Saturley v. CIBC World Markets Inc., 2012 NSSC 325

SUPREME COURT OF NOVA SCOTIA Citation: Saturley v. CIBC World Markets Inc., 2012 NSSC 325 Date: 20120917 Docket: Hfx No. 305635 Registry: Halifax Between: Fredrick Thomas Saturley Plaintiff v. CIBC World Markets Inc. Defendant LIBRARY HEADING Judge : The Honourable Justice Michael J. Wood Heard: Motion by Correspondence re Testimony of Mr. Prasad Salian Final Written Submissions: September 5, 2012 Written Decision: September 17, 2012

Subject: Civil Procedure - Witness List under CPR 4.18

Summary: The Defendant applied for leave to call an additional witness at trial who was not named on the initial list of witnesses. Issue: Should leave be given to call the additional witness? Result: The Court considered the relative prejudice to the parties and determined that it would be unjust to prevent the defendant from calling the witness at trial. Issues such as admissibility, use of video conferencing and costs would be dealt with later, if required. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: Saturley v. CIBC World Markets Inc., 2012 NSSC 325 Date: 20120917 Docket: Hfx No. 305635 Registry: Halifax Between: Fredrick Thomas Saturley Plaintiff v. CIBC World Markets Inc. Defendant

Judge: The Honourable Justice Michael J. Wood Heard: Motion by Correspondence re Testimony of Mr. Prasad Salian Final Written Submissions: September 5, 2012 Written Decision: September 17, 2012 Counsel: George W. MacDonald, Q.C., Jack Graham, Q.C. and Kiersten Amos, for the plaintiff Michael S. Ryan, Q.C., John A. Keith, Christy L. Sandles and Jack K. Townsend, for the defendant By the Court : [ 1 ] By notice of motion filed on June 8, 2012, the defendant sought leave to call a further representative of Avotus Corporation as a witness in the trial of this proceeding. That witness is Mr.

Prasad Salian who lives and works in Mumbai, India. It was agreed by counsel that the motion could be dealt with by way of correspondence. [ 2 ] There is a significant procedural history to this matter. There are a number of reported decisions on pretrial motions dealing with disputes over production. The trial was originally scheduled to take place in the spring of 2011 but was adjourned because inadequate time had been set aside. The trial before me began in early April, 2012 and we have had 24 hearing days. The trial is scheduled to resume on October 1, 2012 for a further 19 days.

The plaintiff ’ s case is closed and we are part way through the defendant ’ s evidence. [ 3 ] In January, 2012, the parties exchanged witness lists in accordance with Civil Procedure Rule 4.18. The defendant ’ s witness list included the following: A technical person(

s) from CIBC who can speak to:

a) phone records;

b) trading records;

c) market prices available for options trades. [ 4 ] On April 16 and 17, 2012, I heard a motion brought by the defendant for leave to call witnesses who were not named in their original witness list. That request included an unspecified representative of Avotus Corporation. Avotus is a third party which maintained the telephone system located at the CIBC Halifax office where the plaintiff was employed. [ 5 ] By decision dated April 19, 2012 ( 2012 NSSC 155 ), I determined that leave was not required under CPR 4.18(2) in order to call the Avotus representative because they were encompassed within the scope of the January 2012 CIBC witness list.

[ 6 ] CIBC called Mr. Derek Collura as the Avotus representative to testify about telephone records produced by that company. These records were entered as exhibits by consent, subject to the right of the plaintiff to make submissions with respect to their reliability and the weight to be given to them. These exhibits purport to record telephone calls made from various extensions at the CIBC office during the relevant time period. [ 7 ] The defendant now wishes to call Mr. Salian to provide further evidence with respect to the Avotus telephone records and explain certain identified gaps in the data.

Counsel for the defendant says that these gaps and the explanations for them only came to their attention after commencement of the trial. [ 8 ] The defendant has filed an affidavit of Mr. Salian in support of this motion. It was provided in order to give some indication of the nature of his potential evidence. According to that affidavit, Mr. Salian is the Manager of Operations for Anthelio Healthcare Solutions Inc. which is a third party supplier of services to Avotus Corporation.

They were responsible for maintaining the call record data for the CIBC Halifax office which was provided to Avotus and ultimately filed as part of the trial exhibits. [ 9 ] Mr. Salian ’ s affidavit indicates that he is able to provide an explanation for the data which was missing from the original call records and that he is able to provide an updated and more complete record of calls from the CIBC Halifax office. [ 10 ] The defendant ’ s position is that Mr.

Salian ’ s evidence is necessary in order to provide the Court with more accurate information concerning the reliability of the Avotus call records which are already in evidence. They say that the Court should not be left with information which is incomplete when more accurate data is available. [ 11 ] The defendant also argues that it will be significantly prejudiced if Mr. Salian ’ s evidence is excluded. Their defence is based upon an allegation that Mr. Saturley engaged in discretionary trading without proper client authorization.

As part of this, they will try and establish a lack of communication between Mr. Saturley and his clients in advance of relevant trades. The record of telephone calls made by Mr. Saturley and his team at CIBC represent a significant part of that defence strategy. They will ask the Court to infer that the absence of a call record in the Avotus materials, as well as other telephone records, means that the contact did not take place as required.

From their perspective, it is therefore important that the Court have confidence in the accuracy of all telephone records including those from Avotus. [ 12 ] As for any potential prejudice to the plaintiff the defendant says that there is none with the possible exception of additional work to respond to Mr. Salian ’ s testimony which could be dealt with by way of costs at the conclusion of the trial. They make the point that this is a wrongful dismissal case with the burden of proving cause on the defendant employer.

In their view, this means that the plaintiff has a full opportunity to call rebuttal evidence with respect to those allegations including the reliability and accuracy of the Avotus records. [ 13 ] On the contrary, the plaintiff argues that he is prejudiced by the timing of the disclosure of the Salian evidence because this information was not available to him during his case or the cross-examination of the initial defence witnesses. He says that there are significant costs associated with dealing with Mr.

Salian ’ s evidence and that it would be unfair to permit the defendant to call this additional evidence. [ 14 ] According to the plaintiff, most of Mr. Salian ’ s proposed evidence is inadmissible because it is hearsay. He also says that the revised call records are not admissible because of the operation of CPR 51.03. [ 15 ] The final point made by the plaintiff is that Mr. Salian ’ s evidence is simply corroborative of the testimony already provided by Mr. Collura who was cross-examined about the gaps in the records. The plaintiff says that Mr.

Collura ’ s evidence was that the gaps were caused by either equipment failure or technician error, and this is essentially the same information proposed to be given by Mr. Salian although with more particulars. [ 16 ] In their submissions, both parties made reference to CPR 4.18(2) and the test outlined for its application in my earlier decision ( 2012 NSSC 155 at paras. 36-39 ). Under those provisions, I should not grant leave to call Mr. Salian as a witness unless I am satisfied that it is necessary in order to avoid an injustice. I think that the primary consideration is the relative prejudice to the parties.

[ 17 ] In this case, the Court has admitted, by agreement, call record data for the CIBC Halifax office. As became apparent during the trial, this data is incomplete. Mr. Salian is being offered as someone that can provide evidence concerning the missing information and perhaps fill in the gaps.

Although he is not an employee of Avotus, it appears as if his employer was responsible for the maintenance and retrieval of the records in question. [ 18 ] Having sat through a significant portion of the trial evidence, it is apparent to me that the accuracy and reliability of all of the telephone records, including those from Avotus, is crucial to the theory of the defence that it had just cause to fire the plaintiff. If it is prevented from calling Mr.

Salian to provide evidence in support of the reliability and accuracy of the Avotus records, it will certainly be prejudiced. [ 19 ] I have carefully considered the submissions on behalf of the plaintiff that he too would be prejudiced if Mr. Salian is permitted to testify. I am not convinced that having Mr. Salian ’ s information at an earlier point would have changed the way the plaintiff presented his case or questions asked of the initial defence witnesses in cross-examination.

While information that may support the defence ’ s allegations might be harmful to the plaintiff ’ s case, I fail to see how providing more accurate information to the Court would result in an injustice as that term is used in CPR 4.18(2). [ 20 ] I do agree that having Mr. Salian testify will use some of the remaining trial time and could result in extra work on the part of plaintiff ’ s counsel. These are matters which can be adequately dealt with by way of costs at the conclusion of the trial. [ 21 ] Counsel for the plaintiff argued strenuously that most, if not all, of Mr.

Salian ’ s evidence was not admissible. This would include his viva voce testimony as well as the updated phone records. Those matters are not before me and I am not prepared to make any determination on the admissibility questions at this time. [ 22 ] The final issue referred to by both parties is whether Mr. Salian ’ s evidence could be presented by video conference pursuant to CPR 56.03. There is no motion and no evidentiary basis on which to consider that issue and, as a result, I will not do so.

That matter will be dealt with when, and if, it arises. [ 23 ] In conclusion, I am satisfied that the defendant should be permitted to call Mr. Salian as a witness at trial to provide evidence with respect to the accuracy and reliability of the Avotus call records. ________________________ Wood, J.