Crown must pay costs after being ‘overly enthusiastic’

An Ontario Superior Court judge has ordered the provincial Crown to pay costs to a representative plaintiff over actions taken during cross-examinations during a motion in the certification process of the proposed class action.

In Cirillo v. Ontario, 2018 ONSC 4359, Justice Edward Morgan ruled that the Crown was “overly enthusiastic,” when the Crown asked the representative plaintiff in the proposed class action, Robin Cirillo, for detailed records of her finances and her therapy records.

The Crown also asked a proposed expert witness who is an academic, Dr. Nicole Myers, who has studied bail delays to produce handwritten notes and drafts from her personal notebooks, said the ruling. The Crown’s requests were based on affidavits filed in support of a motion for certification for the proposed class action lawsuit, which is on behalf of Ontarians who had been “arrested and detained for more than 24 hours prior to any bail hearing being available” since 2000, said the ruling.

“The Defendant has pursued a similar approach with both affiants,” wrote Morgan.

“[The Crown] insists on strict adherence to the Rules of Civil Procedure and the law of evidence, but is overly enthusiastic in that approach. As a consequence, it has asked for too much.”

As a result, Morgan ordered the Crown to pay costs of $3,244.69 to the plaintiff.

“What they ask is a laborious chore that is disproportionate to any relevance it may have in these proceedings,” added Morgan.

As part of the motion for certification for the proposed class action, Cirillo alleged that the Crown breached “duties of care and fiduciary duties” in the scheduling of bail hearings.

In her affidavit filed with the court, Cirillo said she was “still troubled by [her] two nights in jail” and that she “would not have the financial means to bring this action” on her own.

As part of a cross-examination leading up to the motion to certify the case, the Crown asked Cirillo to produce documents in support of the affidavit she filed, including five years of tax returns and details of all other sources of funds available to her, as well as personal medical records detailing any psychotherapy she had undergone, said the ruling.

In answers to an undertaking from the cross-examination, Cirillo had already provided her latest annual income and the amount of savings she has in the bank.

Jody Brown, an associate at Koskie Minsky LLP, who represents Cirillo, said it’s unclear whether Morgan’s ruling addressed Christopher Wayland or Jeffrey Costain, both of whom acted for the Crown in the cross-examination and motion portions of the case.

The office of the attorney general did not identify which Crown the judge was referring to, following a request from Law Times.
“[The court] was referencing the Crown‘s position as the litigant, not addressing individual counsel,” said MAG spokesman Brian Gray.

Brown says the ruling is a good one, as if the defendant had been successful in their motion “it could have potentially created a chilling effect on representative plaintiffs.”

“When a representative plaintiff comes forward, they are already taking on a lot of responsibility, being the face for thousands of people — sometimes in cases that can be very personal,” says Brown.

“If they are also then saddled with the responsibility, in this case, for example, of producing their entire therapist records, their entire finances over the past five years, all of their inquiries with respect to other financial means to bring a case, how is anyone going to be willing to be a representative plaintiff when they see that burden?”

The ruling said that Myers, the expert witness, provided the court with the database used in her study of bail delays, as well as all of the typed qualitative notes referenced in her expert report.

The Crown also additionally requested Myers’ academic works in progress and handwritten notes taken while she observed bail hearings from 2010 to 2013, which were not used in Myers’ final report or academic work. Myers was also presented at cross-examination with hundreds of pages of academic publications by other scholars and asked for her opinion, even though they were not provided in advance for her to review, the decision said.

According to the decision, the Crown argued that the plaintiff herself raised the subjects of her finances and mental health in her affidavit. But the judge said in the decision that her statements “should open up no new line of inquiry” and that it is to “state the obvious” to point out that jail is troubling.

“A wealthy person and a poor person have the same rights,” Morgan said in the decision.

“In any case, representative Plaintiffs are just that — representatives of the class. Their personal financial circumstances are not part of the issue on certification, provided that they have a valid cause of action, can fairly and adequately represent the interests of the class and generally meet the other requirements.”

Monique Jilesen, a partner at Lenczner Slaght Royce Smith Griffin LLP, says lawyers must tread carefully when they get into the merits of a proposed class action, even as early as certification, as parties try to get as much information as possible.

That’s especially the case with expert witnesses, since Canadian procedure doesn’t usually have discovery of expert witnesses in advance of trial.

“It was just a disproportionate request to what was being asked,” Jilesen says, who was not involved in the case.

Louis Sokolov, a partner atSotos LLP, says wide-ranging cross-examinations on the merits of a plaintiff’s claim have become less common over the past 20 years or so, after several decisions by the courts.

“The test for certification has been exhaustively articulated by appellant courts, including the Supreme Court, to be set out as a low bar meant to weed out those cases that are clearly inappropriate for prosecution as class actions,” says Sokolov, who wasn’t involved in the case. “Courts have said time and again, it’s not the time for merits inquiry — that’s for trial.”