Lucia’s Case: Appeal, Civil Litigation,

Jurisdiction and Forum non Conveniens

/ Case Studies / By Allan Rouben
Background:

Lucia resides in Ontario with her family, and was involved in a car accident in
Michigan. She brought suit in the Ontario Superior Court of Justice against the
driver and owner of the vehicle, as well as her own insurer given that the
Michigan defendants claimed the accident was caused by an unknown vehicle.
As they are entitled to do under our Rules of Civil Procedure, the Michigan
defendants asked the Superior Court to stay the proceeding against them.
They argued the Ontario Courts had no jurisdiction, and the action was
properly tried in Michigan. This could have serious implications, as witnesses
including family, physicians and other treatment providers would have to travel
long distances in order to give evidence. The cost of doing so would be
prohibitive. A Superior Court judge agreed with the defendants and stayed
Lucia’s court action. Her lawyers appealed the decision. I became involved at
that point.

Approach:

The argument was heard by three judges of the Court of Appeal. At the
hearing, the jurisdiction of the Superior Court was conceded, and the
argument revolved around whether Ontario or Michigan was the more
appropriate forum for determination of the dispute. On Lucia’s behalf, it was
argued that given the claim against her own insurer, there was the potential for
two parallel actions and a possibility of conflicting decisions.

Result:

After listening to the oral arguments of the lawyers and reading the evidence
and written arguments, the Ontario Court of Appeal agreed with Lucia that the
claim was properly brought in Ontario. The Court held that proceeding in that
manner would promote efficiency and justice.

Dilanka’s Case: Employment Law, Unjust

Dismissal, and The Canada Labour Code
/ Uncategorized / By admin
Background
Dilanka was working in inventory control for a large Federally regulated
employer. He was highly dedicated and conscientious, always looking for work
and opportunities to grow in the company. His performance appraisals were
glowing. Dilanka’s efforts were recognized with promotion and assignment to
important projects, yet he hadn’t advanced as far as he thought he should
have. When a new supervisor came in, Dilanka suddenly received his first
negative review. This came as a shock. He complained without success to
human resources and senior management. Soon thereafter, his employment
was terminated. The company said they were going through a restructuring
and Dilanka’s position, along with that of other employees, was being
eliminated.

Dilanka filed a complaint of unjust dismissal under the Canada Labour Code.
The complaint is heard by an Adjudicator and differs from a court action, in
that reinstatement can be ordered for an improper termination. Here, the
employer argued that elimination of Dilanka’s job and others showed the
termination was made for a proper purpose. They also argued that a
severance payment made showed that the termination was not unjust.

Approach

Dilanka had been dealing with the complicated claim himself but found the
process overwhelming. I became involved at that point, and requested the
company’s employment file and documents on the reasons for termination.
The hearing before the Adjudicator was coming up soon. After reviewing the
circumstances with Dilanka and researching the important legal issues, I
prepared an Arbitration Brief for the Adjudicator to read before the start of the
hearing. It was clear that, whoever lost, the case could be headed for higher
appeal courts. The employer’s argument could have serious implications for
the unjust dismissal remedy in the Canada Labour Code.

Result

After a lengthy and exhausting process for Dilanka, on the eve of the hearing
before the Adjudicator, the employer agreed to resolve the matter on terms
that Dilanka was prepared to accept. He had shown courage in standing up for
his convictions.

Omer’s Case: Labour Law, Wrongful

Dismissal and Duty to Accommodate
/ Uncategorized / By Allan Rouben
Background

Omer had been working for Air Canada for ten years, doing a job he loved as
an airline mechanic, when the company claimed he had abandoned the job.
Following an altercation with a co-worker, Omer was off work suffering from
depression. Both he and the co-worker had been suspended, but Omer
considered this was unjustified and that the co-worker had received favourable
treatment because of a family relation with management. The feelings of
injustice and mistreatment caused Omer to miss time from work. As is not
uncommon, he found it difficult to revisit the issues and communicate with the
company concerning his absence. However, the company was aware of his
condition, but nonetheless deemed Omer to have abandoned his job as a
result of the failure to adequately communicate with the company. The Union
brought a grievance on Omer’s behalf, but after lengthy delays he felt more
comfortable having independent counsel represent him on the matter. I
became involved at that point.

Approach

The first order of business was to request and obtain the company’s complete
file, and in particular communications relating to the decision to deem Omer to
have abandoned the job. After doing so, a detailed Arbitration Brief was
prepared setting out the facts of the case and Omer’s position. This would
allow the Arbitrator to come to the Arbitration well prepared, and better able to
focus the hearing more efficiently. It was clear to me from the documentation
that the decision to terminate Omer’s employment was inappropriate, and the
company had failed to adequately accommodate his condition. These
responsibilities, which form part of human rights statutes and collective
agreements, represent important safeguards for employees suffering from
disabilities. The company saw matters differently and argued that they had
acted properly.

Result

With the assistance of the highly skilled Arbitrator and before the
commencement of the hearing, a settlement of the Arbitration was arrived at
which was satisfactory to all parties.

Controlling Your Witness And Getting

Admissions On Examination For
Discovery
/ Uncategorized / By Allan Rouben
The purposes of an examination for discovery have been well described by Mr.
Justice Trainor in Ontario Bean Producers Marketing Board v. W.G.
Thompson & Sons (1981), 32 O.R. (2d) 69 (H.C.J.) as: (1) to enable the
examining party to know the opponent’s case; (2) to obtain admissions in order
to dispense with formal proof or destroy the opponent’s case; (3) to facilitate
settlement; (4) to eliminate or narrow issues; (5) to avoid surprise at trial.

While this paper is concerned with controlling a witness and obtaining

admissions, it is worth mentioning that in order to fulfil the other objectives,
controlling the witness may not be the best approach. Control of a witness
generally involves the use of closed questions which do not call for
explanatory responses. This is inconsistent with the open ended questioning
called for on an examination for discovery where the examining party seeks to
learn the opponent’s case and avoid surprise at trial. It is important to note that
answers given on an examination for discovery cannot be read in by an
opposing party in support of their case at trial. As a result, the witness cannot
harm the examining party at an examination for discovery. If the evidence
given is damaging to your case, it is best to know that at the examination stage
and obtain evidence which might potentially be used for impeachment
purposes when the witness comes to be examined at trial. For those purposes,
control of the witness is neither necessary nor appropriate.

Obtaining admissions on discovery is undoubtedly an important tool. Rule

31.11(1) provides that “At the trial of an action, a party may read into evidence
as part of the party’s own case against an adverse party any part of the
evidence given on the examination for discovery of (a) the adverse party; or
(b) a person examined for discovery on behalf or in place of, or in addition to
the adverse party, unless the trial judge orders otherwise, if the evidence is
otherwise admissible, whether the party or other person has already given
evidence or not.” Rule 31.11(2) provides that evidence given on examination
for discovery may be used for impeachment purposes at trial and Rule
31.11(3) provides that where part of the evidence on discovery is read in at
trial, any other part of the evidence given may be read in at the request of the
adverse party “that qualifies or explains the part first introduced.” These
rules place a premium on obtaining clear admissions which can be read in at
trial without elaboration or qualification. For this purpose, control of the witness
on examination for discovery is of paramount importance.

In my view, the techniques required to accomplish this purpose involve: (a)

asking short questions; (b) using simple language; (c) listening to the answers;
and (d) being persistent.

It is human nature to try and avoid answering troublesome questions.

Witnesses use a variety of techniques to do so. Vague answers are perhaps
the most common. Avoiding questions entirely are another. The difficulty
however often lies with the form of the question. Short, simply framed
questions minimize the possibility that evasion can occur and ensure that the
examining party maintains control over the witness.

The techniques required to maintain control on an examination for discovery

are the same as those used in a cross-examination at trial. They involve the
use of leading questions in which the witness is kept on a short leash and
made to answer assertions put by the examining party. In Cross-Examination:
Science and Techniques, (2nd edition, Matthew Bender, 2004) p. 8-10, Larry
Pozner and Roger Dodd emphasize the importance of leading questions:

The leading question positions the cross-examiner as the teacher, while

the open ended question positions the cross-examiner as a student.
Through the open ended question it is the witness who becomes the
teacher. The open ended question focuses courtroom attention on the
witness. The leading question focuses attention on the cross-examiner.
The cross-examiner seeks that attention not for ego gratification, but for
purposes of efficiently teaching the facts of the case. The cross-
examiner/teacher using leading questions places the cross-examiner in
control of the flow of information. The leading question also allows the
cross-examiner to select the topics to be discussed within the cross-
examination.”

These principles apply with equal force when seeking admissions on

examination for discovery. The use of leading questions allows the examiner
to obtain yes or no answers to a series of assertions put to the witness. The
shorter the question, the better. Long, compound questions can mistakenly
cause the examiner to believe an admission has been made when, in fact, the
witness meant something different. There are few greater embarrassments at
trial than to put what the examiner believes to be an inconsistent statement to
a witness, only to find that this is not the case. This type of problem occurs
when the questions are not sufficiently clear.

The benefits of using short questions are apparent. As indicated, they allow
the examiner to maintain control over the witness. The gradual accumulation
of facts also has a greater persuasive impact. As well, by gentle probing, the
examiner will be able to see how far the witness will go in admitting important
facts. A few examples will serve to illustrate these points.

Larry Posner and Roger Dodd are strong adherents to the one fact per
question method of cross-examination. The example of: “Q. You saw the blue
car come around the corner, and speed through the red light? A. No” is
transformed into the following: Posner and Dodd,Cross-Examination: Science
and Techniques, supra, pp. 8-21-8-22.

“Q. You did see a car.

A. Yes.
Q. It was blue.
A. Yes.
Q. The blue car came around the corner.
A. True.
Q. It drove through the red light.
A. True.
Q. As it drove through the red light, it was speeding.
A. It depends on what you mean by speeding.”

With the use of short questions, the examiner knows precisely what the
witness is agreeing to and can more clearly isolate the areas of dispute.
Posner and Dodd also show how this method adds to the force of the
information. Thus, the exchange of “Q. You saw the six foot, five inch, 225
pound guy with the bloody fists beat down the five foot, seven inch, 155 pound
guy with the bloody face? A. Yes” is transformed into the following, supra, pp.
8-32-8-33:

“Q. You saw the fight.

A. Yes.
Q. John, the big guy, was fighting.
A. Yes.
Q. John was six feet, five inches tall.
A. Yes.
Q. John is a big man.
A. Yes.
Q. Dave is only five feet seven inches.
A. Yes.
Q. Dave is a much smaller boy.
A. Yes.
Q. John weighed 225 pounds.
A. Yes.
Q. Dave is 155 pounds.
A. About that.
Q. John was a much bigger person.
A. Yes.
Q. John was a much heavier person.
A. Yes.
Q. And then John was hitting Dave.
A. Yes.
Q. He was hitting Dave with his fists.
A. Yes.
Q. He was hitting Dave in the face.
A. Yes.
Q. John was hitting Dave, and his fists were bloody.
A. Yes.
Q. And as you watched, you saw the blood on Dave’s face.
A. Yes.
Q. You saw John beating down on Dave in the face, with his fists.
A. Yes.”

The use of short questions allows the examiner to probe the witness and to
see how far he or she is prepared to go in agreeing with the examiner’s
questions. The following example, taken from the Lizzie Borden trial, illustrates
the point: reprinted in John A. Olah, The Art and Science of Advocacy,
(Toronto: Thomson Carswell, 1990), vol. 2, pp. 12-12-12-13.

“Q. You were called Maggie?

A. Yes sir.
Q. By Miss Emma and Miss Lizzie?
A. Yes sir.
Q. But that was not unpleasant to you?
A. No sir, it was not.
Q. Not at all offensive?
A. No sir.
Q. Did not cause any ill feeling or trouble?
A. No sir.
Q. Did Mr. and Mrs. Borden call you by some other name?
A. Yes sir, called me by my own right name.
Q. Did you have any trouble there in the family?
A. No sir.
Q. A pleasant place to live?
A. Yes sir, I liked the place.
Q. And for ought you know, they liked you?
A. As far as I know, yes.
Q. It was a pleasant family to be in?
A. I don’t know how the family was; I got along all right.
Q. You never saw anything out of the way?
A. No sir.
Q. You never saw any conflict in the family?
A. No sir.
Q. You never saw the least-any quarrelling or anything of that kind?
A. No sir, I did not…
Q. How was it this Thursday morning [the day of Mr. Borden’s murder]
after they came downstairs?
A. I don’t remember.
Q. Didn’t they talk in the sitting room?
A. I heard her talk as she came along.
Q. Who spoke?
A. Miss Lizzie and Mrs. Borden.
Q. Talking in the sitting room?
A. Mrs. Borden asked some question and she answered very civilly. I
don’t know what it was.
Q. When you heard them talking, they were talking calmly, the same as
anybody else?
A. Yes sir.
Q. There was not, so far as you knew, any trouble that morning?
A. No sir, I did not see any trouble with the family.”

As these examples show, closely tied to short questions is the use of simple
language. The purpose is to promote clarity so that the witness cannot find an
excuse to evade the question. The use of vague language will only serve to
encourage the witness to quarrel about the meaning of the words and thereby
disrupt the flow of the examination. As Geoffrey D.E. Adair says in “On Trial:
Advocacy Skills Law and Practice (2nd ed., Toronto: Butterworths, 2004), p.
345:

“Never use a two-syllable word where a one-syllable word will do.

Counsel will no doubt impress themselves with a magnificent and wide
ranging command of the English language, and they may even gain the
admiration of their opponent; however, there is not much benefit to be
had from an answer that does not capture the attention of the jury
because they are still trying to figure out what the question means. The
point, therefore, is that the questions ought to be put in plain, simple
English. It makes them readily understandable to one and all concerned;
furthermore, it gives the witness little or no excuse for failing to provide a
very direct answer.”

Having emphasized the form of the questions, it remains that an examining

party will not be able to take full advantage of an examination without listening
to the answers. In “Cicero on Cross-Examination”, The Litigation Manual, 2nd
ed. (Section of Litigation, American Bar Association, 1989) Irving Younger
wrote about the importance of listening:
“From time to time a witness will say something extraordinary. It is
contradicted by other testimony; it is contrary to human experience; it is
inconsistent with the way the universe is organized. Yet the cross-
examiner goes heedlessly on, as if somehow he hasn’t heard the
answer. Correct. He hasn’t heard the answer, and the reason he hasn’t
heard it is that he wasn’t listening, and the reason he wasn’t listening is
that he was so immersed in his own fright that he had left no reserve of
attention for listening to the witness. Fright is natural, but if the lawyer
wishes to be a true advocate he must train himself to overcome it. Not
that fright ever disappears. It does not. It must be mastered, however,
controlled, limited, so that the cross-examiner can turn from himself and
listen to the witness.”

One of the more famous recent lessons in the importance of listening arose
during the examination of Bill Clinton during the impeachment process.
Questioned before a grand jury, the President was asked to comment on
answers given by his counsel in an earlier deposition in the Paula Jones
lawsuit. The questioning went as follows:

“Q. The statement of your attorney, Mr. Bennett, at the Paula Jones
deposition. Counsel is fully aware that Ms. Lewinsky is filing, has an
affidavit which they were in possession of, saying that there was
absolutely no sex of any kind in any manner, shape or form with
President Clinton. That statement was made by your attorney in front of
Judge Susan Webber Wright.
A. That’s correct.
Q. Your – that statement is a completely false statement. Whether or not
Mr. Bennett knew of your relationship with Ms. Lewinsky, the statement
that there was no sex of any kind in any manner, shape or form with
President Clinton was an utterly false statement. Is that correct?
A. It depends on what the meaning of the word is means. If is means is,
and never has been, that’s one thing. If it means, there is none, that was
a completely true statement.”

This sequence of questions became immortalized, and endlessly replayed, as

President Clinton dancing on the head of a pin: “It depends on what the
meaning of the word is is.” What was not remarked upon however was the
failure of the examiner during the earlier deposition to listen carefully and nail
down the evidence, thereby opening the door to this response.

Finally, the importance of being persistent cannot be overemphasized. The

witness must be made to understand that evasion will not be allowed to occur.
If the witness does not answer the question, simply repeat it. And if that
doesn’t work, the witness can be told that the parties will have to stay around
all night, or until the cows come home, but you are going to insist on receiving
a proper response. Admissions may have to be wrung out of the witness but, if
the transcript is ultimately read in at trial, these tactics will not go over well with
the judge or jury.

As with other aspects of advocacy, learning to control a witness comes with

experience. I believe however that use of the principles referred to is at least a
good place to start.