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JR - Evidence - Summons. Bokhari v. Top Medical Transportation Services [quashing summons]
In Bokhari v. Top Medical Transportation Services (Div Ct, 2025) the Divisional Court faced a JR, this against main and reconsideration decisions regarding HRTO applications which "alleged discrimination with respect to employment because of disability".
Within the JR, the HRTO brought two motions - one to quash summons and the other to strike part of the JR record. Here the court grants the motion to quash the summonses:[4] The applicant intends to raise numerous issues in his application for judicial review. For all but one of those issues, the applicant already has the record that he needs. Those issues are centered on the core reason that his application to the HRTO was dismissed – the finding that his ankle injury was a transitory condition, not a disability. The applicant plans to challenge the process followed because it did not provide him with an oral hearing or the opportunity to call witnesses. He also plans to submit that the Adjudicator’s use of the balance of probabilities standard was unreasonable and that he did not have sufficient notice of it. None of these grounds require the information sought in the summonses to witness.
[5] The summonses to witness are predicated on an assumption, or speculation, that the sought-after internal documents will show something different than the Tribunal practice as set out in an HRTO Practice Direction and shown in HRTO decisions on CanLII.
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[23] The applicant may summons witnesses on a pending motion under r. 39.03 of the Rules of Civil Procedure. There is a prima facie right to do so, however, there are limits. First, these examinations are limited to seeking evidence within the witness’ direct personal knowledge: Magnotta Winery Corporation v. Ontario (The Alcohol and Gaming Commission), 2020 ONSC 561, at para. 52. It is not an examination for discovery. In oral submissions, the applicant’s counsel submitted that the Registrar would not have personal knowledge of the matters within the summonses. On that basis, that summons is quashed.
[24] An opposing party “may move to quash a summons to examine a witness on the grounds that the evidence sought is not relevant to the application or that the examination or the underlying proceeding would amount to an abuse of process”: Airport Taxicab (Pearson Airport) Association v. Toronto (City), 2009 CanLII 25973 (ON SC), at para. 27.
[25] The “onus is on the party seeking to conduct the examination to show on a reasonable evidentiary basis that the examination would be conducted on issues relevant to the pending application and that the proposed witness was in a position to offer relevant evidence”: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), ) (2002), 2002 CanLII 41606 (ON CA), 211 D.L.R. (4th) 741 (Ont. C.A.), at para. 30.
[26] If the party seeking the examination cannot satisfy the relevancy and evidentiary screening, then the summons is regarded as a “fishing expedition and an abuse of process” and not permitted: Airport Taxicab (Pearson Airport) Association, at para. 28.
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[45] I now return to the motion to quash the summonses. As discussed above, to maintain those summonses, the applicant must show a reasonable evidentiary basis that the examinations would be conducted on issues relevant to the pending application and that the proposed witnesses are able to offer relevant evidence. The applicant has not shown a reasonable evidentiary basis that there was a mandatory protocol giving rise to a breach of natural justice. The threshold has not been met.
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