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Llano v. Royal Shirt Co. Between Myriam Llano, plaintiff (respondent), and Royal Shirt Company Limited, Mary D'Abondanza and Luigi D'Abondanza, defendants Court File No. 96-CU-116229 Ontario Court of Justice (General Division) Master Clark Heard: June 11, 1997. Judgment: June 20, 1997. Counsel: S. Shields, for the plaintiff. A.E. Renton, for the defendants. -------------------------------------------------------------------------------- 1 ????MASTER CLARK:-- This is a motion brought by the defendants pursuant to rule 34.15(1)(a) and (b) for an order requiring the plaintiff to fulfil undertakings and to re-attend to answer questions refused on a cross-examination on an affidavit. 2 ????The plaintiff cross-moves for an order terminating the cross-examination pursuant to rule 34.14(1)(a) and (b). 3 ????On consent an order will go that the plaintiff comply with the undertakings given in the transcript at p. 4, Q. 18, p. 62 Q. 430, and p. 83 - 84 - Q. 565. 4 ????As well, it the hearing of the motion an undertaken was given by Mr. Shields to provide the defendant with a direction and authorization permitting the defendants' solicitors to examine all the medical records available from treating physicians and health care professionals for the period commencing February 1, 1994. The order will apply to the period February 1, 1994 to November 19, 1996, when the within action was commenced. The authorization and direction need not be delivered until after the court's decision on the jurisdiction motion is known. 5 ????That undertaking having been given, the defendant abandoned the refusals shown in the transcript at p. 83, Q.'s 563, and pp. 125, 126 - 127 Q. 847. 6 ????I note in passing that the defendant served the notice of motion only 3 weeks after the cross-examination took place and that this motion was heard barely 1 week later. 7 ????Of the 50 odd refusals listed in the notice of motion only nine were argued, with the following results: 8 ????Q. 30 at p. 5; the name of the travel agent is irrelevant and need not be provided. Question 440 - 441 p. 65: 9 ????This question is irrelevant. Question 745 p. 112: 10 ????The question is misleading, and confusing in that it misstates the premise. Question 875 p. 113: 11 ????Although this question was asked in different words a number of time throughout the transcript, it can be said to go to the question of jurisdiction which is the object of the main motion. It will therefore be answered limited to incidents of discipline from and including May, to and including August of the appropriate year. Question 886 p. 113: 12 ????This is a compound and ambiguous question, impossible to answer in its present form. Question 878 p. 132: 13 ????It is no breach of solicitor and client privilege to ask of the plaintiff, if she contacted a lawyer, and the name of the lawyer. The question should be answered. Question 881 p. 133: 14 ????This question attempts to breach solicitor and client privilege. I have examined the transcript and the witness did not waive that privilege by virtue of the incidental and unnecessary reference to the source of the information she gave in her answer. Question 896 p. 136: 15 ????See Question 881. Question 929 p. 141: 16 ????See Question 881: 17 ????In the result, only two questions are to be answered as noted above. They may be answered in writing pursuant to Rules of Civil Procedure If counsel for the defendant is instructed to ask further questions arising out of the written answers provided, then counsel is now instructed to prepare a list of those questions and move before this court for leave to ask them. THE CROSS-MOTION 18 ????The affidavit is 7 pages long, and the cross-examination runs to 147 pages. 19 ????The relevance of questions on a cross-examination is largely determined by the affidavit filed. However when determining whether or not questions are relevant and whether or not the cross-examiner has abused the right of cross-examination, this court must also recognize and consider the nature of the motion in respect of which the affidavit was filed. 20 ????In the case at bar, the affidavit was filed to oppose a motion brought by the defendant for an order that the court has no jurisdiction to entertain the action on grounds that the plaintiff's rights should be dealt with under a collective agreement. 21 ????An objective examination of the transcript leaves no doubt in my mind that Mr. Levitt used the cross-examination to conduct a wide-ranging discovery and that for reasons of his own, Mr. Shields did not sufficiently curb the cross-examination or stop it when it should have been stopped. In argument, Mr. Shields accepted his responsibility in the matter, but no similar acknowledgement came from counsel for the defendant. 22 ????Nevertheless, turning a cross-examination into a discovery is not the kind of conduct that rule 34.14 is concerned with. Mr. Shields seeks to terminate the cross-examination for other reasons; i.e. (1)? The examination has gone on too long considering the size of the affidavit and the issue on the main motion and now amounts to oppression of the witness, and (2)? Many of the questions asked were insulting and embarrassing as well as being irrelevant, and (3)? That the transcript revealed many instances of an offensive attitude on the part of examining counsel such that the right of cross-examination has been generally abused. 23 ????In opposing the within motion, Miss Renton observed that the plaintiff had filed no affidavit complaining about intimidation and in any event Mr. Shields could have terminated the examination if he felt that circumstances warranted it. 24 ????Mr. Shields offered the following examPles of improper questions asked by Mr. Levitt: Q.? 132 - "Then why did you proposition him then if you didn't know him?" ?????A. - "which proposition?" Q.? - "Do you know what the word "proposition" means? You came on to him sexually." 25 ????It is obvious from reading this and other parts of the transcript, that English is not the witness's first language and that she speaks English with some uncertainty. Notwithstanding, without any groundwork or background, the question insinuates irrelevant and socially unacceptable conduct on the part of the witness, and in the result, is uselessly embarrassing. The only purpose of the question was to intimidate the witness. 26 ????Q. 639 - In this exchange, Mr. Levitt accuses Mr. Shields of frequently putting his hands on the plaintiff and putting his arms around the plaintiff. When Mr. Shields objects to that description, Mr. Levitt demands that two representatives of his own client who are present in the examination room, confirm his accusation on the record, and they do. Such conduct by Mr. Levitt can have no other purpose but to attempt to intimidate both the witness and opposing counsel and turn the examination into a side show when in fact it should demand the same decorum as the courtroom. 27 ????Mr. Levitt then asks the witness directly whether or not Mr. Shields has been putting his hands on her "on a regular basis." Mr. Shields refuses to let his client answer. 28 ????As in Question 132, the entire episode carries a sexual innuendo that is demeaning to Mr. shields and his client, and places Mr. Levitt in a very bad light. 29 ????Q. 439 - Mr. Levitt asks the witness if she knew it was illegal to make tape recordings of conversations in her employer's premises, and then asks Mr. Shields directly if he counselled her to do it. Mr. Levitt then asks the witness "did this counsel give you advice to do that." These questions seek to breach solicitor and client privilege, are irrelevant to the purposes of the cross-examination, and are intimidating to the witness in that they suggested that she had done something illegal. They were also gratuitously insulting to opposing counsel. 30 ????From Question 392 to Question 396, Mr. Shields attempted to explain to Mr. Levitt that in his view a particular question was inappropriate. Mr. Levitt simply talked over Mr. Shields until finally Mr. Shields was forced to quit. 31 ????At p. 106 of the transcript, Q.714, Mr. Levitt eventually gets around to asking the witness whether or not she had signed the affidavit. When he receives a positive reply, he immediately asks her whether she knows that it is perjury to lie. 32 ????At Q. 720 Mr. Levitt instructs the witness to read a paragraph to herself. Then he changes his instructions to her ... "You know what, read it out loud, just to make sure you are reading it. Read paragraph 10." He then orders the witness to "read it out loud read it out loud. Oh, see you weren't even looking at it before." 33 ????In the next line while the witness is trying to read what she had been ordered to read, Mr. Levitt accuses the witness of not even having looked at the affidavit before he ordered her to read it out loud. Then follows some taunting unpleasantness that does not take into account the witness' language difficulty and at Question 733 Mr. Levitt asks "are you saying that you were rushed before you had to sign it? And you didn't carefully read it and consider whether it was true or not?" Notwithstanding the witness's answer that the affidavit is all true, Mr. Levitt keeps asking collateral questions and making silly comments on what the witness is doing, until Mr. Shields persuades Mr. Levitt to get on to the substance of the examination. 34 ????At p. 58 and 59 of the transcript and especially at Q. 405, Mr. Levitt is snide and sarcastic notwithstanding the witnesses perfectly plausible explanation for not immediately recognizing the word "grievance," when spoken by Mr. Levitt. 35 ????Having read many parts of the transcript I am satisfied that Mr. Levitt has indeed abused the right to cross-examine this witness despite frequent attempts by Mr. Shields to intercede. 36 ????Mr. Levitt displayed an hectoring and insulting attitude towards both the witness and opposing counsel and was sarcastic without provocation. 37 ????Notwithstanding that a witness gives contradictory answers, or displays a poor memory on important points, all counsel, because they are officers of the court, must resist any temptation to belittle or bully the witness. If counsel conduct themselves so as to bring the administration of justice into disrepute, in the eyes of even one litigant, they must face the consequences. 38 ????There will be an order terminating the cross-examination of the plaintiff on her affidavit sworn May 6, 1997 except for the two questions ordered answered. 39 ????I will hear submission on costs when counsel have made the arrangements through Mr. Macneall. MASTER CLARK |
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