At our weekly firm meeting, Angeline Bellehumeur discussed the case of Kaushal v. Vasudeva et al., 2021 ONSC 440.
The court considered a motion by the Applicant to strike the evidence of the Respondent on the basis of misconduct during his cross-examination via Zoom. Specifically, the Respondent was receiving prompts from his son and wife (hand gestures and facial expressions).
The underlying dispute is between the Applicant and Respondent who each own 50% shares of a Franchise, Chuck’s Roadhouse Bar and Grill. The Applicant alleges that the Respondent unilaterally and without the Applicant’s knowledge, increased his salary and that of his son and wife who were employed at the restaurant.
At issue on this motion are serious allegations of misconduct involving the Respondent and his lawyer that took place in November 2020 during a cross-examination on the Respondent’s affidavit via Zoom.
To the knowledge of the Applicant, the Respondent, an interpreter and the Respondent’s lawyer each joined the Zoom call on separate devices while in the same boardroom. The Applicant’s lawyer was careful at the outset to confirm with the Respondent that those were the only people present in the boardroom during the examination. The Respondent’s lawyer confirmed this on the record.
No other person was known to be located in that boardroom during the three-hour examination until the Applicant heard the voices of the Respondent’s son and wife through one of the Respondent’s devices connected to the Zoom meeting after the examination had ended. The Applicant recorded the exchanges he could hear on his cell phone.
The Applicant’s lawyer went back on the record and told the Respondent’s lawyer what the Applicant had heard. The Respondent’s lawyer denied that anyone but himself, the Respondent and the interpreter were in the room during the cross-examination.
The interpreter, however, eventually provided a sworn affidavit that the Respondent’s wife and son were in the boardroom siting across from the Respondent next to the Respondent’s lawyer and prompted the Respondent with answers by hand and facial gestures.
The Respondent provided a sworn affidavit denying the presence of his wife and son, and stated that they were waiting for him in the lawyer’s reception area. His evidence included that his lawyer advised him that the interpreter had been threatened by the Applicant’s lawyer to provide this evidence. The Respondent’s legal assistant also provided a sworn affidavit to the same effect.
The interpreter then swore a further affidavit confirming that he did in fact call the Respondent’s lawyer after the examination to advise him that he received a call from the Applicant’s lawyer asking about what he had heard at the examination and asking him to provide a sworn affidavit of his recollection of the events that day. He was clear that he had not been threatened to provide this evidence.
Justice Gilmore accepted the interpreter’s evidence in its entirety. The legal assistant’s evidence was approached with extreme caution because he relies on the double hearsay from the Respondent’s lawyer without any corroborating evidence. His evidence on cross-examination of this affidavit was given no weight by the court. The evidence of the Respondent was also heavily discounted, as it made bald assertions based on hearsay that the interpreter had been threatened by the Applicant’s lawyer to provide the information contained in his sworn affidavit.
The interpreter’s evidence was accepted in its entirety, including that he was not threatened or coerced by the Applicant’s lawyer. There were email communications between the interpreter and the Applicant’s lawyer to corroborate this evidence.
Further, the interpreter had no particular interest in either party and had never met the Respondent, his wife and son, or the Respondent’s lawyer prior to the November 2020 examination. While she could not confirm that the hand and facial gestures changed the Respondent’s answers at any point during the cross-examination, Justice Gilmore concluded that “the mere fact that they occurred during the course of a three-hour examination leads to no other conclusions than all of the evidence being tainted” (para 53(f)).
Remedy for the Misconduct
Justice Gilmore recognized that this specific mischief would not have taken place in a non-virtual examination, because counsel would have control over who is present in the room. Justice Gilmore found the Respondent’s misconduct to amount to an abuse of process of the court. The affidavit of the Respondent was struck.
Justice Gilmore is clear that this judgement intends to send a strong message that interference in the fact-finding process by abusing or taking advantage of a virtual examination will not be tolerated. This remedy is also appropriate because this misconduct “strikes at the very heart of the integrity of the fact-finding process such that general deterrence is also a factor” (para 65).
The integrity of the Applicant’s lawyer was impugned by the Respondent, the legal assistant, and by inference by the Respondent’s lawyer despite evidence that no such threats occurred. Further, the Respondent’s lawyer was complicit in the abuses which took place during the virtual examinations.
Another cross-examination or court-supervised cross-examination would not suffice as a remedy, as the Respondent is an evasive witness and further examination on the same issues would not remedy his already tainted evidence. Justice Gilmore notes that the Respondent remains able to participate in a defence of his case, as he can still file evidence from third parties.
Since the Applicant did not seek sanctions against the Respondent’s lawyer, an Order was not made to remove the lawyer as counsel. However, Justice Gilmore opined that it would be inappropriate for the Respondent’s lawyer to continue as counsel in this matter.