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Do Foreign Litigants Have To Come to Ontario To Be Examined?

Izzie Schwartz hired Selila Ness to work for his travel agency doing business in Israel and the United States called “Izzie Travels”. Soon, Izzie recognized Selila’s talent and delegated complete control of his business to her. He trusted her with his client lists, introduced her to his contacts and Selila managed the business Izzie built. After ten years Selila quit. She moved to Ontario and created her own Travel Agency. Selila used all of Izzie’s contacts, made use of his client lists and was a complete success. That success came at Izzie’s expense. Selila’s contract with Izzie provided that she would not complete with Izzie Travels in any similar activity for a period of three years. Since Selila was in Ontario he sued her in that jurisdiction.

In Ontario, the Rules Of Civil Procedure1  provide a road map on how litigation is to be conducted. Izzie would set out the damages sought and the grounds for the law suit in his statement of claim. Selila would set out her side of the story in a document called a statement of defence. Afterwards the parties would exchange affidavits of documents listing all of the documents relevant to the law suit. The next step is depositions. Each side would present a representative to be examined by the other side’s lawyers. In the United States this is referred to as depositions. In Ontario it’s called examinations for discovery. In this fictional scenario there is a wrinkle because one of the parties does not live or carry on business in Ontario.

In our fictional case scenario Izzie would argue Selila’s lawyers should come to Tel Aviv to examine him because that is where he lives and where all his original documents are located. Selila would argue that Izzie should come to Ontario where Selila carries on business and where the claim is proceeding. What would the courts say?

Where a person to be examined resides outside of Ontario the court may determine the place of examination2. There is no hard and fast rule. The general test is what is just and convenient to all parties. Courts have a wide discretion, and there are no prima facie rights or burdens on either party. That said, based on my experience and review of the case law Ontario courts have traditionally ordered the parties to come to Ontario to be examined in this jurisdiction3. Exceptions have been made where the person to be examined was impecunious and could not afford the trip4, or was too unwell to travel5. However, in such circumstances the court may require the travelling costs to be paid, or a portion to be paid, by the party conducting the examination. So what happens if the court does not make someone come to Ontario to be examined?

Let’s look at Midland Resources Holding Ltd. v. Shtaif,. The plaintiff lived in Moscow, and had never lived in Toronto. Given his poor health the plaintiff did not travel. Here the plaintiff did not come to Ontario and the court allowed examinations to proceed by videoconferencing. Examination by videoconferencing was a departure from the general rule. Ordinarily Ontario courts order that the parties have to be examined in person 6 in my view it should be ordered rarely and only in exceptional circumstances against the wishes of the examining party particularly where as here credibility of the witness to be examined is a key issue…”].

 

Footnotes
  1.   RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194.
     
  2.   See Rule 34.07(1) which provides that where the person to be examined resides outside Ontario, the court may determine whether the examination is to take place in or outside Ontario and the time and place of the examination. The court also has the authority to determine the amount of attendance money to be paid to the person to be examined. For factors considered see G.C.C. Ltd. v. Thunder Bay (1980), 16 C.P.C. 15 (Ont. Master); reversed on other grounds (1981), 32 O.R. (2d) 111, 20 C.P.C. 276 (Ont. H.C.)
     
  3.   See Praendex Inc. v. Gump (1992), 8 C.P.C. (3d) 332 (Ont. Master), Agristor Credit Corp. Can. v. Rader (1989), 68 O.R. (2d) 281, 34 C.P.C. (2d) 30 (H.C.) Yaeger v. Lavooy (1980), 16 C.P.C. 224 (Ont. Co. Ct.).
     
  4.   See Kohli v. Anand (1986), 54 O.R. (2d) 506, 18 C.P.C. (2d) 101 (Master)
     
  5.   MidlandResourcesHoldingLtd. v. Shtaif 2009 CarswellOnt 7617 Ontario Superior Court of Justice (Commercial List).
     
  6.   See Watson & McGowan, Ontario Civil Practice Rules of Civil Procedure Case Law, Pleadings 34.07 — Case Law (Approx. 2 pages) and See Master Dash comments in 1337194 Ontario Inc. v. Whiteley, 2004 CarswellOnt 2312 (Ont. Master). He ordered that discovery by video conferencing could be ordered under Rule 34.07(1)(f). In that case, he made the following statement, “While I agree that discovery by videoconference can be ordered under rule 34.07(1)(f) [as per Guarantee Co. of North America v. Nuytten (1997), 10 C.P.C. (4th) 251 (Ont. Master)
     

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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