2023 MBKB 124, 2023 MBKB 124

Date: 20230824 Docket: CI 20-02-03849 (Brandon Centre) Indexed as: Kutryk v. Ehr Cited as: 2023 MBKB 124 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: STEPHANIE ALLISON KUTRYK ) ) Jacqueline G. Collins plaintiff (defendant by counterclaim), ) ) ) for the plaintiff - and - ) ) DALLAS WERNER EHR ) ) Rhea Majewski ) for the defendant defendant ) (plaintiff by counterclaim). ) ) ) ) Reasons for Decision: ) August 24, 2023 MASTER PATTERSON Introduction [ 1 ] This is a further case involving a motion which requests that an action be dismissed for delay. [ 2 ] At the same time, a competing motion has been filed which seeks provision of an affidavit of documents as well as to

schedule an examination for discovery (should the action not be dismissed for delay). Background [ 3 ] Stephanie Allison Kutryk (the “Plaintiff”) and Dallas Werner Ehr (the “Defendant”) were involved in an intimate and romantic relationship for a period of less than three years (it was not on a conjugal common law basis).

Their relationship ended in 2018. [ 4 ] A statement of claim (the “Claim”) was filed on behalf of the Plaintiff against the Defendant on December 19, 2019. [ 5 ] The relief sought within the Claim includes various heads of damages, such as but not limited to a request for damages based upon the torts of battery, assault, intentional infliction of emotional distress and conversion, as well as a request for liquidated damages, together with interest and costs.

[ 6 ] Upon the action being transferred by requisition to the Brandon Judicial Centre, the Statement of Defence and Counterclaim (the "Defence" and the "Counterclaim” where referred to separately) was filed on behalf of the Defendant on April 28, 2020. [ 7 ] The C ounterclai m contains a request for relief under various heads of damages, such as but not limited to damages based upon the torts of trespass to goods and conversion, as well as trespass to land, along with interest and costs. [ 8 ] On July 23, 2020, the D efence to Counterclaim was then filed on behalf of the P laintiff.

Defendant’s Motion [ 9 ] A motion was filed on behalf of the D efendant on January 27, 2023 (the “Defendant’s Motion”). [ 10 ] The D efendant’s M otion request s the following relief:

a) an order dismissing the Claim for delay;

b) an order directing that there shall be no examination for discovery held until such time as the D efendant’s M otion has been determined; and

c) costs. [ 11 ] In support of the D efendant’s Motion, the following material has been filed:

a) Affidavit of Michelle Pardy, sworn January 25, 2023 (the “Pardy A ffidavit”); and

b) Affidavit of counsel for the D efendant sworn March 31, 2003 (the “Affidavit”). Plaintiff’s Motion [ 12 ] On February 23, 2023, a motion was also filed on behalf of the Plaintiff (the “Plaintiff’s Motion"). [ 13 ] The relief sought within the Plaintiff’s Motion is as follows:

a) an order compelling the D efendant to produce a sworn affidavit of documents, including copies of all S chedule "A" documentation;

b) an order directing that a date for an examination for discovery of the D efendant be scheduled ; and

c) costs. [ 14 ] The following material h as been filed in support of the P laintiff’s M otion:

a) Affidavit of the Plaintiff affirmed February 23, 2023 (the "Plaintiff’s Affidavit”); and;

b) Affidavit of Holly Lowe, sworn March 31, 2023 (the “Lowe Affidavit”). [ 15 ] T he D efendant’s M otion and the P laintiff’s M otion were scheduled to be heard together and determined at th is hearing. Both counsel filed detailed motion briefs, which was appreciated by the Court.

Preliminary Issues Objection of the Defendant to late filing of the Lowe Affidavit [ 16 ] Counsel for the D efendant submits that the L owe A ffidavit should not be considered by the Court when determining these two motions, as it was filed "late" (on April 4, 2023, just 2 days prior to th is hearing) . [ 17 ] No request for an adjournment was made o n behalf of the D efendant, in order to have further t i me to consider the L owe A ffidavit, or to contemplate filing affidavit evidence in response from the D efendant. [ 18 ] I n the event the Defendant's Motion is not successful , however, it was confirmed that the Defendant is not opposed to scheduling an examination for discovery, provided it is held in-person and is not scheduled immediately. [ 19 ] Counsel for the P laintiff responded by readily admitting that the Lowe Affidavit was filed late in consideration of T he Court of King’s B ench Rules , Man.

R eg. 553/88 (the " Rules "). Nonetheless, counsel for the P laintiff submits that the evidence within the L owe A ffidavit is relevant and "flows to the issues raised" within the two motions before the Court. [ 20 ] S hould the D efendant’s M otion be unsuccessful, the P laintiff is seeking an order to compel the D efendant’s attendance at an examination for discovery to be scheduled promptly (with discoveries to be conducted virtually as opposed to in-person).

[ 21 ] O nly one hour had been scheduled for th is hearing, and there was a further preliminary issue raised by counsel for the Plaintiff.

As a result, I reserved concerning this initial preliminary issue. [ 22 ] Now that I have had an opportunity to further reflect, I am not prepared to disregard the L owe A ffidavit. [ 23 ] First and foremost, I rely upon the following Rules for purposes of considering the Lowe Affidavit as evidence for the Plaintiff's Motion: General principle 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Proportionality 1.04(1.1) In applying these rules in a proceeding, the court is to make orders and give directions that are proportionate to the following: (

a) the nature of the proceeding; (

b) the amount that is probably at issue in the proceeding; (

c) the complexity of the issues involved in the proceeding; (

d) the likely expense of the proceeding to the parties. … 2.03 The court may , only where necessary and in the interest of justice, dispense with compliance with any rule at any time. (emphasis added) [ 24 ] In addition, the evidence within the Lowe Affidavit is of relevance as it confirms that Lowe is a registered marriage and family therapist, who has been treating the Plaintiff.

Attached as Exhibit “A” to the Lowe Affidavit is a copy of Lowe’s letter to counsel for the Plaintiff dated March 31, 2023, which outlines her recommendations with respect to how to conduct an examination for discovery given the Plaintiff's current situation (Lowe’s advice being that the parties should not be in the presence of each other at discoveries). [ 25 ] Accordingly, leave is granted and the Lowe Affidavit is to be admitted into evidence.

Expungement of the Affidavit (or portions thereof) [ 26 ] The second preliminary issue raised by counsel for the P laintiff is with respect to counsel for the Defendant preparing and filing the A ffidavit . [ 27 ] Counsel for the Plaintiff submits that it is not appropriate for a lawyer to provide an affidavit in proceedings before the Court, where that lawyer represents one of the litigants, and the issues addressed within the affidavit are contentious. [ 28 ] In the event the Court is not prepared to strike the Affidavit in its entirety, at a minimum, counsel for the Plaintiff asserts that certain portions of the Affidavit should be expunged. [ 29 ] Counsel for the Defendant disagrees with the Plaintiff's position, and submits that her evidence is relevant to the two motions before the Court. [ 30 ] The Code of Professional Conduct of the Law Society of Manitoba (the “ Code ”) provides as follows at

section 5.2-1 (along with commentary): Submission of Evidence 5.2-1 A lawyer who appears as advocate must not testify or submit his or her own affidavit evidence before the tribunal unless permitted to do so by law , the tribunal, the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted. Commentary [1] A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination or challenge.

The lawyer should not, in effect, appear as an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate’s right to cross-examine another lawyer , however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.

(emphasis added) [31] Shearer v. Hood, 2007 MBQB 117 (“Shearer”) is a Manitoba decision where one of the lawyers involved in that casefiled their own affidavit. The Honourable Master Sharp expunged the affidavit of counsel in its entirety. In addition to referring to theCode (as it then existed), Master Sharp included a passage from a well-recognized and regarded authority (at paragraph 5 of herdecision): [5] The Law of Evidence in Canada, 2nd ed. Sopinka, Lederman and Bryant, have the following comments on the issue: §13.42 Lawyers stand on a somewhat different footing.

They are competent in law to appear as witnesses in an action in which they actas counsel. Nevertheless, courts have been reluctant to allow a lawyer who has sworn an affidavit to appear as counsel in thatmatter. It would place the court in the untenable position of having to assess the credibility of a counsel who has given evidence.

Accordingly, the practice has developed of forbidding a lawyer to appear as both counsel and witness in a motion or an action. (emphasis added) [32] In reliance upon the aforementioned provision and commentary from the Code, as well as the reasoning from Shearer, I agreewith counsel for the Plaintiff. Counsel for the Defendant, and any lawyer for that matter, should not be filing their own affidavit,especially in contested proceedings. By doing so in the case at bar, counsel for the Defendant could be cross-examined upon heraffidavit evidence.

Counsel for the Defendant could have even been directed to withdraw if she became a witness. Ultimately, it is apractice that is not to be condoned by the Court. [33] As the saying goes, “hindsight is 20-20”, and there is obviously more opportunity at this stage to consider options versus being inthe heat of the moment and preparing for an upcoming hearing. Nonetheless, and regardless of time constraints, there were otheravenues available to counsel for the Defendant, such as:

a) Request an adjournment of the hearing to provide sufficient opportunity to put this evidence properly before the Court; or

b) Obtain a letter or email from Mat Schwartz (“Schwartz”), which could be attached to an affidavit from a legal assistant workingwith counsel for the Defendant, if an affidavit from Schwartz could not be prepared and signed for filing in advance of this hearing. [34] Each of the above noted options, while not ideal, would have been preferable to counsel for the Defendant filing and serving herown affidavit evidence. [35] Based upon the foregoing, I have decided to strike the Affidavit in its entirety for purposes of this hearing. [36] All of this being stated, the Court does have an appreciation of what is or is not appropriate evidence, regardless if the paragraphsor clauses of concern are not expunged. [37] It is also not proportionate to devote considerable time to expungement issues, at the peril of the substantive issues to bedetermined.

Expungement motions (particularly in the Family Division) had developed into what was generally referred to as a "cottageindustry", and resulted in amendment to the Rules and applicable procedures. [38] For completeness sake, however, and apart from my decision to expunge the entire Affidavit, a brief review of the paragraphsthat have been called into question by the Plaintiff would be appropriate.

Paragraph 3 [39] Within this paragraph, counsel for the Defendant provides evidence as to what she learned from having a discussion withSchwartz, a criminal defence lawyer who had represented the Defendant in criminal proceedings where the Plaintiff was the complainant(the evidence provided was that criminal charges facing the Defendant were stayed on the date scheduled for trial). [40] Counsel for the Plaintiff submits that not only is the foregoing evidence hearsay, it is not supported by any official record ortranscript of proceedings confirming what exactly occurred and was the outcome of the above noted criminal proceedings.

In addition,counsel for the Plaintiff asserts that paragraph 3 is extremely prejudicial, and that it should be expunged completely. [41] In response, counsel for the Defendant asserted that the evidence within this paragraph was not provided for its truth, but rather,to outline the details that she had become aware of in relation to the Defendant. [42] Counsel for the Defendant acknowledged that an affidavit from Schwartz, or a copy of the transcript from the above referencedcriminal proceedings, would have been preferable, although she indicated that there was insufficient time for her to take these steps inpreparation for this hearing.

Counsel for the Defendant further advised that she does not make it her practice to file her own affidavit inproceedings where she is counsel for one of the parties. [43] If I had not decided to expunge the Affidavit in its entirety, I would have expunged paragraph 3, or alternatively, simply not

relied upon this evidence in the absence of an official record or transcript (and when counsel for the Defendant has acknowledged this evidence was not provided for its truth).

Paragraph 4 [ 44 ] This paragraph contains evidence that counsel for the Defendant had never been served with a filed copy of the Defence to Counterclaim (she did, however, acknowledge receipt of draft unfiled copy in April of 2020). [ 45 ] Counsel for the Plaintiff submits that this entire paragraph ought to be expunged, and that there were other methods by which to present this evidence, if it was necessary from the perspective of the Defendant. [ 46 ] Any dispute as to whether the Defendant was served with a filed version of the Defence to Counterclaim could have been clarified with reference to the Court of King’s Bench Registry (the “KB Registry”).

A search of Registry would reveal if this pleading had actually been filed. If so, a copy could be obtained from the Court (while it is not the responsibility of counsel for the Defendant to do so, it would have, practically and inexpensively, resolved this issue sometime ago). Determining if an affidavit of service had ever been filed in relation to the Defence to Counterclaim would also have assisted in settling any uncertainty in this regard. [ 47 ] While I do not disagree with the argument made on behalf of the Plaintiff, paragraph 4 could have remained, had I not decided to expunge the entire Affidavit.

I say this because what is more pressing at this time is for counsel on behalf of the Plaintiff to ensure that counsel for the Defendant has been served with a filed copy of the Defence to Counterclaim. Paragraph 6 [ 48 ] Counsel for the Defendant cited concerns within this paragraph with respect to the validity and reliability of documentation listed within the Plaintiff’s Affidavit of Documents.

As an illustration, it was asserted that dates and times noted upon copies of photographs should not be considered as being reliable, as these details can be modified (with the delay in moving these proceedings forward exacerbating this concern). [ 49 ] According to counsel for the Plaintiff, this particular paragraph does not contain evidence. Rather, it represents legal argument from counsel for the Defendant, and should be expunged fully. [ 50 ] Once again, I agree with counsel for the Plaintiff. Paragraph 6 of the Affidavit contains argument, which has no place within an affidavit.

In the absence of expunging the entire Affidavit as I have ordered, I would have expunged paragraph 6. Alternatively, paragraph 6 could have remained, although I would not have relied upon this evidence.

Paragraph 7 [ 51 ] The evidence provided within this paragraph involves a conversation between counsel, which included counsel for the Defendant confirming that she required instructions to proceed with a delay motion. [ 52 ] Counsel for the Plaintiff articulated that aside from there being other means of putting this evidence before the Court if deemed necessary (such as through an affidavit from a legal assistant working with counsel for the Defendant), this paragraph also contains legal argument with respect to limitation date issues, and whether certain allegations of the Plaintiff may be statute barred. [ 53 ] Quite simply, paragraph 7 of the Affidavit contains improper evidence.

In the event the Affidavit had not been expunged, paragraph 7 would be struck (or could have remained, but there would have been no reliance upon this evidence). [ 54 ] I should note that while paragraph 8 of the Affidavit was not raised specifically by counsel for the Plaintiff, the exact same concerns outlined on behalf of the Plaintiff in relation to paragraph 7 could be applied to paragraph 8 as well. Paragraphs 9, 10, 11 and 12 [ 55 ] The evidence contained within the above noted paragraphs that is in dispute can be summarized as follows:

a) Within paragraph 9 of the Affidavit, counsel for the Defendant provides evidence in relation to the ability of the Defendant to review the Plaintiff’s Affidavit of Documents;

b) At paragraph 10 of the Affidavit, counsel for the Defendant delves into the Defendant’s personal circumstances and the injuries that he suffered from being in a motor vehicle collision, as well as concerns with respect to the Defendant’s capacity and ability to provide instructions;

c) Within paragraph 11 of the Affidavit, counsel for the Defendant describes the conversations she has had with the Defendant about his medical status; and

d) At paragraph 12 of the Affidavit, there is reference to the two exhibits that are attached, namely, Exhibit “A”, which is a report from Dr. Timothy Bolton, dated March 21, 2022, and Exhibit “B”, which is a letter from Dr. Craig Yuri, a clinical psychologist at the Brandon Clinic, dated March 15, 2023. [ 56 ] Counsel for the Plaintiff takes the position that separate and apart from her concerns about hearsay, it would have been appropriate for the medical evidence to have been presented through an affidavit from each of Dr. Bolton and Dr. Yuri respectively.

[57] It was submitted by counsel for the Plaintiff that not only is it completely unacceptable for counsel for the Defendant to provideher own evidence, it is equally objectionable that the aforementioned medical reports are attached to and were made exhibits of theAffidavit. [58] In response, counsel for the Defendant advised that she had made her best efforts to put the two above noted medical reportsbefore the Court for consideration, given the timing of her receipt of this documentation. [59] In Ladco Company Limited v.

The City of Winnipeg, 2020 MBQB 101 ("Ladco"), the Honourable Justice Edmond provided athorough review of the law with respect to admissibility of expert evidence (commencing at paragraph 80). Justice Edmond alsocommented specifically about affidavits and reports from experts, noting the following (within paragraphs 85 and 86 of Ladco): Expert Report Attached to Affidavits of Non-expert There are numerous authorities in Manitoba and Ontario that stand for the proposition that it is improper to introduce expertevidence by attaching an expert report to the affidavit of a non-expert. (see Bartmanovich v.

Manitoba, 2001 MBQB 190, 161Man.R. (2d) 1; Deslauriers v. Bowen, [1994] O.J. No. 2198; Lexogest Inc. v. Manitoba (Attorney General), (MBQB), [1990] M.J. No. 353; Dutton v. Hospitality Equity Corp., [1994] O.J. No. 1071; Manitoba Hydro Electric Board; Towers Ltd.v. Quinton’s Cleaners Ltd., 2008 MBQB 34, 237 Man.R. (2d) 100; Weber v. Yee et al., 2001 MBQB 169, 158 Man. R. (2d) 1 atparas. 15-17; Dutton v. Hospitality Equity Corp. (1994), 26 C.P.C. (3d) 209 at 212 (Ont. Ct. J. (Gen. Div.); Riverside DevelopmentsBobcaygeon Ltd. v. Bobcaygeon (Village), [2001] O.J. No. 2968 (Sup. Ct. J.) (QL); Ewaskiw v.

Zellers Inc., (ONSC), 40 O.R. (3d) 795 (Gen. Div.); Beland v. Kieffer, [2022] O.J. No. 709 (Sup. Ct. J.) (QL); D.W. v. D.W., [1998] O.J. No. 2927 (Gen.Div.) (QL); Mugford v. Canada Life Assurance Co., [1998] O.J. No. 1761 (Gen. Div.) (QL) and Berscheid v. Federated Co-operativesLtd., 2017 MBQB 25, [2017] M.J. No. 31) In essence, the authorities establish that expert reports attached as exhibits to an affidavit of a non-expert are inadmissible asthey constitute hearsay evidence and the opinion expressed by the expert cannot be tested by cross-examination.

Therefore, it is unfairand prejudicial to find that such evidence is admissible. (emphasis added) [60] Given the importance of the Defendant’s personal and medical situation, as it relates to his capacity and ability to provideinstructions, as well as to participate effectively at an examination for discovery or otherwise, I concur with counsel for the Plaintiff. If Ihad not decided to expunge the Affidavit entirely, the aforementioned evidence within paragraphs 9 through 12 of the Affidavit wouldhave been expunged (it ought to have been presented pursuant to affidavits from Dr. Bolton and Dr. Yuri respectively).

At a minimum,and if not formally expunged, I would not have relied upon this evidence. Defendant’s Motion (Delay by Plaintiff)

Summary of Defendant’s Position [61] The Defendant’s Motion is not premised upon Rule 24.02(1), where if three or more years have passed without a significantadvance in an action, the Court must dismiss the action (subject to certain limited exceptions). [62] Instead, the Defendant is relying upon Rule 24.01(1), which provides as follows: Dismissal for delay 24.01(1) The court may, on motion, dismiss all or part of an action if it finds that there has been delay in the action and that delay hasresulted in significant prejudice to a party.

Presumption of significant prejudice 24.01(2) If the court finds that delay in an action is inordinate and inexcusable, that delay is presumed, in the absence of evidence to thecontrary, to have resulted in significant prejudice to the moving party. What constitutes inordinate and inexcusable delay 24.01(3) For the purposes of this rule, a delay is inordinate and inexcusable if it is in excess of what is reasonable having regard to thenature of the issues in the action and the particular circumstances of the case. [63] In The Workers Compensation Board v.

Ali, 2020 MBCA 122 (“WCB”), a decision authored by the Honourable

Justice Burnett, the Manitoba Court of Appeal provided a detailed review of Rule 24.01 (commencing at paragraph 39): The Accepted Approach in Manitoba [39] I will begin with the obvious. There are two issues to be addressed on a motion to dismiss for delay pursuant to r 24.01. The first is whether there has been delay; the second is whether the delay has resulted in significant prejudice (r 24.01(1)). [40] When assessing the issue of delay, the court must decide whether it has been inordinate and inexcusable.

The wording isconjunctive; the moving party has the onus to establish both requirements. [41] In keeping with Oliver, the proper approach to be taken when deciding whether a delay is “inordinate and inexcusable” isto determine whether the delay is “in excess of what is reasonable having regard to the nature of the issues in the action and theparticular circumstances of the case” (r 24.01(3)).

This involves consideration of the first four factors identified in Eadie, as wellas any other relevant circumstances, and would include a consideration of the current status of the litigation in comparison to areasonable comparator (discussed below) and the role of each party in the overall delay. [42] Although the moving party has the onus to prove that the inordinate delay is inexcusable, “[a]s a rule, until a credibleexcuse is made out, the natural inference would be that [inordinate delay] is inexcusable” (Allen v McAlpine (Sir Alfred) & Sons,Ltd, [1968] 1 All ER 543 at 561 (CA)).

Appellate courts across Canada have adopted this principle. Thus, upon inordinate delaybeing established, the onus upon the moving party to establish inexcusable delay will essentially be met, and the plaintiff will becalled upon to justify the delay (see Ross v Crown Fuel Co Ltd et al (1962), (MB CA), 37 DLR (2d) 30 at 50 (ManCA)).

The issue is then whether the nature and quality of the evidence provides the judge with a clear and meaningful explanation forthe delay in the particular circumstances of the case. [43] If the delay is found to be inordinate and inexcusable, significant prejudice to the moving party is presumed (see r24.01(2)).

The presumption is rebuttable. [44] In my view, where the delay is found to be inordinate and inexcusable, the presumption of significant prejudice is meant toavoid further litigation on the issue of inherent prejudice and its strength in a given case. [45] If the delay is not inordinate and inexcusable, the court may nevertheless dismiss the action if the delay has resulted insignificant prejudice.

In these circumstances, there is no presumption of prejudice, and significant prejudice must be proved bythe moving party. [46] Finally, even if the moving party establishes delay and significant prejudice, the court may refuse to dismiss the action. The decision is an exercise of judicial discretion (see Oliver CA at para 4). That said, it is also my view that this residual discretionshould only be exercised in exceptional circumstances where there is a compelling reason, and the compelling reason must be clearlyarticulated.

In the absence of a compelling reason, a decision not to dismiss an action would be an injustice. (emphasis added) [64] Commencing at paragraph 84 in WCB, Justice Burnett also noted the following in relation to the “culture shift” towards delaybefore the Court: [84] I conclude with a few important observations about delay in civil matters. [85] Almost seven years ago, the Supreme Court of Canada made it clear that a shift in culture is required, that when courtcosts and delays become too great, people simply give up on justice, and that a fair process is illusory unless it is also accessible—proportionate, timely and affordable (see Hryniak v Mauldin, 2014 SCC 7 at paras. 25-28).

While the Court in R v Jordan, 2016SCC 27, was concerned with timely proceedings in the criminal law context, many of its observations also apply in the civil law context.

In Jordan, the Court recognized that fair trial interests are affected because the longer a trial is delayed, the more likely it is that a partywill be prejudiced in mounting a defence owing to faded memories, unavailability of witnesses, or lost or degraded evidence, and thattimely trials are important to maintain overall public confidence in the administration of justice (see paras 20, 25). [86] As my colleague Mainella JA emphasised in Glenwood Label & Box Mfg Ltd v Brunswick Label Systems Inc et al, 2019 MBCA12 at para 5, there is a strong public interest in promoting the timely resolution of disputes in our civil justice system.

In Letang v HertzCanada Limited, 2015 ONSC 72, Myers J observed (at paras 18-19): . . . The Supreme Court of Canada has ruled that the goal of achieving a fair and just civil dispute resolution process becomes illusoryunless it is proportionate, timely, and affordable. …There are real people behind lawsuits – even claims involving sophisticatedcorporations. These people are entitled to timely justice. Because the civil justice system does not deliver timely, affordable andproportionate justice, people are looking elsewhere for dispute resolution to the detriment of the public and the common law.

Fixing thecivil justice system requires a culture shift on the part of the players in the system. . . . [87] The time has come to stop paying lip service to the phrase “justice delayed is justice denied”. Unreasonable delays in civilmatters can no longer be tolerated for numerous reasons, but chiefly because they seriously undermine access to justice. (emphasis added) [65] Based upon WCB, it is submitted on behalf of the Defendant that:

a) Where a moving party establishes that delay in a proceeding is inordinate, the onus to demonstrate that such delay is also

inexcusable will have been satisfied, resulting in a shift in onus, with the party who initiated the action being called upon to justify thedelay;

b) Where the delay involved is determined to be inordinate and inexcusable, significant prejudice is presumed (this presumptioncapable of being rebutted by the party who filed the action); and

c) If there has been delay that is inordinate and inexcusable, and the presumption of significant prejudice has not beensatisfactorily rebutted, the Court can dismiss the action in accordance with Rule 24.01(1). [66] In addition to WCB, counsel for the Defendant referred to Duncan v.

Magnusson, 2023 MBKB 33 (“Duncan”), arecent decision of the Honourable Justice Thomson where a dismissal for delay motion was successful. [67] Upon concluding that there was justification for dismissing the answer and petition for divorce of the respondent pursuant toRule 24.02(1), or the so called “drop dead rule”, Justice Thomson proceeded in Duncan to further find that "there has been inordinateand inexcusable delay on the respondent’s

part in advancing her claims in the fuller history of this litigation" (at paragraph 24). As such,Justice Thomson determined in Duncan that the action commenced pursuant to the pleadings of the respondent could also be dismissedfor delay in reliance upon Rule 24.01(1). [68] In the case at bar, counsel for the Defendant submits that there has been inordinate and inexcusable delay by the Plaintiff inconnection with the Claim, which has resulted in significant prejudice to the Defendant, the particulars of which can be summarized asfollows:

a) As set forth within the Pardy Affidavit, it was on April 24, 2020 when counsel for the Plaintiff advised counsel for theDefendant that a draft copy of the Plaintiff’s Affidavit of Documents would be provided the following week (including copies of thedocumentation referenced within

Schedule "A" thereto); unfortunately, a draft copy of the Plaintiff’s Affidavit of Documents was notreceived by counsel for the Defendant until December of 2020;

b) The photographs, text messages and other documentary evidence that has been disclosed, and is to be relied upon by thePlaintiff, may not be reliable;

c) Memory and recollections of witnesses can fade with time, which is of heightened concern when, according to counsel for theDefendant, this is a “she said - he said” case;

d) In a situation where the allegations raised by the Plaintiff against the Defendant are already dated, and there is then inordinateand inexcusable delay experienced, significant prejudice has resulted for the Defendant by the shear volume of time that has elapsed,without there even being a trial date scheduled as of yet;

e) Even though the Plaintiff had been awaiting receipt of documentation from the RCMP, it had been received and was within thepossession of counsel for the Plaintiff for some time prior to a draft copy of the Plaintiff’s Affidavit of Documents being forwarded tocounsel for the Defendant;

f) Counsel for the Defendant submits that if the Claim is not dismissed for delay, there may be a necessity to amend the Defenceas it relates to potential limitation date issues (based upon her review of certain

Schedule "A" documentation that has been disclosed onbehalf of the Plaintiff);

g) With respect to the evidence at paragraph 10 of the Plaintiff’s Affidavit (during her pregnancy, she was unable to takeprescribed medication for post-traumatic stress disorder (“PTSD”), which impacted her overall functioning), counsel for the Defendantargued that there was no independent medical evidence presented to substantiate the Plaintiff’s evidence in this regard (other than thedetails contained within the Lowe Affidavit, which it was argued should not be considered as it was filed late); and

h) Counsel for the Defendant also made reference to there being a stay of proceedings entered in relation to prior criminalproceedings against the Defendant where the Plaintiff was the complainant (although it is acknowledged on behalf of the Defendant thatin June of 2019, he was convicted of common assault against the Plaintiff). [69] Counsel for the Defendant has further argued that the decisions relied upon by the Plaintiff (where dismissal for delay motionswere unsuccessful) can be distinguished. In particular:

a) Forsythe v. Castelane et. al., 2023 MBKB 18 (“Forsythe”), is a case which involved a determination that there wasactually a period of only thirteen months delay at issue (at paragraph 43), versus the case at bar where the Defendant contends the periodof delay was a period of thirty three months; and

b) In City Sheet Metal Co. Ltd. v. Euramax Canada Inc., 2021 MBQB 118 (“City Sheet Metal”), the longest periodof inaction in that case was determined to be just fifteen months (at paragraph 33). [70] From the Defendant's standpoint, and even if there was nothing done to move forward with the Counterclaim, it does not absolvethe Plaintiff from her inaction concerning the Claim. [71] Ultimately, counsel for the Defendant submits that the Plaintiff has put forward a weak and tenuous case within the Claim. [72] In the event that the Claim is not dismissed for delay, however, counsel for the Defendant advised that she will require areasonable period of time in order to carefully review the

Schedule “A” documentation referenced within the Plaintiff’s Affidavit ofDocuments, commence preparation of an affidavit of documents for the Defendant, and consider the Defendant’s circumstances as itrelates to his capacity to provide instructions as well as to participate in discoveries.

Summary of Plaintiff’s Position [ 73 ] It is submitted by counsel for the Plaintiff that in consideration of the test set forth within WCB , the Defendant’s Motion should fail. [ 74 ] At the outset, counsel for the Plaintiff asserted that that there has not been inordinate or inexcusable delay on the part of the Plaintiff in these proceedings. In particular:

a) On July 6, 2019, the Defendant was convicted of common assault against the Plaintiff, pursuant to

section 266 of the Criminal Code . A request was made on behalf of the Plaintiff to the RCMP for copies of any documentation in relation to this conviction that could be made available and disclosed, although there was no response from the RCMP until materials were received by counsel for the Plaintiff on or about November of 2020.

b) According to counsel for the Plaintiff, the Defendant's assault conviction gives rise to a “ prima facie ” case for the Plaintiff based upon the torts of assault and battery, such that liability of the Defendant should not be an issue in this regard.

c) From the Plaintiff’s perspective, "the start of the clock" for any consideration of delay should be July 23, 2020 when the Defence to Counterclaim was filed (not April 20, 2020 as articulated by counsel for the Defendant).

d) It is submitted that this is not a simple case, and for counsel on behalf of the Defendant to attempt to categorize the action in that manner is not accurate. Separate causes of action are alleged, including assault, battery, intentional infliction of emotional distress and conversion, as well as in relation to a loan made by the Plaintiff to the Defendant, between April of 2017 and December of 2018, for an amount totaling $65,000.00.

e) Counsel for the Plaintiff noted that because the parties were in an intimate relationship, there is an exception that becomes operative pursuant to The Limitation of Actions Act , C.C.S.M. c. L150 (the “ MB LAA ”). In accordance with section 18(1) (b)(

i) of the MB LAA , a proceeding may be commenced, at any time, if it is alleged that the person committed an assault against a partner in an intimate relationship.

f) There is no direct evidence from the Crown as to why charges against the Defendant (where the Plaintiff was the complainant) were stayed on or about March of 2023 (these criminal proceedings being in addition to the prior conviction of the Defendant for assault against the Plaintiff in July of 2019).

g) Within the Plaintiff’s Affidavit, she describes suffering from PTSD, which it is contended is the result of the assaults that were committed against her by the Defendant. The Plaintiff further explains that she underwent a difficult pregnancy, and was unable to take certain medications that may have been of assistance for her PTSD. The Plaintiff also confirmed that she continues to attend therapy and take medications as prescribed, with the Lowe Affidavit providing supporting evidence as to the Plaintiff’s present circumstances.

h) It was argued by counsel for the Plaintiff that the aforementioned difficulties experienced by the Plaintiff are more than every day stress or litigation anxiety.

i) As a result of suffering from PTSD, as well as having other challenging life circumstances as described, the Plaintiff says she experienced difficulty reviewing the documentation assembled concerning this case, and assisting her counsel with respect to preparing the Plaintiff’s Affidavit of Documents.

j) It was in November of 2022 when the Plaintiff reviewed a draft copy of the Plaintiff’s Affidavit of Documents that had been prepared on her behalf.

k) A draft copy of the Plaintiff’s Affidavit of Documents was forwarded to counsel for the Defendant on December 19, 2022.

l) On December 23, 2022, copies of the

Schedule "A" documentation set forth within the Plaintiff’s Affidavit of Documents was sent to counsel for the Defendant.

m) When providing copies of the

Schedule "A" documentation, counsel for the Plaintiff sought out the availability counsel for the Defendant in order to proceed with scheduling an examination for discovery.

n) On January 13, 2023, the Plaintiff’s Affidavit of Documents, together with copies of all

Schedule "A" documentation noted therein, was served upon counsel for the Defendant.

o) Notice of Examination was also served upon counsel for the Defendant, which confirmed that an examination for discovery had been scheduled for February 24, 2023 (with the discoveries to be conducted via Zoom). On January 26, 2023, conduct money was forwarded to the Defendant via his counsel. [75] It was further disputed by counsel for the Plaintiff that there has been significant prejudice, or any prejudice, to the Defendant in these proceedings, in consideration of the following:

a) Counsel for the Plaintiff raised the reply to her from counsel for the Defendant on April 24, 2020 (advising that it would take quite some time to assemble documentation for the Defendant, given his health situation, inability to drive, social distancing requirements, and the reality that she was going to need to obtain historical bank records as well as tax notices of the Defendant).

Even with counsel for the Plaintiff acknowledging that there may be some time involved to finalize an affidavit of documents for the Defendant, it was noted that counsel for the Defendant has not supplied counsel on behalf of the Plaintiff with a draft or even a preliminary working copy of an affidavit of documents for the Defendant, let alone any

Schedule “A” documents thereto.

b) While asserting there may be some witnesses with faded memories and recollections, there is no evidence provided to support

this general position articulated by counsel on behalf of the Defendant.

c) The documentation set forth within

Schedule “A“ to the Plaintiff’s Affidavit of Documents includes but is not limited to photographs of her injuries, records from the Crisis Response Centre with respect to her treatment, and documentation such as rental records and bank statements. No specific evidence has been presented by the Defendant to form a basis for suggesting that the veracity or reliability of this documentation may have been impacted or impugned. It is nothing more than conjecture according to counsel for the Plaintiff.

d) While Rule 24.02(1) is not being relied upon by the Defendant, it is nonetheless argued on behalf of the Plaintiff that serving the Plaintiff’s Affidavit of Documents was a significant advance in these proceedings, citing the decision of my colleague, the Honourable Master Clearwater (as she then was), in Nygard International Partnership v. Canadian Broadcasting Cor poration et al , 2020 MBQB 71 (“ CBC ”), at paragraph 36 thereof.

e) Provision of the Notice of Examination to counsel for the Defendant was also argued by counsel for the Plaintiff to be a meaningful step forward in this litigation.

f) Even if delay is determined, and it is calculated to be from April of 2020, and not July of 2020, the result is still a period of time that is less than three years.

g) Counsel for the Plaintiff also emphasized that unlike Rule 24.02(1), it is not mandatory that the Court dismiss an action in reliance upon Rule 24.01(1), even if inordinate and inexcusable delay is established which resulted in prejudice to the Defendant. [76] Within the frequently cited decision of the Manitoba Court of Appeal in Law Society (Manitoba) v. Eadie , 1988 CarswellMan 157 (“ Eadie ”) , a case that is referenced and relied upon in WCB , it was stated as follows by the Honourable Justice Twaddle (commencing at paragraph 16): 16. Amongst the matters which should be taken into account on a motion such as this are: (

i) The subject matter of the litigation; (ii) The complexity of the issues between the parties; (iii) The length of the delay; (iv) The explanation for the delay; and (

v) The prejudice to the other litigant. … [77] At paragraph 22 in Eadie , Justice Twaddle further noted that: 22.

It may be that, on application to dismiss an appeal for undue delay, the merits of the appeal should be taken into account. … I am of the view that, in an appropriate case, this court is entitled to review the merits of the appeal as one factor relevant to the motion to dismiss it. (emphasis added) [78] Based upon Eadie , counsel for the Plaintiff has asserted that there are insufficient grounds to dismiss the Claim for delay (in reliance upon the factors summarized within paragraphs 74 and 75 of this decision). [79] Counsel for the Plaintiff has encouraged the Court to focus upon the decision of the Honourable Justice Martin in F orsythe , where a purchaser of real property incurred significant expenses to attend to necessary repairs, and commenced an action against the realtor, broker and vendor.

While the pleadings closed within approximately seven months of commencement of the action in Forsythe (confirmed at paragraph 7 ), Justice Martin noted that there had been a period of thirty one months from the date of the last significant advance to the date of filing the dismissal motion. [80] Upon considering the explanations offered by the plaintiff, and the reality that the defendant had been essentially silent throughout the time period in question, Justice Martin determined in Forsythe that the period of delay in question should be considered to be much less ( only thirteen months). [81] As confirmed at paragraphs 45 and 46 in Forsythe , Justice Martin decided that the delay complained of by the d e fendant was not inordinate and inexcusable, and did not result in significant prejudice .

Accordingly, t he defendant’s motion, pursuant to Rules 24.01(1) and 24.02(2), was dismissed.

[82] City Sheet Metal is a further decision that is being relied upon by the Plaintiff, and involved an allegation that the defendant inthat case wrongfully terminated a distributorship agreement with the plaintiff.

The Honourable Justice Edmond noted at paragraph 31 inCity Sheet Metal that it took approximately five years to commence the action, with the delay motion filed almost eight years after thestatement of claim was filed. [83] Upon review of the issues and conduct of the parties in City Sheet Metal, Justice Edmond determined that the longest period ofinaction in that case should only be considered to be fifteen months (at paragraph 33).

On this basis, Justice Edmond decided that he wasnot satisfied the defendant had met its onus to demonstrate the delay in question was inordinate and inexcusable, and that significantprejudice was suffered by the defendant (at paragraph 39). [84] Counsel for the Plaintiff has highlighted that within City Sheet Metal (at paragraph 34), Justice Edmond determined that whenassessing delay, one must consider the role that each party played in any overall delay. [85] By extension, it is submitted by counsel for the Plaintiff that the Court ought to consider the reality that in the case at bar, theDefendant did not move forward with the Counterclaim whatsoever. [86] Counsel for the Plaintiff also relies upon the decision in Krasulja v.

Manaigre, 2021 MBQB 131 (“Krasulja”), wherethe Honourable Justice Greenberg determined that a statement of claim and a counterclaim are inextricably linked. [87] As earlier noted, counsel for the Plaintiff asserts, that in the case at bar, no steps were taken to advance the Counterclaim by theDefendant once it was filed. [88] With respect to the case law referred to by counsel for the Defendant, it was also articulated by counsel for the Plaintiff thatDuncan is a decision of the Family Division of this Court, and should not be viewed as binding or persuasive in these proceedings.

Analysis Inordinate and inexcusable delay? [89] Pursuant to WCB, and as summarized by Justice Martin within Forsythe, the initial issue for me to determine is whether therehas there been inordinate and inexcusable delay on the part of the Plaintiff with respect to the action commenced by the Claim? [90] For purposes of the Defendant’s Motion, the Defendant bears the onus to establish that any delay by the Plaintiff concerning theClaim was inordinate (if determined, the onus to establish that any delay was inexcusable will also be satisfied). [91] Delay will be determined to be inordinate and inexcusable if it exceeds “what is reasonable having regard to the nature of theissues in the action and the particular circumstances of the case” pursuant to Rule 24.01(3).

Consideration of the factors identifiedin Eadie is necessary. [92] The evidence confirms there had been a prolonged period of inactivity with this proceeding. The Defence to Counterclaim wasfiled on July 23, 2020.

Nothing further proceeded before this Court until filing of the Defendant’s Motion on January 27, 2023 (a periodof approximately thirty one months). [93] Even if provision of a copy of the Plaintiff’s Affidavit of Documents to counsel for the Defendant is determined to represent asignificant step in this litigation, it occurred on December 19, 2022, such that the period of inactivity would be not be reduced materially(by only one month, to a total of thirty months). [94] Despite the foregoing period of inactivity, I do not find that the delay on the part of the Plaintiff with respect to the Claim hasreached the level or extent of being inordinate and inexcusable.

In particular, I am not convinced that the delay by the Plaintiff in theseproceedings has exceeded “what is reasonable” in consideration of the issues and circumstances of this case. I have reached thisconclusion in accordance with the following:

a) The Defendant was convicted of common assault against the Plaintiff on July 6, 2019. The Claim was filed on December 19, 2019, and the request for damages is based upon alleged grounds including the torts of battery, assault and intentionalinfliction of emotional distress.

b) This is not a simple case given the subject of this litigation. There are multiple causes of action contained within the Claim,requesting relief based upon grounds of assault, battery, intentional infliction of emotional distress and conversion, as well as allegedoutstanding indebtedness of the Defendant to the Plaintiff pursuant to a loan (totaling $65,000.00).

c) While counsel for the Defendant has understandably attempted to distinguish Forsythe and City Sheet Metal (citing, forinstance, that the ultimate periods of inactivity in those two decisions was determined to be less than the extent of delay alleged by theDefendant in the case at bar), Justice Edmond confirmed at paragraph 38 in City Sheet Metal that “comparing periods of delay” fromvarious cases is not an appropriate method, commenting as follows: [38] … I do not accept that comparing periods of delay is the correct way to conduct the analysis as the assessment must beconducted in accordance with the Eadie factors and the Manitoba (Workers Compensation Board) decision which requires an assessmentbased on the particular facts of each case.

The length of the delay is one factor and it must be assessed against the reasonablecomparator. (emphasis added)

d) The length of delay in a proceeding is not determinative when considering motions seeking dismissal for delay. To the contrary, the extent of delay is one of many factors to assess in these circumstances , pursuant to Eadie , and ultimately, in accordance with WCB .

e) An explanation for the delay on the part of the Plaintiff with moving forward more promptly with the Claim is outlined within the Plaintiff’s Affidavit. The Plaintiff described that she suffers from PTSD, which it is alleged is due to the assaults committed against her by the Defendant.

f) The Plaintiff has also described enduring a difficult pregnancy, and that she continues to attend therapy as well as take medications as prescribed for her PTSD.

g) From the standpoint of the Plaintiff, her above noted difficulties represent more than litigation anxiety or every day stress.

h) The Lowe Affidavit provides further evidence to confirm the Plaintiff’s current circumstances, such as that she is participating in counselling.

i) As a result of suffering from PTSD, and experiencing other life challenges as disclosed, the Plaintiff claims that she encountered difficulty reviewing the documentation assembled, and to assist her counsel in preparation of the Plaintiff’s Affidavit of Documents.

j) The Defendant bears the onus to establish that the delay on the part of the Plaintiff was inordinate and inexcusable. As confirmed by Justice Edmond within paragraph 39 in City Sheet Metal , and even in situations where there is a “paucity of evidence” presented by the party who is alleged to have delayed a matter, the moving party has the burden and obligation to demonstrate that the delay complained of is beyond or exceeds what is reasonable.

k) With respect to the case at bar, I am prepared to accept the Plaintiff’s explanation for the period of delay which has occurred with the Claim. Despite the submissions of counsel for the Defendant, there was no evidence presented within the Pardy Affidavit, or the Affidavit, which specifically challenged the Plaintiff’s contention that her personal situation (PTSD and other factors) contributed to the period of inactivity with this proceeding.

l) As confirmed by Justice Martin at paragraph 45 in Forsythe (consistent with WCB ), the Court is to consider the role that each party played in any overall delay: [45] … Further, there is a certain irony in this situation, in that it appears the defendants are also guilty of delay, albeit of a different nature, in that it took just shy of 36 months, from the filing of the motion on January 7, 2020 until it was heard in December 2022. No doubt there is some reasonable excuse that I am unaware of for some of that delay, but ultimately the delay is prima facie the moving parties’ responsibility. (emphasis added)

m) Justice Edmond made a similar finding in City Sheet Metal , commenting as follows (at paragraph 34): [34] In my view, because there were numerous steps that were taken in this action, the role of each party must be assessed in considering the overall delay … (emphasis added)

n) The evidence in the case at bar does not demonstrate that the Defendant moved forward with the Counterclaim once it had been filed. As confirmed by Justice Greenberg in Krasulja , a statement of claim and a counterclaim are inextricably linked. As a result, inaction by the Defendant with respect to the Counterclaim is a relevant consideration in relation to determination of the Defendant's Motion.

o) While counsel for the Defendant has asserted that there may be certain limitation defences available to the Defendant, section 18(1)(b)(

i) of the MB LAA does carve out an exception as it relates to allegations of assault against a partner in an intimate relationship.

p) Quite simply, I am not prepared to deprive the Plaintiff from having her "day in Court" in these circumstances. Justice Martin was similarly inclined in Forsythe , making the following observations within paragraph 44: [44] … The defendants are asking that Ms. Forsythe be denied her day in court, denied her opportunity for essential justice to be done by having her claim adjudicated, solely on a procedural ground, having no connection to the merits of the claim or any demonstrated prejudice. … (emphasis added)

q) A consistent approach was applied by Justice Edmond at paragraph 49 in City Sheet Metal : [ 49] To conclude, I borrow the words of Twaddle J.A. in Eadie , when I put all relevant considerations into balance and decide whether it is just to take away from the litigant responsible for the delay the right to have its case determined on its merits, I am satisfied that this action should not be dismissed for delay … (emphasis added)

r) It is also critical to note that pursuant to Rule 24.01(1), which is the provision relied upon by the Defendant, the Court has a discretion as to whether an action should be dismissed for delay. Dismissal for delay is not mandatory as is the case under Rule 24.02(2), should the required criterion be established.

Prejudice to the Defendant? [95] While I have determined that the delay of the Plaintiff in these proceedings has not been inordinate and inexcusable, the Court may still dismiss the Claim if the evidence demonstrates that the delay on the part of the Plaintiff resulted in significant prejudice to the Defendant. [96] After assessing the evidence in this case, I do not find that there has been significant prejudice to the Defendant from the delay of the Plaintiff in these proceedings, in consideration of the following:

a) No specific evidence with respect to validity of certain documents or faded memory of specific witnesses has been raised on behalf of the Defendant. Rather, these concerns are general in nature, and tantamount to speculation or conjecture.

b) The number of anticipated witnesses for the Defendant (apart from the Defendant himself) has not been confirmed, and counsel for the Defendant has already advised that this was essentially a "she said - he said" situation. If, however, there are to be other witnesses called to testify at trial on behalf of the Defendant, no details have been disclosed insofar as potential difficulties, such as but not limited to ascertaining the whereabouts of any intended witnesses.

c) At paragraph 46(

d) in City Sheet Metal , Justice Edmond shared a similar concern for purposes of that case: The defendant has not identified specifically what evidence it may have lost or is unable to receive from witnesses or is unavailable within the documentary evidence that has been exchanged during the discovery process to permit the defendant to defend a claim.

d) Aside from the Claim, the Defendant can still proceed with seeking relief pursuant to the Counterclaim.

e) If determined necessary, the Defendant may also proceed to request certain amendments to the Defence (leave may or may not be opposed by the Plaintiff, given the relatively low threshold in accordance with applicable case law).

f) A copy of the Plaintiff’s Affidavit of Documents was forwarded to the counsel for the Defendant late last year. Copies of the

Schedule "A" documentation set forth within the Plaintiff’s Affidavit of Documents was sent to counsel for the Defendant on December 23, 2022. A request for copies or to

schedule an opportunity to inspect

Schedule "A" documentation of the Plaintiff can be scheduled promptly by counsel for the Defendant.

g) As confirmed within the balance of this decision, counsel will be directed to

schedule a case conference or pre-trial with a justice (preferably to be held this fall), so as to monitor this litigation going forward. [97] It is interesting to note that Justice Edmond, at paragraph 49 of City Sheet Metal , accepted that while there may have been delay and it caused some prejudice, he was not satisfied that the moving party had proven that it suffered significant prejudice. [49] … While I accept that the delays have caused some prejudice, I am not satisfied the defendant has proven that it has suffered significant prejudice.

The trial is now set to proceed on November 29, 2021, no further delays should occur and none will be permitted by the court. [98] By application to the case at bar, and even if the evidence before me was considered to be sufficient to establish that there has been prejudice to the Defendant from delay in these proceedings by the Plaintiff, I am not convinced that there has been significant prejudice suffered by the Defendant. [99] In the event that I am in error, and the evidence before the Court could be considered sufficient to establish inordinate and inexcusable delay by the Plaintiff, significant prejudice to the Defendant is presumed unless it can be successfully rebutted by the Plaintiff.

Regardless, in this case, I find that the evidence as reviewed (and relied upon by the Plaintiff) is satisfactory to rebut any such presumption of significant prejudice to the Defendant. Conclusion [100] Based upon all of the foregoing, I do not find that there has been inordinate or inexcusable delay on the part of the Plaintiff with respect to the Claim.

[101] It is also my determination that the Defendant has not suffered significant prejudice attributable to the Plaintiff and the period of inactivity associated with these proceedings. [102] As a result, the Defendant’s Motion is hereby dismissed. Plaintiff’s Motion (Affidavit of Documents from Defendant and Scheduling of Discoveries)

Summary of Plaintiff’s Position [103] It is the request of counsel for the Plaintiff that the Court direct the Defendant to serve his affidavit of documents (together with

Schedule “A” documentation) within thirty days of the Court making such an order. [104] Counsel for the Plaintiff also wishes to

schedule an examination for discovery no later than May 30, 2023 (which has now passed). [105] With respect to the format for an examination for discovery, counsel for the Plaintiff submits that discoveries should be conducted virtually in order that the Plaintiff is not in the presence of the Defendant.

It is asserted by counsel for the Plaintiff that conducting discoveries virtually should not result in any prejudice to the Defendant or his counsel. [106] Counsel for the Plaintiff takes the position that the Court has jurisdiction to direct that discoveries be convened virtually, and to order that the Defendant not be physically present during examination of the Plaintiff at discoveries. [107] In the Ontario Superior Court decision of G.S. v.

K.C . , 2020 ONSC 210 (" GS ") , one of the defendants sought to exclude the plaintiff from being present at an examination for discovery (the defendant alleged that there had been a sexual assault, and was distressed by the prospect of being in the presence of the plaintiff while questioned). [108] At paragraph 29 of GS , the court found that the interest of a party to observe an examination, and yet at the same time not be seen by the opposing party, can be accommodated through use of technology. [109] There is reference within paragraph 10 of GS to the decision of York University v.

Markicevic , 2012 ONSC 5325 (" York University ") , where the legal principles applicable to exclusion of a party from an out-of-court examination were summarized as follows: (

i) There is an inherent right for parties to an action to be present during the cross-examination or examination for discovery of other parties to, or witnesses in , an action ; (ii) The court has the discretion to exclude parties from attending such cross-examinations or examinations for discovery ; (iii) However, the court does not establish classes of cases which eliminate a party’s inherent right to be present at an examination – “ blanket exclusions” do not form part of our procedural law ; (iv) T he person seeking to exclude a party from an examination bears the onus, on a balance of probabilities, of showing cause to justify such an exclusion ; (

v) Cause depends on the circumstances of the case . Courts have defined cause as a realistic and substantial cause, circumstances that would cause prejudice to the party to be examined, or circumstances that make exclusion necessary to secure the ends of justice ; and, (vi) Demonstrated intimidation by one party towards the other is a justifiable reason to exclude, however a court should guard against assuming intimidation from a set of circumstances.

Intimidation must be proven . (emphasis added) [110] Commencing at paragraph 11 in GS , the above noted principles are applied to the facts of that case: [ 11] It is clear that a party must demonstrate more than general discomfort or anxiety about the prospect of being examined with the opposing party present . The prospect of being examined for discovery will undoubtedly trigger some degree of anxiety for

most people. The presence of an opposing litigant will no doubt increase that level of anxiety. Such general anxiety does not rise to thelevel of justifying the exclusion of a party to the litigation: York University at para. 15. ….. [13] The case law also indicates that allegations of intimidation or fear must be supported by the evidence on an objective basis.In Redekop v. Redekop, , one party refused to attend on the basis that he would be intimidated if the opposing partywas present for examination for discovery.

At para. 13, the Court held that, in order to exclude a party: It is not enough that the respondent feels or fears intimidation. That is not the test.

There must be an objective basis for that feelingor fear; otherwise, the sensibilities of the respondent, no matter how heightened or unfounded, would operate to defeat the substantiveright of the applicant to be present during the examination for discovery of the respondent. [14] While most cases consider exclusion of a party on the basis of intimidation, a few cases have suggested that the analysis may besomewhat different where there is an allegation of sexual assault, particularly of a minor, and the person being examined doesnot want to see his or her alleged assailant.

For example, in Elzen, Goldstein J. stated, at para. 6: I accept that Ms. Den Elzen may be uncomfortable and experience anxiety if Mr. Kelly is present. That is not, however, the samething as Mr. Kelly causing discomfort and anxiety by some act of intimidation. It is not enough that Ms. Den Elzen finds Mr. Kelly’smere presence difficult to cope with.

I might take a very different view in, for example, the circumstances of a sexual assaultcomplainant being in the same room as the alleged perpetrator of the assault. (Emphasis added) ….. [16] As I read the cases, the difficulty with the analysis of this issue is that the cases appear to equate exclusion of a party withtestimonial accommodation. This equation fails to account for the technological innovations that permit a party to observe theexamination for discovery even though the party is not in the same room as the person being discovered.

Historically, when a partywas “excluded” he or she would not be able to see and hear the examination for discovery as it was happening. That is no longer thecase, and the applicable principles should evolve to take this into account. Both the party’s interest in observing the examination fordiscovery and the witness’ interest in not seeing the opposing party can often be accommodated by commonly availabletechnology.

Testimonial accommodation does not require party exclusion. [17] In this regard, it is instructive to consider how this issue has been handled in the criminal law context, where the accusedhas a constitutional and statutory right to be present in court during the whole of his or her trial, but accommodations arecommonly, if not routinely, made for alleged sexual assault victims who are afraid to come face to face with their alleged assailant.The Supreme Court of Canada has recognized that an accused has no right to have a face-to-face confrontation with thecomplainant, and that an accused’s right to a fair trial is not infringed by allowing a child complainant to give evidence frombehind a screen: R. v.

Levogiannis, (SCC), [1993] 4 SCR 475. [18]

Section 486.2 of the Criminal Code, R.S.C. 1985, c. C-46 provides testimonial accommodation for children and vulnerable adultcomplainants in sexual assault and other cases. … ….. [23] The constitutional validity of s. 486.2 was upheld by the Supreme Court of Canada “for the reasons given by the BritishColumbia Court of Appeal” in R. v. J.Z.S., 2019 SCC 1. …..

[25] If the witness is to be examined “outside the court room”, s. 486.2 does not indicate whether the cross-examining counsel is in the same room as the witness when the cross-examination is conducted. This has been the topic of some discussion in the case law, and the consensus appears to be that the location of the cross-examining counsel is within the discretion of the trial judge : R. v Belem , 2017 ONSC 2213 , at paras. 35 -38 ; R. v.

Mattu , 2019 ONCJ 517 , at paras. 20 - 21 . [26] Given the availability of these testimonial accommodations in the criminal law context, there is no reason why, in appropriate cases, similar testimonial accommodations cannot be offered to a witness in a civil proceeding without compromising the opposing party’s right to be present during the examination for discovery.

The plaintiff has a right to protect his interests by observing the conduct of the examination for discovery, but this does not translate into a right to a “face-to-face confrontation” with the defendant . ….. [33] The medical evidence in this case must be viewed in the context of these and other Supreme Court cases that recognize the trauma that sexual abuse victims may suffer if forced into a face-to-face confrontation with their alleged assailant .

This is not simply the generalized anxiety or stress that must be endured by all other witnesses . (emphasis added) [111] The court in GS concluded that: [34] While Mr. C.H. is no longer a minor, he is now just 19 years of age, and the alleged sexual assault occurred when he was only 14 years of age. In these circumstances I accept the medical evidence submitted by the defendants and find that this is an appropriate case in which to provide some testimonial accommodation when Mr. C.H. is examined for discovery. ….. [ 38] The defendant, C.H., will be examined for discovery in a separate room from the plaintiff .

The examination for discovery will be available to the plaintiff by closed-circuit television or other electronic means so that he can watch the examination for discovery in real time. The plaintiff’s lawyer may choose between conducting the examination for discovery in the same room as the Mr. C.H., or remaining in the same room as his client and conducting the examination by closed-circuit television . Counsel for the parties will coordinate the arrival of their clients so that Mr. C.H. does not see the plaintiff before or after the examination. (emphasis added)

Summary of Defendant’s Position [112] Counsel for the Defendant confirmed there is no opposition to provision of an affidavit of documents from the Defendant, should the Defendant’s Motion be unsuccessful. It is simply a case of requiring more time for it to be completed and served.

Counsel for the Defendant suggested having sixty days, at a minimum, from the date of any order of this Court. [113] With a longer period of time being permitted to work on preparing an affidavit of documents, counsel for the Defendant advised that this would also provide her with an opportunity to request and obtain medical advice in order to better ascertain the current status of Defendant, and in particular, his present capacity and ability to provide instructions as well as effectively participate in the discovery process.

Upon this basis, it is anticipated by counsel for the Defendant that scheduling and making arrangements for discoveries may be more constructive and efficient. [114] In response to the request made on behalf of the Plaintiff that any examination for discovery in these proceedings be convened virtually, counsel for the Defendant disagreed, and submitted that discoveries ought to be held in-person.

Analysis Virtual Examination for Discovery [115] First and foremost, the Plaintiff’s Motion requests that an examination for discovery be scheduled with the Defendant.

It does not specifically request that any such examination for discovery be conducted virtually, and that the parties are not in the presence of each other. [116] In the interests of proportionality ( based up on Rules 1.04(1), 1.04(1.1) and 2.03 as referenced previously), as well as the general wording contained within the Plaintiff’s Motion (that requests “such further and other Orders as may be just in the circumstances”), I am nonetheless prepared to ent ertain the request for discoveries to be held virtually, and not compel the Plaintiff to file an amended motion. [117] A.B. v.

Henry , 2021 BCSC 2562 (" Henry ") is a rather recent decision from British Columbia which considered GS , and confirms (at paragraph 20) that the court "retains the authority to order that a party be excluded from an examination for discovery”. [118] Commencing at paragraph 23 in Henry , the court further concluded as follows: [ 23] In Elzen v. Kelly , 2016 ONSC 4093 , at para. 6 , the court suggested that it might take a more liberal approach to ordering exclusion in cases of sexual assault where a complainant was faced with the prospect of being in the same room with the alleged attacker . See also G.S. v.

K.C. , 2020 ONSC 210 , at para. 14 . [ 24] The court in G.S. noted the various provisions of the Criminal Code for testimonial accommodation in cases of sexual assault . In G.S . , the court ordered that the examination for discovery of the defendant take place in a separate room from the plaintiff and that the examination be available to be viewed by the plaintiff by closed-circuit television or other electronic means. ….. [ 28] In my view that is the appropriate way to proceed in this case.

While I agree that the evidence of actual intimidation is weak, the circumstances of this case warrant accommodations being made . I therefore order that examinations for discovery of the plaintiffs will take place without the defendant present in person in the examination room. However, the defendant may view the examinations from a different location by way of closed-circuit television or other electronic means.

While the defendant may view the examinations, neither his image nor his voice may be broadcast into the examination room and he shall not photograph or record the examinations. [ 29] To be clear, I am making this order based on the specific circumstances of this case. It is not for me to impose a rule of general application relating to examinations for discovery in all cases of civil sexual assault. That is for an appellate court or for the legislature. (emphasis added) [119] T.A.O. v.

D.J.M, 2021 BCSC 1690 (" T.A.O.” ) is another decision from British Columbia, which involved a civil proceeding where the applicant did not wish to be questioned in the presence of the other party. The court observed as follows (commencing at paragraph 29): [29] In the criminal context, testimonial accommodations are routinely provided to complainants in sexual assault cases who do not wish to come face-to-face with their alleged perpetrator : … [30]

Section 73 of the EA generally allows the use of closed-circuit television or other technology that would permit the parties and the witness to engage in simultaneous visual and oral communications . (emphasis added) [120] For completeness sake, I did search for case law from Manitoba that may provide direction concerning the issue of whether a

party could be precluded from being in the same room while the other party is being examined (with the excluded party being able toview the questioning by video, but not be seen or heard by the party being questioned). [121] Perillo v. Contessa Fine Furniture et al. v. Newbound et al., 2007 MBQB 144 (“Perillo”) is a decision issued by the HonourableMaster Cooper that involved a family dispute, where there was an allegation of wrongful dismissal as well as minority shareholderoppression.

The motion of the plaintiff in Perillo, however, was different than what we are dealing with in the case at bar (the requestwas to examine the two defendants separately, which was dismissed). [122] The jurisdiction of a master (who is appointed pursuant to statute) and the extent to which directions can be provided insofar asprocedural issues was addressed within the decision I issued in Lowes v.

Lowes, 2022 MBQB 156 (“Lowes”). [123] At paragraph 35 in Lowes, I noted the following (only the relevant portions of this paragraph are included): [35] When it comes to case law considering the jurisdiction of a master, a starting place is the seminal decision of the Court of Appealin Zalizniak v. Zalizniak et al., 2007 MBCA 118 (“Zalizniak”). Other decisions of this Court have reviewed the issue ofinherent jurisdiction, and the Supreme Court of Canada did so as well in R. v.

Cunningham, 2010 SCC 10 , [2010] 1 SCR331 (“Cunningham”), where the Honourable Justice Rothstein made the following observations and findings (within paragraphs 18through 20): [18] Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate toadminister justice … [19] Likewise in the case of statutory courts, the authority to control the court’s process and oversee the conduct of counsel isnecessarily implied in the grant of power to function as a court of law.

This Court has affirmed that courts can apply a “doctrineof jurisdiction by necessary implication” when determining the powers of a statutory tribunal: . . . the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, allpowers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime . . . . (ATCO Gas and Pipelines Ltd. v.

Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51) Although Bastarache J. was referring to an administrative tribunal, the same rule of jurisdiction, by necessary implication,would apply to statutory courts. … (emphasis added) [124] The Rules do not specifically preclude examinations for discovery being conducted virtually, such that a party could be examinedwithout the other party being physically present in the same room (or being able to see or hear the other party while being questioned). [125] Critical to the discovery process is that there be a record or transcript.

Rule 34.18(1) confirms as follows: 34.18(1) On consent of the parties or by order of the court, an examination may be recorded by videotape or other similar means andthe tape or other recording may be filed for the use of the court along with the transcript. [126] It should also be noted that flexibility or accommodation insofar as procedure for discoveries is demonstrated by Rule 34.19,which provides as follows: 34.19 On consent of the parties, an examination may be conducted by telephone conference or other electronic means. [127] From the Court's perspective, one result or impact of the global pandemic has been the reality that access to justice can befacilitated through processes which are agile and can be implemented in a timely, practical manner where necessary.

Video was utilized

to conduct trials, pre-trials, motions, examination of witnesses who work and reside a considerable distance away, or otherwise, and this practice continues to this day. The Court has adapted, with practice directions having been issued that permit virtual proceedings in certain situations. [128] In the case at bar, the evidence within the Lowe Affidavit independently supports the Plaintiff’s request that discoveries not be held with both parties in the presence of the other. Lowe opined within her letter dated March 31, 2023 (Exhibit “A” to the Lowe Affidavit) that: … My recommendation in regards to Ms.

Kutryk being present in the same room as Mr. Ehr is that this would be detrimental to her mental health based upon the information provided by her to me. Ms. Kutryk reports overwhelm and fear to being in the same room with Mr.

Ehr . (emphasis added) [129] No specific prejudice or complications were cited by counsel for the Defendant as a basis for opposing discoveries in a virtual format. [130] As confirmed earlier in this decision, the Defendant was convicted of common assault against the Plaintiff, approximately six months prior to the Claim being filed. [131] The decisions in GS , Henry and T.A.O . (as well as other cases referenced therein) serve as examples of where reasonable a ccommodations were made for the litigants and counsel, in an effort to achieve a proportionate balancing of interests (for parties who do not wish to be re-traumatized and questioned in the presence of an alleged assailant, and for parties who are entitled to confront the evidence and position of the other litigant). [132] To my mind, the processes set forth within paragraph 38 in GS , paragraph 28 of Henry and paragraph 34 in T.A.O represent plausible options that can be applied to the case at bar. [133] Accordingly, I direct that the intended examination for discovery in these proceedings be conducted virtually as requested on behalf of the Plaintiff. [134] I am confident that counsel will be able to conduct discoveries in a manner consistent with the aforementioned case law, and what I have ordered (the Defendant is not to be present within the same room as the Plaintiff when she is being questioned, and the Plaintiff is also not to hear

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