Kosowan v Ferrier, 2017 ABQB 276

Court of Queen’s Bench of Alberta Citation: Kosowan v Ferrier, 2017 ABQB 276 Date: 20170421 Docket: 1503 00669 Registry: Edmonton Between: Larry Kosowan Plaintiff - and - Brittany Ferrier and Jo-Anne Pamela Hof and Kevin Ferrier Defendants _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley In Relation to the Appeal of a Decision of Master Breitkreuz Issued by Order Dated March 16 th , 2016 _______________________________________________________ Nature of the Appeal [ 1 ] Mr.

Kosowan appeals the Decision of the Master to physically exclude him from attendance at Questioning of one of the Defendants, Ms. Ferrier. The Master held that Mr. Kosowan would be permitted to attend the Questioning by teleconference or videoconference, provided Ms. Ferrier’s face is not visible to him.

[ 2 ] The Defendants cross-appeal, arguing that the Master’s Decision did not go far enough and ought to have encompassed the exclusion of Mr. Kosowan from the Questioning of the other two Defendants. [ 3 ] Both parties appeal on the basis that the Master erred in failing to properly consider the evidence before him. The Defendants also submitted that he erred in accepting a written submission of Mr. Kosowan after the application had been heard (of which they were not aware), without seeking further submissions from them.

Background [ 4 ] This action arises out of a motor vehicle accident that occurred on May 20 th , 2013 [the Accident]. The Plaintiff’s motorcycle was struck by a car that was being driven by Ms. Ferrier. Ms. Hof, who is Ms. Ferrier’s mother, was a passenger in the vehicle, along with Ms. Ferrier’s then boyfriend. Mr. Ferrier, who is Ms. Ferrier’s father, was not in the vehicle, but was registered as its owner. [ 5 ] Following the Accident, Ms. Ferrier searched online for information concerning the Plaintiff. She found information suggesting he was an initiate of the Hells Angels.

She also found information that he had been charged with a number of offences (including kidnapping, extortion, assault with a weapon, and unlawful confinement). [ 6 ] In connection with the application, Ms. Ferrier swore in an affidavit that she is “scared to death” of the potential repercussions if she gives her version of events at Questioning. She has significant concerns for her personal safety and the safety of her family. Specifically, she is concerned that, if Mr.

Kosowan sees her face, he will be able to identify her, enabling him or someone from the Hells Angels to retaliate against her. [ 7 ] In response, Mr. Kosowan deposed that he has not been associated with the Hells Angels since 2012. [ 8 ] Mr. Kosowan had no contact or relationship with any of the Defendants prior to the Accident and, other than Ms. Ferrier’s unsubstantiated concern that he may have driven past her house, there has been no contact between Mr. Kosowan and any of the Defendants since the Accident. Ms.

Ferrier has confirmed that no one has approached her home, phoned her or threatened her regarding this Accident. Issues [ 9 ] In determining whether the Master erred in his consideration of the evidence and in ordering a partial exclusion of Mr. Kosowan from Questioning, I must consider the extent to which an objective basis is required to establish evidentiary grounds for an exclusion order. If an objective basis is required, I must consider whether there is a sufficient objective basis present in this case to warrant a complete or partial exclusion of Mr.

Kosowan from Questioning. [ 10 ] The standard of review on appeal from a Master to a Judge, on all issues, is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 , 524 AR 382. Position of the Parties The Defendants’ Position [ 11 ] The Defendants acknowledged that the majority of decisions regarding exclusion orders arise in the family law context, or revolve around concerns about potential tainting of evidence. However, if potential intimidation would cause prejudice to the party to be questioned, this may also be sufficient reason to exclude a litigant from questioning (see e.g.

York University v Markicevic , 2012 ONSC 5325 , 2012 CarswellOnt 117678; Lee v Oh , 2002 ABQB 253 , 215 AR 345). The Defendants relied on comments in Kuefler v Barene Investments

(1998) Ltd , 1998 ABQB 799 at para 12 , 242 AR 353, for the proposition that, in some circumstances, excluding a litigant who is intimidating to the other side may in fact further the objectives of questioning. [ 12 ] The Defendants emphasized the overarching framework set out in the leading case of Lambert v Lomore , 1997 ABCA 398 , 212 AR 182. Lambert requires the Court to assess whether there is a reasonable apprehension of prejudice to the aims of questioning if the litigant is not excluded. The ultimate determination rests with the discretion of the Court. [ 13 ] Counsel suggested that here, Ms.

Ferrier’s affidavit demonstrates a sufficient evidentiary basis for an exclusion order. Ms. Ferrier swore in her affidavit that she is “simply too afraid” to attend Questioning if Mr. Kosowan will be present and able to see her. Even if she were able to overcome this fear, she would be too intimidated to give full and frank answers that would fulfill the objectives of questioning. [ 14 ] In oral argument, the Defendants conceded that there is some objective element to an assessment of fear. Ms. Ferrier was cross-examined on her affidavit, and believes she has a factual basis for her concerns.

Defendants’ counsel suggested that the infamy of the Hells Angels as a criminal organization provides some context for Ms. Ferrier’s apprehensions. Her fear may be extreme, but this contextual framework explains why she has these concerns; they are not simply baseless or irrational. From Ms. Ferrier’s perspective, the information she discovered in the course of her online research provides a context for her fear that raises it above a mere subjective assertion.

[15] The Defendants argued that Ms. Ferrier’s affidavit evidence is sufficient to support the application, and that medical evidenceis not required. Roe v Leone (2009), (ON SC), 96 OR (3d) 234, 79 CPC (6th) 151, which suggested a need formedical evidence, also suffered from other evidentiary shortcomings (such as a lack of affidavit evidence from the individual alleging afear of intimidation), and thus the Defendants argue that this case should be distinguished. [16] Regarding the scope of the order, the Defendants submitted that Ms.

Ferrier’s affidavit set out her fears in relation to bothherself and her co-defendants. Counsel suggested that this is adequate evidence to support an exclusion order for the co-defendants aswell as Ms. Ferrier, given the fears surrounding identification and family safety. If Mr. Kosowan is present at any of these Questionings,it would significantly compromise the aims of questioning, as Ms.

Ferrier has stated that she will not attend due to her fear. [17] Finally, the Defendants suggested that the threshold for granting an exclusion order in the case at bar should perhaps be lowerthan the Lambert criteria, since in this case the Defendants are only seeking partial exclusion. Mr. Kosowan would still be able toparticipate in the proceedings via teleconference or videoconference, so his inherent right to be present would be restricted to a lesserdegree than if he were excluded entirely. Thus, the Defendants submitted that, logically, they should have a lower standard to meet.

The Plaintiff’s Position [18] Mr. Kosowan submitted that he has an inherent right to be present at the Questioning, and this right should only be overridden in exceptional circumstances. He argued that, in this case, the Defendants did notdemonstrate a sufficient evidentiary basis to establish exceptional circumstances. Further, Mr. Kosowan suggested that the Master did noterr in denying the Defendants’ request to have Mr. Kosowan excluded from the Questioning of the other two Defendants. Mr.

Kosowanasserted that it was within the scope of the application to communicate with the Master through the March 18th letter, and that there wasno impropriety involved. Counsel indicated that they were simply seeking clarification in the letter, and asserted that they did copy theDefendants on the communication. [19] Mr. Kosowan submitted that, in addition to preventing him from exercising his inherent right to attend Questioning, exclusionwould also remove his opportunity to identify the driver of the vehicle. Exclusion would thus be prejudicial to his case. Mr.

Kosowanwishes to be present at the Questioning of both Ms. Hof and Ms. Ferrier in order to personally identify the driver. In oral argument,Counsel acknowledged that Ms. Ferrier has admitted to being the driver and Ms. Hof is also named as a defendant. However, Mr.Kosowan wants to be present for his peace of mind in order to confirm the image of the incident that he has in his head. Mr. Kosowanalso suggested that the issue of identity might be relevant to Ms. Ferrier’s and Ms. Hof’s credibility; thus, Mr. Kosowan would like to bepresent to assess their credibility for himself. [20] Mr.

Kosowan argued that the line of authority set out in Redekop v Redekop (1998), (ON SC), 41 OR(3d) 301, 1998 CarswellOnt 3372 (Ont Gen Div), requires an objective basis for an alleged fear of intimidation in order for a Court togrant an exclusion order. Mr. Kosowan suggested that Ms. Ferrier’s fear is subjective, unreasonable, and insufficient to ground the orderrequested. Mr. Kosowan has not done anything since the incident to intimidate or interact with the Defendants, and has deposed that he isno longer associated with the Hells Angels.

Further, the Master implied in his decision that, if the legal test for exclusion included anobjective evaluation of fear, his conclusion might have been different, as he believed that Ms. Ferrier’s fears were not realistic. [21] Mr. Kosowan suggested that a lack of medical evidence further compounds the deficient evidentiary basis for Ms. Ferrier’sapplication. A lack of medical support was a central reason for denying exclusion in Roe v Leone. [22] With respect to the scope of the order, Mr. Kosowan argued that there is insufficient evidence to justify excluding him fromMs. Hof’s and Mr. Ferrier’s Questioning.

The only affidavit evidence is Ms. Ferrier’s. There is no direct evidence from the otherDefendants to suggest that they are afraid of Mr. Kosowan or would not give meaningful, truthful evidence if he were present. Procedural fairness [23] Nothing turns on the Defendants’ ground of appeal that the Master erred when he accepted a written submission after theapplication was heard, and failed to request further submissions from them following his receipt of the memo. [24] It is not an unusual practice for parties to make further submissions after an application had been heard.

The Defendants didnot deny the Plaintiff’s assertion that they were sent a copy of the memo seeking clarification from the Master. If the Defendants wantedto respond to the memo, they could have either done so immediately or sought the Master’s permission to respond to Mr. Kosowan’smemo. [25] In my view, the Master did not err by accepting the March 18th memo from Mr. Kosowan. Neither did he err by not requestinga response from the Defendants. I am therefore satisfied that there was no breach of procedural fairness in the proceeding before theMaster.

To what extent does granting an order excluding a party fromQuestioning require an objective basis for the exclusion? The Law The framework for exclusion orders in Alberta

[ 26 ] It is a well-established principle that parties have an inherent right to be present at Questioning, but that the Court retains the discretion to exclude a party from the proceeding if it is justified in the circumstances. The leading case in Alberta on the topic of excluding parties from questioning is Lambert . Berger JA, writing for the majority, clearly set out that the onus is on the party seeking the exclusion order to establish the factual foundation to justify such an order (para 30).

To grant exclusion, the Court must be satisfied that there is “cogent evidence” before the Court of “a reasonable apprehension that the object and purpose of an examination for discovery will be defeated unless the order goes” (paras 27, 30). At para 29, the Court of Appeal cited a number of purposes of examination for discovery (which would be analogous to the purposes of questioning today), including:

a) enabling the questioning party to know the case to meet;

b) obtaining admissions that allow a party to dispense with formal proof;

c) obtaining admissions that may destroy the opponent’s case;

d) facilitating settlement, trials, and pre-trial procedures;

e) eliminating or narrowing issues; and

f) avoiding surprise at trial. [ 27 ] The facts in Lambert revolved around concerns that the defendants, two police officers sued for assault and unlawful arrest, would tailor their evidence if they were permitted to attend each other’s questioning. The majority of the Court of Appeal found that there was an absence of specific evidence that the officers in that case would tailor their evidence.

In dissent, Fraser JA commented that this imposed a high onus on the applicant, which, in some circumstances, may practically be difficult to meet (para 54). [ 28 ] While Lambert focused on concerns of tainted evidence, rather than fear or intimidation, it has been followed in other cases outside the “tailoring” context (see e.g.

Lee v Oh ). [ 29 ] In Hykawy v Hykawy , 2008 ABCA 324 , 298 DLR (4th) 620, the Court of Appeal reinforced, at para 6, that Lambert only requires a “reasonable apprehension of prejudice,” not a “probability of prejudice.” The Court also suggested that the test in Lambert may be somewhat inconsistent with the jurisprudence in other provinces. At para 5 in Hykawy , the Court commented that whether the Lambert “limitations remain appropriate in light of evolving national standards is an issue for another day.” To date, the Court of Appeal has not re-considered the Lambert approach.

Is there an objective component to the assessment of fear? [ 30 ] Lambert speaks of a “reasonable apprehension” of prejudice if an order is not granted; however, the standard of “reasonable apprehension” is focused on the potential effect on the questioning process if an exclusion order is not made. Subsequent Alberta decisions have not dealt with the issue of whether the fear or concern underlying the anticipated prejudice must be grounded in some objectively reasonable foundation. [ 31 ] Some cases have turned primarily on evidentiary issues.

In Kuefler , there was conflicting affidavit evidence and the witness in question deposed that her answers at questioning would not be affected by the presence of the party that the plaintiff was seeking to exclude. In Lee v Oh , the Court declined to grant an order because there was no meaningful evidence on the record, as the only evidence in support of the application was hearsay evidence or allegations made in the pleadings, with no direct evidence from the defendant who was alleging intimidation.

In Speakman v Canada (Attorney General) , 2004 ABQB 319 , 356 AR 111, Master Smart’s detailed evaluation of the evidence in support of allegations that the defendants might tailor their evidence if an exclusion order was not granted could imply that the Master considered whether the concerns were objectively reasonable. However, the Master did not discuss or distinguish between objective and subjective standards. Other cases provide very little commentary on the analysis of a reasonable apprehension of prejudice, making it difficult to opine what standard was applied (see e.g.

Krull v Allport-Nilles , 1998 ABQB 580 , 231 AR 38). [ 32 ] The Ontario case law suggests that a component of the assessment is objective. In Redekop , one party refused to attend on the basis that he would be intimidated if the opposing party, his ex-daughter-in-law, was present for examination for discovery. At para 13, the Court held that, in order to exclude a party, allegations of intimidation or fear must be supported by the evidence on an objective basis: It is not enough that the respondent feels or fears intimidation. That is not the test.

There must be an objective basis for that feeling or fear; otherwise, the sensibilities of the respondent, no matter how heightened or unfounded, would operate to defeat the substantive right of the applicant to be present during the examination for discovery of the respondent. [ 33 ] Subsequent Ontario decisions have followed this line of reasoning. Curran v Johnston , 2004 CarswellOnt 5530 , [2004] OJ No 5206 (Sup Ct J) , reiterated and applied the requirement of an objective basis for fear. Curran concerned a real estate dispute that created a serious family feud. The applicants, Mr. and Ms.

Curran, sought an order requiring the respondents, Ms. Kirch and Mr. Johnston, to attend examinations for discovery, and specifically allowing the applicants to be present. The respondents indicated that they had fear of the applicants, in part due to Mr. Curran’s temper and his history of domestic violence. The Court relied on the Redekop requirement of an objective foundation for fear.

The Court commented, at para 20, that “unless there is a justifiable objective basis for a feeling of fear of another party by the person to be examined,” one party has as much right to be present at questioning as they do to be present in court to hear testimony at trial. Ms. Kirch had established an objective basis to fear intimidation by Mr. Curran, in part due to his history of violence against women. However, the Court held there was an insufficient objective basis to exclude Ms. Curran from Ms. Kirch’s questioning, and also did not exclude Mr. Curran from Mr.

Johnston’s questioning. [ 34 ] The case at bar is factually unique. Nonetheless, one Ontario case addressed fear in the context of individuals with a potential criminal association. In Popov v Jones , 2010 CarswellOnt 10677 (Ont Master) , the defendant wanted the plaintiffs excluded from the

cross-examination on his affidavits. He deposed that he feared for his life and safety, as well as the safety of his family, due to anonymous phone threats and information he had received from the police since the lawsuit began. The police had informed the defendant that he was being remotely tracked by a group of individuals who were armed with firearms and found with kidnapping-related items in their vehicle. Two of the suspects were of Eastern European descent and had prior kidnapping-related convictions.

Following this incident, the defendant received a number of anonymous, threatening phone calls, including attempts to extort money from him. He deposed that he believed the plaintiffs had orchestrated these events and threats. The plaintiffs swore affidavits that they had never followed, threatened, or traced the defendant. The Master accepted that Mr. Jones had reason to fear individuals of Eastern European background as a result of the information provided by the police. However, there was no direct evidence that connected the plaintiffs to the Eastern Europeans described by the police.

The Court found, at para 3, that the defendant had demonstrated subjective fear, but it was unsubstantiated: “While Marcel may have a real fear, there is no realistic or substantial objective evidence to cause Marcel to fear for his safety if these plaintiffs, or representatives of the plaintiffs, were together with their lawyer during his cross-examination.” The Master declined to grant an exclusion order, but directed that the defendant could have a security officer present at the questioning, at his own expense.

Analysis [ 35 ] In Alberta, the Lambert criteria remain the guide for exercising discretion to exclude a party from being present at questioning of the opposing side. The party seeking an exclusion order must demonstrate that there is a reasonable apprehension that the objectives of questioning will not be met unless the order is granted.

The subsequent treatment of Lambert in Alberta does not clarify whether an underlying fear must be objectively reasonable, as this has not been a significant issue in the reported Alberta decisions. [ 36 ] The Redekop line of decisions out of Ontario provides persuasive authority for including an objective element to the assessment of fear.

Across the country, there does not appear to be a competing line of authority that supports a purely subjective test, though many decisions do not address the subjective versus objective issue. [ 37 ] The requirement of an objective basis for fear makes sense on a policy and logical basis.

It would be unjust that an individual could express a subjective fear of a person or group on frivolous grounds, and because the outcome would be dire (i.e. a party refuses to be questioned unless exclusion is granted), a litigant would be denied their inherent right to be present. [ 38 ] The case at bar is novel in a number of ways. Not only does it concern a fact scenario outside of the common exclusion order situations (such as family law matters, sexual assault cases, and instances where there are concerns over tailoring evidence), the issues are unique.

In most other cases, such as Kuefler , Lambert , Hykawy , and others, it was a contentious issue as to whether the examination process would actually be affected absent exclusion. It is not disputed in this case that the consequences to the questioning process will be significant if Mr. Kosowan is not excluded: Ms. Ferrier will not testify and none of the parties will have the benefit of her evidence. If a consequence to the questioning process is the overriding concern, then the Master was correct in concluding that Mr. Kosowan ought not to be present at Ms.

Ferrier’s Questioning. [ 39 ] However, the parties are at odds as to whether this consequence alone is sufficient to meet the Lambert test, given the argument that Ms. Ferrier’s fears may not be objectively grounded. This distinguishes this case from the other reported Alberta decisions, and poses difficulties in applying the Lambert framework, given its focus on prejudice to the questioning process and objectives. [ 40 ] In this case, while Ms. Ferrier’s subjective fear of Mr.

Kosowan may be extreme, and arguably not warranted by the information provided in connection with his application, I cannot conclude that there is no objective basis whatsoever. Mr. Kosowan’s admitted association with the Hells Angels in the past (whether or not it continues) and the charges that he faced (although he was not convicted of them) provide some objective basis to substantiate Ms. Ferrier’s concerns. [ 41 ] I conclude that, in light of all of the circumstances, the Master did not err in excluding Mr. Kosowan’s physical presence from Ms. Ferrier’s Questioning. The reasons Mr.

Kosovan has given for needing to meet Ms. Ferrier face to face at Questioning are questionable, given that she has admitted to driving the car and his lawyer will be present to assess her credibility in person. While Mr. Kosowan’s ability to do so will be somewhat limited because he will not be able to see her face, he will nonetheless be able to attend by telephone or teleconference and will have the benefit of hearing her responses to questions as she provides them. [ 42 ] Ms. Hof and Mr. Ferrier did not provide any evidence that their Questioning would be negatively affected by Mr. Kosowan’s presence.

I cannot conclude that the Master erred in refusing to exclude Mr. Kosowan from their Questioning, since it is only Ms. Ferrier who has expressed a desire that they not attend when her parents are questioned in connection with the Action. Conclusion [ 43 ] The appeals are dismissed. [ 44 ] Given the result, neither party is entitled to costs of the appeal. [ 45 ] As the Defendants were substantially successful before the Master, the Defendants should be awarded costs of the appearance before him.

However, since they were not entirely successful, costs ought to be reduced by one half from those which would be payable pursuant to

Schedule C. [ 46 ] If the parties are unable to agree on the quantum of costs, they are to contact my assistant within 30 days of the issuance of these Reasons to set a time at which the matter can be further addressed.

Heard on the 16 th day of December, 2016. Dated at the City of Edmonton, Alberta this 21 st day of April, 2017. D.L. Shelley J.C.Q.B.A. Appearances: Mr. C. Kenneth Kolthammer KBL Law LLP for the Plaintiff/Respondent Mr. Jeffrey R. Sermet Bryan & Company for the Defendants/Applicants