Irwin Allen Design Build Inc. v. Fox, 2025 ONSC 2410

Court File No.: CV-21-655920
Date: 2025-04-17
Superior Court of Justice – Ontario

In the matter of the Construction Act, RSO 1990, c C.30, as amended

Re: Irwin Allen Design Build Inc., Plaintiff
– and –
Joanne Fox and Bank of Montreal, Defendants

Before: Todd Robinson

Counsel:
J. Margie, for the defendant, Joanne Fox (moving party)
J. Goode, for the plaintiff

Heard: 2024-12-02 (by videoconference)

Reasons for Decision (Motion to Permit Attendance of Non-Party at Examination)

[1] Joanne Fox moves for an order permitting her spouse, Evan Kirsh, to attend at the continued examinations for discovery in this action for the purpose of assisting her lawyer. Mr. Kirsh has already attended all three days of the examinations to date without opposition. Irwin Allen Design Build Inc. (“IADB”) now opposes his continued attendance, citing disruptive behaviour by Mr. Kirsh at the examinations and impacts from his presence on IADB’s deponent, Cameron Allen.

[2] Having considered the evidence and fairness as between the parties, I am exercising my discretion to permit Mr. Kirsh to attend the continued examinations. However, he may only attend the examination of Mr. Allen by videoconference. If attending the examination of Ms. Fox, then Mr. Kirsh must not interfere with the examination. He may assist defendant’s counsel, but it must be done in a manner that does not disrupt the examinations and Mr. Kirsh must at all times maintain an assistive role akin to a law clerk or student.

Analysis

[3] Since this motion is brought in a lien action, s. 13 of O Reg 302/18 under the Construction Act, RSO 1990, c C.30 applies. That section provides that interlocutory steps not provided for under the Construction Act require consent of the court on proof that the steps are necessary or would expedite the resolution of the issues in dispute. IADB does not oppose leave for this motion. Having read and heard the parties’ substantive arguments, I am satisfied that leave should be granted.

[4] Whether to permit a non-party to attend an examination for discovery to assist counsel is a discretionary decision. Each case must be decided on its own facts: DeGrandis v. 1123951 Ontario Limited, 2016 ONSC 4335 at para. 7; Poulton v. A & P Properties Ltd. at para. 19.

[5] In Rikhye v. Rikhye, 2017 ONSC 4722, at paras. 7-8, Bloom J. set out several relevant governing principles and considerations when considering a request for a non-party to attend an examination. Although dealing with a cross-examination, the principles discussed in that case are equally applicable (and have been applied) to examinations for discovery. I summarize those principles and considerations as follows:

• (a) Out-of-court examinations are not public hearings, so a non-party may only attend them to assist a party on consent of the other side or by order of the court;
• (b) The party seeking such an order has the onus of proving entitlement to it;
• (c) The non-party should not be a witness at the subsequent trial;
• (d) Attendance of the non-party must not disrupt the examination process;
• (e) The non-party must not take the role of witness or assist the witness in answering questions; and
• (f) In exercising its jurisdiction to allow the presence of a non-party at examinations, the court must consider both substantive fairness to the parties and the appearance of fairness.

[6] Although, in its factum, IADB characterizes Rikhye as setting out a “binding test for the attendance of a non-party”, it conceded in oral argument that the above is not a rigid test, but rather are principles that should guide the court’s determination (as Ms. Fox argued). I agree that Rikhye sets out factors and considerations to guide the analysis, not a binding test that must be met in every case.

[7] Ms. Fox cites several cases in support of her position that Mr. Kirsh should be permitted to attend the continued examinations. However, I agree with IADB that all of them are distinguishable on their facts.

[8] Of the cited cases, the one most factually similar to this case is DeGrandis v. 1123951 Ontario Limited, 2016 ONSC 4335. In that case, the defendant corporation sought leave for the spouse of its principal to attend examinations for discovery. In ultimately granting leave, Master Muir observed that the non-party spouse had assumed the role of an unpaid law clerk for the litigation to keep costs down in addition to providing other, unrelated unpaid labour to the defendant corporation from time to time. Certain conditions for leave were set out, including that her role at the examination was limited to involvement similar in nature to a law clerk or articling student assisting counsel, that she not to take on the role of witness, and that she not assist the defendant’s representative in answering questions.

[9] Importantly, though, in DeGrandis, there had been an express undertaking to the court not to call the assisting non-party as a witness. That is not the case here. To the contrary, it is undisputed that Mr. Kirsh will be a material witness at trial. Mr. Kirsh was clearly quite heavily involved during the project. His affidavits support that he has detailed knowledge of the overall project, including the construction cost estimate, the scope of work performed, and IADB’s invoicing.

[10] Also, there was no evidence before Master Muir (at least none cited in the decision) supporting any actual or anticipated disruptive behaviour by the non-party or a direct impact on the deponent from the non-party’s attendance. Here, Cameron Allen has given direct evidence in support of both.

[11] Mr. Allen’s evidence is that Mr. Kirsh “frequently smirked, threw up his hands, or started furiously and loudly scribbling notes” whenever Mr. Allen answered a question, was “constantly whispering” to defendant’s counsel, and that, on at least one occasion, spoke on the record. Mr. Allen has also given evidence that, in 2022, he completed a lengthy medical treatment, which included major surgery. As a result, he finds that speaking for long periods of time and sitting at a desk causes significant pain related to the surgery and that the litigation process takes a heavy toll on him physically. His affidavit evidence is that Mr. Kirsh smirking, gesticulating, and loudly passing notes only adds to the acrimony between the parties and stress of the litigation.

[12] Mr. Allen’s characterization of Mr. Kirsh’s conduct is disputed. Mr. Kirsh’s affidavit evidence tells a different story. Although Mr. Kirsh acknowledges that he was whispering to defendant’s counsel (to assist him), his evidence is that he did not gesticulate aggressively and that he only spoke on the record once when IADB’s counsel spoke directly to him.

[13] Since IADB has put much weight on the fact that Mr. Kirsh will be a material witness, I wish to deal with that squarely. On the facts of this case, I am not convinced that Mr. Kirsh being a material witness at trial should preclude him from attending the continued discoveries. I say this for three main reasons.

[14] First, Mr. Kirsh has already attended three days of discoveries. The remaining examinations, which deal with questions arising from answers to undertakings, should be narrow in scope. Accordingly, Mr. Kirsh has already heard the bulk of discovery evidence first-hand, which in my view is precisely what the case law intends to avoid. That would not have been the case had this issue been raised prior to examinations.

[15] Second, Mr. Kirsh is Ms. Fox’s spouse. I accept the submission that he has as much interest in the outcome of this litigation as Ms. Fox, which is supported by the record of Mr. Kirsh’s direct involvement in the project. The project itself involves work on the property where the matrimonial home of Ms. Fox and Mr. Kirsh is situated (legally owned by Ms. Fox). Defendant’s counsel has admittedly been jointly retained by both Ms. Fox and Mr. Kirsh. Given these facts, this case is not a situation where a trial witness may not otherwise be aware of what was said in discovery. Not only is it likely that Mr. Kirsh would be aware of the discovery evidence from his spouse, but defendant’s counsel also reasonably has reporting obligations to him as a client.

[16] Third, the suggestion by IADB that it only became clear during Ms. Fox’s examination that her spouse would be a material witness is at odds with the evidence tendered by Mr. Kirsh on his substantial direct involvement in the project, which included meeting and communicating with representatives of IADB and signing the cheques to IADB and trades. Given that involvement, it ought to have been clear to IADB and its lawyers, prior to examinations, that Mr. Kirsh was very likely to be a trial witness. Having let him attend the examinations despite that reality undercuts the weight IADB now puts on Mr. Kirsh’s role as a trial witness in response to this motion.

[17] In my view, this motion ultimately turns on the competing arguments on fairness: both actual fairness to the parties and the perception of fairness.

[18] On one hand, Ms. Fox argues that denying her spouse access to the continued discoveries is procedurally unfair to her because it amounts to “changing the rules of the game” at a late stage of the proceeding. Mr. Kirsh has been permitted to attend the examinations to this point and decisions were made about Ms. Fox’s own attendance and participation during the discovery process based on that. On the other hand, IADB argues that permitting Mr. Kirsh to continue to attend in the circumstances is procedurally unfair to IADB, since it would effectively be trumping the concerns of IADB’s deponent, particularly his discomfort with the dynamic created by Mr. Kirsh’s presence, by prioritizing Mr. Fox’s desire to have more efficient examinations.

[19] Barring Mr. Kirsh from attending further examinations when he has participated in all examinations to date would be unfair. I acknowledge that an objection was raised to his attendance at Ms. Fox’s examination (which proceeded before IADB’s examination), but the objection was not pursued after defendant’s counsel explained that Mr. Kirsh was there to assist him. With one exception, discussed below, Mr. Kirsh was present after that point without any further objection until April 2024, over a year after Mr. Allen’s continued examination in February 2023.

[20] IADB argues, and it is Mr. Allen’s evidence, that IADB chose not to maintain its objection solely to avoid delay. However, if that is the case, then it would have been prudent to put a formal objection on the record to that effect. No such concerns or objections with Mr. Kirsh’s attendance at the examination, or the subsequent examinations, were recorded. Also, no convincing explanation has been provided for why the concerns raised in April 2024 were not raised at or immediately following the examination in February 2023.

[21] I have been directed to only one on-record challenge to Mr. Kirsh’s presence during the examination of Cameron Allen. During the continued examination, Mr. Kirsh was challenged by IADB’s counsel on the record about speaking. Mr. Kirsh had admittedly been whispering and was asked by IADB’s counsel what he was saying. In challenging Mr. Kirsh, IADB’s counsel stated that IADB was being “very generous” in allowing him to be present. Defendant’s counsel reiterated that Mr. Kirsh was only there to assist him. IADB’s counsel stated that Mr. Kirsh should “refrain from making any further comments”, after which the examination continued. I have been directed to no further objections to Mr. Kirsh’s presence during the examinations.

[22] I agree with Ms. Fox’s submission that the presence of someone familiar with the intricacies of the file can make a discovery more efficient, useful, and thorough: Poulton v. A & P Properties Ltd., para 16. The record before me supports that Mr. Kirsh’s knowledge of the project has made his assistance during the examinations important to defendant’s counsel. I accept Ms. Fox’s submission that her lawyer has relied upon Mr. Kirsh to inform discovery on matters relevant to the positions of both parties. Mr. Kirsh’s second affidavit directly addresses how he has assisted counsel.

[23] However, I cannot ignore Cameron Allen’s evidence on his discomfort with the dynamic created for him by Mr. Kirsh’s presence. To the contrary, I accept it. IADB argues that this has become bitter and acrimonious litigation. Based on what I have seen as the reference associate judge, that characterization is accurate. I also accept that Mr. Kirsh whispering to defendant’s counsel and passing notes throughout Mr. Allen’s examination is distracting and unsettling.

[24] Mr. Allen is IADB’s representative for discovery. Albeit that Mr. Kirsh is Ms. Fox‘s spouse, was involved in the project, and jointly retained defence counsel with Ms. Fox, he is not himself a party to the litigation. The record supports that Ms. Fox had a substantial role in the project, including an on-site presence and ongoing email communications with Mr. Allen. IADB submits that Mr. Kirsh does not need to be present to assist counsel. He can readily provide questions in advance, review the transcripts and answers to undertakings, and assist in preparing a position for trial. None of that requires him to be present during the examinations.

[25] There is a viable middle ground that balances the fairness concerns on both sides in the particular circumstances of this case: attendance by videoconference. Accordingly, I am directing that Evan Kirsh may attend Cameron Allen’s continued examination by videoconference. Mr. Kirsh may communicate “notes” to defendant’s counsel by messaging app or by email, with audible receipt notifications turned off, which will avoid the disruptive effect of whispering and physically passing notes. In the current technological age of litigation, such a setup is practical, workable, and fair.

[26] I will not impose the same requirement on Mr. Kirsh attending Ms. Fox’s examination. He may attend that examination in person or by videoconference. Regardless of how he attends, though, Mr. Kirsh’s role at his spouse’s examination shall be limited to one akin to a law clerk or student assisting counsel. He is not to take on the role of witness, meaning that he shall not assist Ms. Fox in any way during her examination, including answering questions for her or speaking with her about her discovery testimony during breaks, regardless of whether he has personal knowledge that may be responsive to the questions being asked.

Disposition

[27] For the foregoing reasons, I am granting Ms. Fox’s motion and permitting Mr. Kirsh to attend the remaining examinations, subject to the terms and restrictions set out above.

Costs

[28] Costs outlines have been exchanged. Both parties intended to rely on settlement discussions, so I could not hear costs submissions at the time of the hearing. I encourage the parties to settle costs of the motion. If the parties cannot agree, and are not prepared to defer costs of this motion to disposition of the action, then written costs submissions shall be exchanged. Ms. Fox shall serve any costs submissions by May 2, 2025. IADB shall serve its responding costs submissions by May 16, 2025. Brief reply submissions may be served by May 23, 2025. Written costs submissions shall not exceed four (4) pages for primary submissions and two (2) pages for reply, excluding any offers to settle and case law.

[29] Once served, all costs submissions shall be submitted by email directly to my Assistant Trial Coordinator, Christine Meditskos, with proof of service. Unless exchanged and submitted in accordance with the above, the parties shall be deemed to have agreed on costs.

Todd Robinson
Date: 2025-04-17