Fridays With Rogers Partners

At this morning’s muffin meeting, we went over a case dealing with a motion for production of an adverse costs insurance policy, and a case addressing the test for cross-examining a witness prior to trial.

Motion for Production of Adverse Costs Insurance Policy

Matthew Umbrio discussed the case of James v. McGuire, 2020 ONSC 914. The action arose out of a motor vehicle accident. At the discovery of the plaintiff, counsel refused all questions regarding the existence and particulars of any adverse costs insurance policy (“ACP”).

Plaintiff’s counsel subsequently disclosed the existence of an ACP, but would not produce the policy.  Plaintiff’s counsel argued that solicitor-client privilege was engaged as the ACP was a blanket policy in the name of the law firm, not in the name of the plaintiff.

Master Robinson relied on two recent Ontario Superior Court decisions, Jamieson v. Kapashesit and Robichaud v. Constantinidis, as authority that an ACP held in the name of the law firm was not producible. He explained that, since the law firm was not a party and the policy was not held in the name of any party to the litigation, rule 30.02 did not apply to require disclosure of the ACP.

Master Robinson found there was merit to the distinction argued by the defendants between the policyholder of an insurance policy, the named insured under that policy, a named additional insured, and potentially unnamed additional insureds.

He noted that these distinctions do not appear to have been argued before the court in either Jamieson or Robichaud. Regardless, he said that was bound by these decisions.

Therefore, the defendants’ motion was dismissed. However, it remains to be seen whether another court will order production of an ACP where the plaintiff is a named or unnamed additional insured.

Cross-Examination Prior to Trial

Micah Pirk O’Connell addressed the case of Amelin Engineering Ltd. v. Steam-Eng Inc., 2020 ONSC 961. The decision dealt with a rule 36 motion to permit the cross-examination of a witness before trial.

The president of the defendant companies, Mr. Byrnes, was 89 years old at the time of the motion. It came to the attention of plaintiff’s counsel that Mr. Byrnes had reported to a physician practicing in dementia care that he was experiencing a decline in his memory.

Accordingly, plaintiff’s counsel brought a rule 36 motion to cross-examine him before trial. Evidence in chief in this case had been tendered through an affidavit. The defendants objected to Mr. Byrnes being examined before trial, arguing that the extra examination would cause him additional stress.

On a motion seeking an examination before trial, the following factors are considered by the court:

• the convenience of the person whom the party seeks to examine;
• the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity, or sickness;
• the possibility that the person will be beyond the jurisdiction of the court at the time of trial;
• the expense of bringing the person to the trial;
• whether the witness ought to give evidence in person at the trial; and
• any other relevant consideration.

Master Jolley found four reasons to allow the cross-examination before trial in this case. First, the plaintiff’s were prepared to conduct the examination in a manner and at a time which was convenient to Mr. Byrnes. They also allowed sufficient time for Mr. Byrne’s counsel to meet with him and prepare him for the examination.

Second, Mr. Byrnes was not likely to experience undue stress because of the examination. In fact, the examination may reduce his ultimate stress because he would be given advance notice of the types of questions he may be asked, as well as the style of cross-examination.

Third, there is a possibility Mr. Byrnes would not be able to testify at trial. Given his advanced age and his decline in short-term memory, there was a legitimate concern that the quality of evidence would degrade before trial.

Defence counsel argued there was no evidence as such. However, their decision to rely on a previous affirmed affidavit for the purposes of preparing a joint document book, rather than have Mr. Byrnes swear an updated affidavit, indicated to the master that they too had concerns about his memory.

Fourth, with respect to the costs, the plaintiffs were directed to bear the costs of the out of court examination. Should the out of court cross-examination not be used at trial, it remains open to the defendants to seek their costs for time spent preparing for, and attending, the examination.

Finally, the defendants argued that pursuant to Aviaco International Leasing Inc. v. Boeing Canada Inc., 2000 CarswellOnt 2194, only a party who intends to introduce the evidence of a witness can seek an out of court examination of that witness.

However, Master Jolley found that in that case, because the defendants undertook to call the witness at trial, the evidence in chief and cross-examination would be given contemporaneously. Both would have been affected equally in the event of issues arising from the witness’ attendance. In this case, however, with evidence in chief admitted only through affidavits, any memory issues raised at trial would only affect the defendants’ cross-examination.

Master Jolley therefore granted the motion and directed the cross-examination to proceed prior to trial at a location convenient to Mr. Byrnes, at the initial expense of the plaintiffs.