Court File and Parties
COURT FILE NO.: CV-15-00010824-00CL DATE: 20240109
SUPERIOR COURT OF JUSTICE – ONTARIO – COMMERCIAL LIST
RE: Quadrangle Group LLC, QCP CW S.A.R.L. and Obelysk Media Inc., Plaintiffs
AND:
Attorney General of Canada, Defendant
BEFORE: Peter J. Osborne
COUNSEL: Jonathan Lisus, for Quadrangle Group LLC and QCP CW S.A.R.L., Plaintiffs Kris Borg-Olivier and Danielle Glatt, for Obelysk Media Inc., Plaintiff Sanderson Graham and Sanam Goudarzi, for the Defendant
HEARD: January 9, 2024
ENDORSEMENT
[1]. Two issues issue have arisen mid-trial in respect of read-ins from examinations for discovery that require the direction of this Court in respect of Rule 31.11 of the Rules of Civil Procedure.
[2]. At the trial management conference conducted just prior to the commencement of this trial, the Plaintiffs on the one hand and the Defendant on the other both advised the Court that they intended to read in to evidence excerpts from the examination for discovery each had conducted of the other(s). I urged the parties to exchange well in advance their proposed read-in excerpts, in order that any issues about the content of those excerpts could be resolved. Such were the exigencies of this lengthy and complex trial that that did not occur in advance.
[3]. The first issue relates to read-ins of the Plaintiffs as part of their case. At the conclusion of their case, the Plaintiffs read in to evidence, as part of their own case against the Defendants, excerpts from the examination for discovery of the Defendant’s two discovery witnesses.
[4]. I say “read-in to evidence”, as that is the language used in the relevant Rule. In fact, as is the practice of this Court (particularly in lengthy and complex matters), on the consent of the parties and with leave of the Court, the Plaintiffs filed a brief of read-in excerpts from the discovery transcripts, which brief was marked as an exhibit and deemed to have been read into the record.
[5]. Counsel for the Defendant submitted that they had not had an adequate opportunity to review the brief in advance, and while they consented to it being filed, they reserved their right to request that the excerpts be augmented by additional excerpts that qualified or explained the questions and answers first introduced. The Plaintiffs agreed, and the brief was filed on that basis. The Plaintiffs then closed their case.
[6]. Now, some two weeks later, the Defendant has called all of its fact witnesses (only part of the evidence of one damages expert remains) and, as the Defendant is about to close its case, it seeks to file a brief of additional excerpts from the examination for discovery transcript of its own witnesses that, it submits, qualify or explain the excerpts filed by the Plaintiffs.
[7]. The Plaintiffs object.
[8]. The second issue relates to read-ins of the Defendant that it now seeks to file. The Plaintiffs object to this also. In the main, they assert unfairness and a violation of the Rule in Browne v. Dunn.
[9]. I will address each of these issues in turn.
Rule 31.11
[10]. Rule 31.11 provides, in relevant part, as follows:
(1) At the trial of an action, a party may read-into evidence as part of the party’s own case against an adverse party any part of the evidence given on the examination for discovery of,
a. the adverse party; or
b. a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the trial judge orders otherwise,
if the evidence is otherwise admissible, whether the party or other person has already given evidence or not.
(3) Where only part of the evidence given on an examination for discovery is read-into or used in evidence, at the request of an adverse party the trial judge may direct the introduction of any other part of the evidence that qualifies or explains the first part introduced.
(4) A party who reads into evidence as part of the party’s own case evidence given on an examination for discovery of an adverse party, or a person examined for discovery on behalf or in place of or in addition to an adverse party, may rebut that evidence by introducing any other admissible evidence.
The First Issue: Read-Ins by the Plaintiffs and Proposed Qualifying Excerpts from the Defendant
[11]. The read-ins filed by the Plaintiffs include excerpts from the examination for discovery of each of the two witnesses examined for discovery on behalf of the Defendant. Both of those witnesses testified at trial. Their evidence is complete. The Defendant now seeks to read-in 27 additional passages from the discovery evidence of those two witnesses “to provide context” to the excerpts filed by the Plaintiffs.
[12]. The Plaintiffs consent to the admission of certain of the proposed additions, object entirely to others and object in part to one proposed addition.
[13]. The Defendant further opposes leave being granted, if leave were sought by the Plaintiffs, to recall any witnesses.
[14]. The Defendant submits that Rule 31.11 is intended to be a rule of trial fairness, and that it specifically contemplates the reading-in of additional answers if they are necessary to qualify or explain answers that have been read-in by the Plaintiffs.
[15]. The Defendant relies primarily on Graat v. Adibfar, 2013 ONSC 1690 (“Graat”) and Campbell v. Roberts, 2013 ONSC 3080 (“Campbell”) and submits that additional qualifying read-ins may be required to prevent injustice being done to the examined party if the answer that already has been read-in did not truly indicate the evidence on the point, and to ensure that the trier of fact is not misled.
[16]. The Defendant also relies on Federal Court authority to the effect that the jurisprudence errs on the side of caution favouring completeness over selectivity: Canadian Pacific Railway Co. v. Canada, 2020 FC 1058 (“Canadian Pacific”). Qualifying read-ins have been allowed, the Defendant submits, where they expand upon, complete, qualify, contradict or contextualize an answer read-in by the opposing party, all of which assists the Court in assessing weight: Campbell and Canadian Pacific.
[17]. The Plaintiffs submit that the Defendant is effectively splitting its case in seeking to adduce additional evidence that it ought to have called as part of its case. They submit that the read-ins filed fairly represent the full answers to the questions asked and that the proposed additional excerpts do not qualify or explain those answers.
[18]. Moreover, the Plaintiffs submit that there is a fundamental trial unfairness if the qualifying excerpts are permitted since those witnesses have already completed their evidence, and the Plaintiffs did not have the opportunity to address the additional proposed answers in cross-examination of those witnesses.
[19]. Finally, the Plaintiffs submit that the Federal Court jurisprudence is of limited applicability since it flows from Rule 289 of the Federal Courts Rules which is much more permissive than is Ontario Rule 31.11. Rule 289 requires only that the original read-in and the additional proposed read-in be “related” whereas Rule 31.11(3) requires that the additional read-in “qualify or explain the first part introduced”.
[20]. The Plaintiffs rely on Graat and Andersen v. St. Jude Medical Inc., 2010 ONSC 1824 (“Andersen”), the leading case governing the interpretation of Rule 31.11(3). They submit that Rule 31.11(3) permits the opposing party to request that the court permit the additional evidence to be read-in for the singular purpose of ensuring that the trier of fact is not misled by a partial admission or one that is qualified or explained elsewhere.
[21]. The party seeking to read-in the evidence may adduce any part of the examination for discovery evidence, but only if the evidence is otherwise admissible. The adverse party does not have an equivalent right to adduce its own discovery evidence, and nor does it have the right to control the content of the read-ins. Andersen stands for the proposition, the Plaintiffs submit, that where the original read-ins already represent a fair answer to the specific question asked, no qualification or explanation will be necessary or permitted.
[22]. Andersen was a medical malpractice action in this Court. Lax, J. concluded that Rule 31.11 gives the party reading in the excerpts the prima facie right to control the read-ins. The qualification on that right is fairness, which is why Rule 31.11(3) permits the opposing party to request of the court that additional evidence be read-in (emphasis in original):
[13] Under Ontario law, the examining party, who does not know the information that is known to the party being examined, is permitted wide latitude in pursuing broad avenues of inquiry on discovery. Because the evidence obtained through oral or documentary discovery of the adverse party is not known, it may turn out to be favourable and assist with proof of the examining party’s case, but equally, that evidence may turn out to be neutral, unfavourable, or harmful. The latitude given to an examining party on discovery combined with the right given to that party to select the evidence it will read-in as part of its case under rule 31.11(1), gives that party the prima facie right to control the read-ins. The qualification on that right is fairness. The underlying principle is to ensure that the trier of fact is not misled by a partial admission or one that is qualified or explained elsewhere.
[14] Thus, rule 31.11(3) permits the opposing party to request of the court that additional evidence be read-in. Neither party has an unqualified right to read-in evidence, but the party reading in may read-in “any part of the evidence given on examination for discovery” if the evidence is otherwise admissible. The opposing party does not have an equivalent right nor does it have the right to control the content of the adverse party’s evidence. If the evidence read-in fairly represents an answer to the question asked, no qualification or explanation will be necessary or permitted.
[15] Case law on the current and former rule and similarly worded rules of civil procedure in Canada support that it is fair to allow a qualifying read-in to complete an answer or admission where that answer or admission is incomplete (Edwards v. Arbeau et al. (1962) D.L.R. (2d) 319, [1962] N.B.J. No. 18 at para. 32; Capital Trust Corp. v. Fowler (1921), 1921 CanLII 517 (ON CA), 50 O.L.R. 48 at 51, [1921] O.J. No. 81 (C.A.) at paras. 16 & 23). The scope of the qualification must not go beyond a direct answer and must be substantively connected to the answer or admission (Arbeau at para. 25; Edmonton (City) v. Lovat Tunnel Equipment Inc., [2000] A.J. No. 431 (Q.B.) at para. 22). It follows that where an answer read-in is clear and complete, separate and distinct questions and answers should not be read under the pretext of providing context (Dix. v. Canada (A.G.), 2002 ABQB 196, [2002] A.J. No. 238 (Q. B.) at para. 14). Additionally, the opposing party is not entitled to use qualifying read-ins under rule 31.11(3) as a means to introduce evidence favourable to its case so as to avoid properly tendering that evidence through its witnesses at trial, such as through qualifying read-ins from the transcript on a re-examination (Roumeliotis v. David, [2004] O.T.C. 127, 5 C.P.C. (6th) 21 (S.C. Ont. Master) at para. 14).
[19] Rule 31.11(3) provides the trier of fact discretion to allow the opposing party to explain an answer or admission that will assist the trier of fact to understand an otherwise incomplete, unclear, or incorrect answer. As noted by Master Beaudoin in Roumeliotis, rule 31.11(3) should not be used to allow parties to recast their own examination more favourably. It would be unfair to use rule 31.11(3) as a substitute for cross examination of an opposing party or examination in chief of one’s own party, and such an allowance would encourage parties to lead their witnesses during a discovery re-examination (Roumeliotis, paras. 14 & 17).
[20] In Dix, the Alberta Court of Queen’s Bench noted that if an answer is read-in, the answer should be read-in in its entirety. However, where an answer is complete, the parties should not read-in answers that are not responsive to the question, or that merely editorialize an answer. The court stated that “an opposing party is not required to read-in everything the examined party said on a topic” (para. 9). As stated above, where an answer read-in is clear and complete, separate and distinct questions and answers should not be read-in under the pretext of providing context (para. 14).
[23]. I agree with that interpretation of Rule 31.11(3). Further in my view, the Federal Court jurisprudence based on Rule 289 must be considered with some caution given (as I accept) the wider latitude in the Federal Rule, although many of the overarching principles (i.e., the objective of ensuring fairness and the trier of fact having the benefit of complete answers) are consistent in any event.
[24]. Indeed, it is clear that at the end of the day, the parties here do not significantly disagree on the import of the jurisprudence. The disagreement lies in the application of that jurisprudence to the particular questions sought to be read-in here.
[25]. For example, the Defendant relies on Andersen for the proposition that where the additional proposed read-in consists of a repetitive or rephrased question asked and answered as part of the read-in of the opposite party, and the witness qualifies his or her answer, both sets of questions and answers should be read-in (para. 34).
[26]. The Plaintiffs also rely on Andersen for the proposition that the rule should not be used to allow parties to recast their own examination more favourably and use it as a substitute for cross-examination of an opposing party or examination chief of one’s own party, since such an allowance would encourage parties to lead their witnesses during a discovery re-examination. If an answer is read-in, the answer should be read-in, in its entirety. But where answer is complete, the party should not read-in answers that are not responsive to the question and separate and distinct questions and answers should not be read-in under the pretext of providing context (paras. 19, 20). In my view, both are correct, and are not inconsistent with one another.
[27]. The complicating factor here results from the timing and sequence of events discussed above. The Plaintiffs allege unfairness because the witnesses whose evidence is now sought to be qualified have already testified at trial, with the result that the Plaintiffs are, they submit, deprived of their ability to put the qualifying excerpts to those witnesses as they saw fit. The Defendant submits that there is no unfairness since the Plaintiffs were free to put to the witnesses any excerpts from their examination for discovery, whether or not they were part of the read-ins.
[28]. In my view, the submission of the Plaintiffs in this regard is a result of timing but it is not without merit. I do not think that it is fair to simply say that their counsel could have put any or all of the examination for discovery transcripts to those witnesses, such that they are not prejudiced by additional qualifying read-ins being introduced only now, after those witnesses have testified. The simple fact is that such a determination by counsel at trial would inevitably be affected, it seems to me, by their knowledge as to whether or not the Defendants had insisted that read-ins be qualified with additional questions and answers.
[29]. Accordingly, I must take into account this potential unfairness in my analysis, since the Defendant opposes the granting of leave to recall any of the relevant witnesses. However, in this particular case that is tempered somewhat by the position of the Plaintiffs taken on this motion that, whatever the result, they have determined that they will not seek leave to recall the witnesses of the Defendants. Still, however, they vigourously maintain their objections to the proposed qualifying read-ins.
[30]. Accordingly, I must apply these principles to the particular questions at issue. Each of the Plaintiffs on the one hand and the Defendant on the other hand has provided me with a chart with columns setting out the original read-in excerpt of the Plaintiffs, the requested clarification or qualification of the Defendants, and the respective submissions of the parties on why the additional read-in should be permitted or rejected. Given the time constraints, I have not repeated those here for each question.
Examinations of Peter Hill and Fiona Gilfillan
[31]. Question 55 to be qualified by questions 56 and 57. Question 55 asks Mr. Hill for an explanation of what the Spectrum Management Branch means when it described spectrum that was being auctioned off, and his answer was to the effect that what is being auctioned off is the right to utilize the airwaves in question over a geographic area. I am satisfied that the questions and answers in 56 and 57 qualify and explain the answer to the effect that the license gives the licensee the ability to use the spectrum in accordance with the Radiocommunication Act. They can be included.
[32]. Questions 346-347 to be qualified by questions 348-349. Questions 346-347 ask Ms. Gilfillan about the restrictions in place after the five-year lapse (i.e., the five-year moratorium on license transfers to incumbents) and what the existing practice was. Questions 348-349 qualify and explain that practice. They can be included.
[33]. Question 382 to be qualified by question 383. The question and answer at 382 are complete and self-contained. At 383, the witness proceeds to reformulate the question herself and then answer it. It does not clarify, qualify or explain the previous answer and indeed was not asked by the examining counsel. It is excluded.
[34]. Questions 994-999 to be qualified by questions 1000-1002. The first set of questions and answers are complete and self-contained. The proposed additional questions and answers do not qualify or explain those questions and answers, but rather proceed to address a different question which flows from a particular document (an email of Friday, November 9). The fact that they relate to the same general topic is not sufficient. The first set of questions relate to the view of the Department about the Rogers-Shaw transaction and how the Minister may have disallowed the option agreement. The second set of questions addresses a related but different issue about the operation of that agreement and whether it constituted an agreement to transfer immediately or an option to transfer later. They are excluded.
[35]. Question 1496 to be qualified by questions 1503-1505. The second set of questions and answers qualify and explain the answer of the witness to question 1496 which asks about the general approach of the Department in regulating spectrum to take measures as minimally intrusive as possible. They can be included.
[36]. Questions 1651-1652, to be qualified by questions 1646-1650. There is no objection to the inclusion of question 1650. The dispute relates to questions 1646-1649. Those additional questions do not clarify or explain the answers to questions 1651-1652, which relate to the fact that the spectrum license transfer framework is the definitive document to which reference is had by the Department when assessing spectrum license transfer requests. The earlier additional questions address the application of the framework and are different questions, the answers to which do not qualify or explain the existing read-ins. They are excluded.
[37]. Questions 2594-2603 to be qualified by question 2604. All of the questions relate to the knowledge and understanding of the Department about the risks and rewards of a potential investment (in spectrum licenses). The answer to question 2604 is clearly part of that thread. I do not accept the submission that it is misleading. The witness is asked whether the Department understood that one of the things investors would see as potentially mitigating the risk was the ability to transfer their licenses, and her answer is simply to the effect that she is not sure if at the time there was much discussion of that. It can be included.
[38]. Questions 2993-2994 to be qualified by question 2998. The Defendant no longer requests that questions 2995-2997 be read-in, so the only issue relates to question 2998. The first set of questions ask about the two options or alternatives being proposed in the letter (i.e., simply return the spectrum to the Department, or give the spectrum to whomever the Department specifies. Question 2998 and the answer flow directly from the answer of the witness to question 2994 which was to the effect that the second option was something the Department could not do. It can be included.
[39]. Questions 3207-3210 to be qualified by question 3211. The first set of questions and answers relate to the fourth player policy and goal of the Minister. Question 3211, in contrast, relates to a change in policy between the 2008 auction and the date of the document being discussed, and the witness is asked when the change in policy occurred and why it occurred. That question is distinct from the first set of questions and the answer does not qualify or explain the answers to the first set of questions. It is excluded.
The Second Issue: Read-Ins by the Defendant
[40]. The Defendant seeks to read in 30 sets of questions and answers from the examination for discovery (including one question answered by undertaking) of the witnesses of each of the two Plaintiffs. As stated above, both of those witnesses gave evidence at trial.
[41]. The Plaintiffs object to this approach, with primary reliance on the Rule in Browne v. Dunn. They submit that the Defendant cross-examined both of these witnesses extensively at trial, and elected not to put any of the proposed read-ins to either witness. In so doing, the Defendant deprived those witnesses of the opportunity to address the admissions, with the result that the Rule in Browne v. Dunn is engaged.
[42]. In the interest of reasonableness, they say, the Plaintiffs are limiting their objections to a subset of the proposed read-ins as further explained below.
[43]. The Defendant submits that it has a prima facie right to read in otherwise admissible discovery evidence pursuant to Rule 31.11, whether the adverse party has already given evidence or not. The Defendant submits that this is an important trial efficiency rule. Moreover, it submits that it is not seeking to read in this discovery evidence for the purpose of impeachment or contradiction since none of the excerpts proposed to be read in were contradicted, it submits, in the respective evidence of either witness. Rather, the Defendant submits, the read-ins will simply supplement the record with permissible evidence and recorded admissions.
[44]. Since, according to the Defendant, the proposed read-ins will simply “fill in gaps” in the evidence rather than impeach either witness or contradict their evidence, the Defendant submits that the Rule in Browne v. Dunn is not engaged. Even if it were, a trial judge has discretion to determine the consequences of non-compliance, but has no discretion to exclude the evidence. To do so would be inconsistent with the right provided by the Rules of Civil Procedure, since Rule 31.11 permits read-ins “whether the adverse party has already given evidence or not”.
[45]. Finally, the Defendant submits that since the Plaintiffs were permitted to file a read-in brief before closing their case, the Defendant should be entitled to “a comparable balanced approach with respect to its own proposed read-ins” and that the refusal to do so would “give the Plaintiffs a benefit not accorded to the Defendant, contrary to the purpose of the Rule”.
[46]. This issue arises relatively infrequently for the obvious reason that while Rule 31.11 clearly permits read-ins whether or not the adverse party has already given evidence, the usual practice, which in my view is proper, is for counsel to a defendant to put the discovery evidence of a witness for the plaintiff to that witness in cross-examination at trial. The witness can then adopt the discovery evidence, in which case it becomes his or her evidence at trial, or if the witness refuses to adopt the discovery evidence (or gives inconsistent evidence at trial), the witness can be impeached on the discovery transcript.
[47]. The Rule in Browne v. Dunn was considered by the Court of Appeal for Ontario in R. v. Quansah, 2015 ONCA 237 at paras. 76-79:
[75] In Browne v. Dunn, Lord Herschell L.C., explained that if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence: Browne v. Dunn, pp. 70-71; R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628, [1999] O.J. No. 1216, 134 C.C.C. (3d) 131 (C.A.), at p. 141 C.C.C.; and R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212, [2000] O.J. No. 1357, 144 C.C.C. (3d) 551 (C.A.), at para. 44.
[76] The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues. In some jurisdictions, for example, in Australia, practitioners describe it as a "puttage" rule because it requires a cross-examiner to "put" to the opposing witness in cross-examination the substance of contradictory evidence to be adduced through the cross-examiner's own witness or witnesses.
[77] The rule is rooted in the following considerations of fairness:
(i) Fairness to the witness whose credibility is attacked:
The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted: R. v. Dexter, [2013] O.J. No. 5686, 2013 ONCA 744, 313 O.A.C. 226, at para. 17; Browne v. Dunn, at pp. 70-71;
(ii) Fairness to the party whose witness is impeached:
The party calling the witness has notice of the precise aspects of that witness's testimony that are being contested so that the party can decide whether or what confirmatory evidence to call; and
(iii) Fairness to the trier of fact:
Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment [page 94] to be unfounded and thus compromise the accuracy of the verdict.
[78] In addition to considerations of fairness, to afford the witness the opportunity to respond during cross-examination ensures the orderly presentation of evidence, avoids scheduling problems associated with re-attendance and lessens the risk that the trier of fact, especially a jury, may assign greater emphasis to evidence adduced later in trial proceedings than is or may be warranted.
[79] Failure to cross-examine a witness at all or on a specific issue tends to support an inference that the opposing party accepts the witness' evidence in its entirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later or, in a closing speech, to invite the jury to disbelieve it: R. v. Hart (1932), 23 Cr. App. R. 202 (Ct. Crim. App.), at pp. 206-207; R. v. Fenlon (1980), 71 Cr. App. R. 307 (C.A.), at pp. 313-14.
[80] As a rule of fairness, the rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case: R. v. Paris, 2000 CanLII 17031 (ON CA), [2000] O.J. No. 4687, 150 C.C.C. (3d) 162 (C.A.), at paras. 21-22, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 124; R. v. Giroux, 2006 CanLII 10736 (ON CA), [2006] O.J. No. 1375, 207 C.C.C. (3d) 512 (C.A.), at para. 42, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 211.
[81] Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted: Giroux, at para. 46; McNeill, at para. 45. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness: Dexter, at para. 18; R. v. Verney, 1993 CanLII 14688 (ON CA), [1993] O.J. No. 2632, 87 C.C.C. (3d) 363 (C.A.), at pp. 375-76 C.C.C.; Paris, at para. 22; and Browne v. Dunn, at pp. 70-71.
[48]. What is clear from the Court of Appeal is that the Rule in Browne v. Dunn is rooted in fairness to the witness whose credibility is attacked; fairness to the party whose witness credibility is impeached; and fairness to the trier of fact. What is also clear is that the Rule permits significant discretion in the trial judge; is significantly dependent on the circumstances of each individual case; and the remedies available to the trial judge are broad. Exclusion of the evidence is not automatic, even if the Rule is violated.
[49]. The Plaintiffs place significant reliance on the decision in Austin v. Bubela, 2011 ONSC 3287. In that case, McEwen, J. of this Court applied the Rule to the situation here: proposed read-ins by the defendant at trial, and observed that:
[5] In my opinion, the defendant cannot introduce the plaintiff’s transcript evidence since it violates the Rule in Browne v. Dunn. This rule requires the defendant to give the plaintiff an opportunity to comment upon the evidence being introduced.
[6] While the Rules of Civil Procedure allow a party to read in evidence as part of his or her own case against an adverse party, I cannot conclude that this procedural step overrides the substantive legal rule in Browne v. Dunn.
[7] In my view, while the defendant, at the end of his case can introduce excerpts from the plaintiff’s examination for discovery transcript, as evidence, he can only do so if he has first complied with the rule in Browne v. Dunn and has previously put the transcript excerpts to the plaintiff. This was not done in this case.
[50]. Schabas, J. of this Court, in Flying E Ranche Ltd., v. Attorney General of Canada, 2021 ONSC 4301, considered a situation very similar to that now before me in that just prior to the completion of the defendant’s case at trial, the defendant proposed to read in evidence given on the examination of discovery of the plaintiffs.
[51]. Schabas, J. observed (as I did above) why this situation is relatively uncommon:
[12] In a trial it is uncommon for the defendant to read in discovery evidence of a plaintiff, usually because the plaintiff has testified and the defendant has already had the opportunity to cross-examine the plaintiff at the trial. The cross-examination provides the defendant with the opportunity to obtain admissions that may have been given on discovery, and to confront and contradict the plaintiff if he or she attempts to resile from an admission or gives contradictory evidence at trial.
[52]. After quoting Rule 31.11, the Court noted at paragraph 14 that:
Although the rule permits read-ins “whether the party or other person has already given evidence,” the evidence to be read-in must be “otherwise admissible.” And that is where the problem lies for the defendant.
[53]. The Court went on to quote from Austin v. Bubela as set out above, and further concluded that the reasoning also accords with the requirements of sections 20 and 21 of the Evidence Act, R.S.O. 1990, c. E.23, which set out specific requirements for the contradiction of a witness using a prior statement, and referenced also International Corona Resources Ltd. v. LAC Minerals Ltd., [1986] O.J. No. 68 and Morrison v. Greig, 2006 CanLII 37597 (ONSC).
[54]. In addition, the Court went on to consider the decision in Chandra v. Canadian Broadcasting Corporation, 2015 ONSC 8140, in which the Court permitted certain discovery excerpts to be read in by a defendant on the basis that they were not for impeachment purposes but rather were for “filling gaps with detail…. and to the extent that the read-ins consist of admissions, to record those admissions.”
[55]. In that case, Mew, J. stated that the fundamental question was fairness to the plaintiff in having an opportunity to respond, and fairness to the defendant who appeared to rely upon the “presumptive ability” to read in evidence under Rule 31.11 in structuring its defence. Mew, J. was prepared to consider a request by the plaintiffs to give evidence in reply to address whatever was read in.
[56]. Schabas, J. in Flying E Ranche considered this and observed at paragraph 21 that:
If there is a role for Rule 31.11 to read-in discovery evidence to “fill a gap,” those circumstances will be rare. Further, even in Chandra, Mew, J. noted that fairness might have required him to permit reply evidence, leading to longer and perhaps less fair trials, which should be avoided if possible.
[57]. I agree with this observation, and the concern expressed, particularly in cases such as that now before me, where the situation and the potential for prejudice and unfairness that it causes, was in my view entirely avoidable had counsel for the Defendant put the discovery evidence to the witnesses who have already testified at this trial.
[58]. The Defendant submits here that the reasoning in Austin has been superseded by cases like Chandra and Ottawa Convention Centre Corporation v. Treefort Hip Productions Inc., 2018 ONSC 5233, and submits that its right to read-in discovery evidence is a prima facie one. I accept that it is, though subject to the language of Rule 31.11.
[59]. Notwithstanding that Rule 31.11 clearly contemplates that read-ins may be permitted whether or not the witness has already given evidence, the critical caveat also expressly provided for in the Rule is that the evidence must be otherwise admissible. That clearly engages the Rule in Browne v. Dunn as well as the provisions of the Evidence Act relevant to prior statements.
[60]. While a trial judge has, as was made clear by the Court of Appeal, broad discretion as to how to remedy the problem and ensure fairness to the parties (i.e., perhaps by permitting the witnesses to be recalled and allowing an opportunity for the propositions or evidence to be put to them), such a practice is to be discouraged for the very reasons expressed by Schabas, J. A real risk of prejudice and unfairness arises, which in most cases will at best “lead to longer and perhaps less fair trials, which should be avoided if possible”.
[61]. I have some difficulty with the submission of the Defendant here that in seeking to file its own proposed read-ins, it is merely “seeking a comparable balanced approach” to that afforded the Plaintiffs. I accept that the Court must provide a balanced approach to the parties in any matter before it. However, that approach has to recognize the rules of evidence and the fundamental distinction with respect to read-ins that arises from an ordinary trial sequence.
[62]. By that I mean this: fairness is maintained by the fact that if a plaintiff reads in discovery evidence from a defendant, the plaintiff does so as part of its case and therefore necessarily before the defendant calls its case. The defendant therefore has a full opportunity to elect whether to call the discovery witness and whether and the extent to which it wishes to have that witness give trial evidence relevant to the issues that are the subject of the discovery evidence read in.
[63]. Similarly, if a defendant wishes to put in as part of its case evidence obtained on discovery from a witness for the plaintiff, it has the ability to make that election after the plaintiff’s case is closed, and the defendant therefore knows whether the discovery witness was called by the plaintiff, and if so, what he or she said in evidence. The defendant then has, as noted above, the ability to put the transcript to that witness and have the witness adopt the answers as his or her trial evidence or risk being impeached. The Rule in Browne v. Dunn and Evidence Act concerns are thereby avoided or at least minimized, which is precisely why the situation now before me is relatively rare, as it was before Schabas, J. In my view, it should remain relatively rare to minimize the risk of trial unfairness. The result could be different where that plaintiff elects not to call at trial its discovery witness, but that is not the case before me. Both discovery witnesses for the Plaintiffs testified at trial.
[64]. It follows from all of this that I must apply these principles to this case and determine whether the proposed read-ins from the examinations for discovery of the Plaintiffs should be permitted to “fill in gaps” as contemplated by Mew, J.
[65]. In my view, they should not. In Chandra, Mew, J. considered a situation where the defendant proposed to read in evidence not to impeach or contradict, but rather to supplement the record: “that is, filling gaps with detail that it was felt unnecessary to explore at trial because of the evidence that had already been given at discovery” (para. 7). This is the approach that the Defendant urges on me here.
[66]. However, in my view the situation is more analogous to that faced by Schabas, J. in Flying E Ranche, where the evidence proposed to be read in did not “fill a gap” but the issue was raised in cross-examination and the proposed read-ins “arguably expand on the evidence already given, raising fairness concerns” (para. 20).
[67]. I cannot accept the submission of the Defendant to the effect that since none of the proposed read-ins impeaches a witness or contradicts their evidence, it is therefore filling a gap and is thus admissible.
[68]. The overarching objective is fairness, and I do not construe the test that narrowly. Nor can I accept the submission that the proposed approach is proper to maximize “trial efficiency”. Efficiency is critical, given the limited court resources, but it cannot trump fairness. It cannot be the case that a defendant can elect to not put important evidence to a witness for the plaintiff in cross-examination, and then seek to simply read in evidence from discovery because it is more efficient or faster.
[69]. Moreover, I am not persuaded that efficiency would be maximized by doing so in any event: to maintain fairness, a condition of permitting the read-ins might well be the recalling of those witnesses. All of that is to be discouraged.
[70]. I have reviewed each of the proposed read-ins. In its brief, the Defendant has organized them into 12 categories or topics to which each relates:
Discovery Evidence of Mr. John Bitove
a. no reliance on representations made by Mr. Binder;
b. in responding to the consultation on a Framework to Auction Spectrum, Mr. Bitove understood that the Government was not predetermining policy outcomes;
c. Mr. Bitove understood that government policies and rules can change;
d. Mr. Bitove relied on own due diligence;
e. Mobilicity operations;
f. Mr. Bitove did not support the second or third proposed transfers to Telus;
g. Damages;
Discovery Evidence of Mr. Michael Huber
h. prior to the 2008 auction, investment committee, Mr. Huber did not meet with industry Canada and did not record Mr. Bitove’s statements;
i. Quadrangle investment considerations;
j. Mobilicity operations;
k. Diverging interests of Mobilicity bondholders and board members; and
l. Quadrangle did not consider alternative investments.
[71]. As stated above, and notwithstanding their principled objection to all of the proposed read-ins, the Plaintiffs object to only those which they submit “deal with matters at the heart of this case that were pleaded and directly engaged in the Plaintiffs’ opening, and were canvassed at length in the examinations of these two witnesses, Messrs. Bitove and Huber.
[72]. Each of these topics or categories is a known issue in this trial about which there has been significant evidence and about which these two witnesses of the Plaintiffs gave some evidence. In my view, and having reviewed the specific proposed read in(s) in each of these 12 categories, and particularly those to which objection is maintained, it would be unfair to permit these read-ins now, whether or not the specific questions and answers sought to be read in directly contradict the trial evidence of one or other of these two witnesses, and whether or not either of those witnesses would thereby be directly impeached.
[73]. Having now heard approximately four weeks of evidence in this trial, I am satisfied that much of that evidence in this trial surrounds these very issues. As submitted by the Plaintiffs, this evidence included, among other things:
a. representations made by Industry Canada representatives to the Plaintiffs;
b. the relationship and interplay between oral representations and written policies;
c. uncertainty concerning implementation of government policy;
d. the nature of Industry Canada’s promised support to new entrants;
e. the evolution of government policies and the extent of ministerial discretion;
f. the ability of Mobilicity and Mr. Aziz to maximize proceeds from the sale of the business; and
g. a potential alternative investments available to the Plaintiffs.
[74]. I am unable to conclude that it is fair to now, on the last day of trial, permit the Defendant to read in these discovery excerpts when it was clearly open to the Defendant to put all of this evidence to these witnesses, both of whom testified at trial. The Defendant elected not to do that.
[75]. Indeed, none of the proposed read-ins was put to either Mr. Bitove or Mr. Huber. They ought to have been, if the Defendant sought to have the relevant evidence in the record in order that the Court could have the opportunity to evaluate and weigh their evidence at trial. That is exactly what occurred with the witnesses who gave evidence at trial for the Defendant, and from whose examinations for discovery certain excerpts were read in by the Plaintiffs before their trial testimony.
[76]. I recognize that the Plaintiffs are objecting to only certain of the proposed read-ins, and consent to others as set out in the chart attached to the Plaintiffs’ written submissions on this issue at tab one. Accordingly, those proposed read-ins to which the Plaintiffs consent shall be admissible as part of the record. The balance of the proposed read-ins are not.
Result and Disposition
[77]. The Defendant shall prepare and file a brief of additional qualifying or explanatory read-ins of excerpts from the examination for discovery of its witnesses consistent with the directions above, and that brief shall form part of the record.
[78]. The Defendant shall prepare and file a brief of read-ins of excerpts from the examination for discovery of the Plaintiffs’ witnesses consistent with the directions above, and that brief shall form part of the record.
Osborne J.