Plaintiffs/Defendants by Counterclaim Miller Thomson, Riccardo Del Vecchio, Paul Guaragna, Lawyers for the Defendants/Plaintiffs by Counterclaim
Heard: October 18, 2023
Endorsement
Williams J.
[1] The defendants’ motion is in the context of a plaintiffs’ motion for a certificate of pending litigation.
[2] The defendants seek leave to deliver two supplementary affidavits.
[3] Leave under Rule 39.02(2) of the Rules of Civil Procedure is required because cross-examinations on affidavits have already taken place and the plaintiffs do not consent.
The June 16, 2023 affidavit of John Tiltins
[4] The June 16th affidavit is brief. It refers to and attaches as an exhibit an excerpt from a bank statement that shows that Mr. Tiltins made a payment of $343,378.46 on December 18, 2017. In the affidavit, Mr. Tiltins says the funds were used to close the purchase of the disputed property. The affidavit also attaches as an exhibit a corporate profile of the corporate defendant. The defendants’ counsel sent a copy of the exhibits to the affidavit to the plaintiffs’ counsel the day before the cross-examinations. The plaintiffs’ counsel did not cross-examine Mr. Tiltins on the documents. The defendants’ counsel asked the plaintiffs’ witness, Naoufel Echaouni, about the bank statement. Mr. Echaouni was unable to identify it. The defendants’ counsel asked to have the statement marked as an exhibit. The plaintiffs’ counsel objected and told the defendants’ counsel he should bring a motion if he wanted to rely on the document.
The July 6, 2023 affidavit of John Tiltins
[5] The July 6th affidavit refers to and attaches as exhibits documents that show the plaintiffs were reimbursed for a $5,000 deposit that was made when the disputed property was purchased.
The plaintiffs’ position
[6] The plaintiffs argue the defendants’ motion should be dismissed, because the defendants have not explained why they did not include the evidence in the June 16, 2023 and July 6, 2023 affidavits in the motion materials they served before the cross-examinations. The plaintiffs also submit the parties had agreed to a timetable, which required the defendants to serve their responding motion materials by May 25, 2023. The plaintiffs argue that timelines matter.
Analysis and conclusion
[7] The test for granting leave to file an affidavit after a party has cross-examined an adverse party is as follows:
- is the evidence relevant;
- does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time;
- would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment; and
- did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset. (Nexim Healthcare Consultants Inc. v. Yacoob, 2018 ONSC 91, at para. 9.)
[8] I am satisfied that the evidence in both affidavits is relevant. The evidence in the June 16, 2023 affidavit responds to Mr. Echaouni’s evidence that he concluded the agreement of sale of the disputed property with the owner. The evidence in the July 6, 2023 affidavit shows that the deposit paid by the plaintiff was repaid.
[9] Both affidavits respond to matters raised during the cross-examinations.
[10] The plaintiffs will not be prejudiced if the affidavits are permitted. The plaintiffs may cross-examine Mr. Tiltins on the affidavits or seek to introduce further evidence themselves.
[11] I am satisfied that the defendants provided an adequate explanation for why the evidence was not produced earlier. The documents attached to the June 16, 2023 affidavit responded to Mr. Echaouni’s June 2, 2023 supplementary affidavit. They were given to the plaintiffs’ lawyer, albeit not attached to an affidavit, before the June 7, 2023 cross-examinations. In his July 6, 2023 affidavit, Mr. Tiltins said that he is 77 years old and is the directing mind of a business with locations across Canada. Mr. Tiltins said his business obligations made it difficult for him to sift through records from approximately three to four years ago on what was, for him, a tight timeline.
[12] The plaintiffs’ lawyer is correct when he says that timelines matter. They do. However, in my view, the test under Rule 39.02(2) of the Rules of Civil Procedure is intended to address situations in which a fundamental timeline—the requirement to serve all evidence before cross-examining—is not met. The test requires an adequate explanation; I have found that such an explanation has been provided in this case. If delay had been a concern for the plaintiffs, they could have avoided the delay caused by this motion by consenting to the defendants’ reliance on the affidavits, which, I note, seek to introduce documents which are not controversial and most of which were either provided to the plaintiffs prior to the cross-examinations or prepared by the plaintiffs in the first place.
[13] The plaintiffs rely on Merkur v. Devidal, 2023 ONSC 4128, in which La Horey AJ said that the discretion to grant leave under Rule 39.02(2) of the Rules of Civil Procedure should be granted sparingly. I do not disagree. In this case, however:
- The evidence the defendants seek to have admitted is relevant;
- The plaintiffs’ lawyer had the documents attached to the June 16, 2023 affidavit in his possession prior to the June 7, 2023 cross-examination;
- Two of the three documents attached to the July 6, 2023 affidavit are documents prepared by the plaintiffs;
- The documents attached to the July 6, 2023 affidavit clarify or correct an inference that could be drawn from para. 7 of the plaintiffs’ July 10, 2023 factum, which is that Mr. Echouani paid the $5,000 deposit for the purchase of the property and remains out of pocket for the $5,000; and
- The information in the two affidavits was in the possession of the plaintiffs at the time of the cross-examination.
[14] I find that the circumstances weigh heavily in favour of permitting the defendants to deliver the two additional affidavits.
Disposition
[15] For these reasons, the defendants’ motion is granted. The defendants shall have leave to deliver the two affidavits.
Costs
[16] At the hearing of the motion, the plaintiffs, and the defendants both said that if successful, they would ask for all-inclusive costs of $5,000.
[17] The defendants were successful. Given the positions of the parties on costs, and having considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, in my view, $5,000 all-inclusive, would be a fair and reasonable amount of costs for the plaintiffs to pay.
[18] The plaintiffs shall pay the defendants costs in the all-inclusive amount of $5,000, within 30 days.
Justice Heather Williams Released: October 31, 2023