In Interhealth Canada Limited v. O’Keefe, 2023 ONCA 368, the Ontario Court of Appeal considered an appeal by the plaintiff, Interhealth Canada Limited (“Interhealth”), of a decision by the Ontario Superior Court of Justice.
While the case was appealed on both substantive and procedural grounds, this blog post will focus primarily on the procedural grounds of appeal under the Rules of Civil Procedure.
History of the Litigation:
The plaintiff in this matter, Interhealth Canada, alleged that the defendant, Michael O’Keefe, breached his fiduciary duty to the plaintiff. Mr. O’Keefe was the former Chief Executive Officer and a director of Interhealth until his resignation in October 2005. The plaintiff alleged that after Mr. O’Keefe’s resignation, Mr. O’Keefe diverted two corporate business opportunities away from Interhealth to the co-defendant Canadian Hospital Network International (CHNI), a corporation in which Mr. O’Keefe held a 15% ownership interest.
After an 18-day trial, the trial judge found that the two business opportunities the appellant alleged did not fairly belong to the plaintiff in the circumstances, and as such found no breach of fiduciary duty on the part of Mr. O’Keefe or CHNI.
Issues in Dispute:
The substantive grounds of appeal concerned whether the trial judge made several palpable and overriding errors in her interpretation and application of the relevant case law in reaching her conclusion that the defendants did not breach their fiduciary duties.
However, this blog post will focus on the procedural grounds of appeal, namely:
- That the trial judge had conducted a “trial by stopwatch” and deprived the plaintiff of due process by unreasonably cutting off plaintiff’s counsel at trial before they could complete the cross-examination of the defendant and another key witness.
- The trial judge erred in dismissing the plaintiff’s motion to recall Mr. O’Keefe for cross-examination pursuant to rule 53.01(3) of the Rules, and also by refusing to admit two affidavits.
1) “Trial by Stopwatch”
The Court of Appeal began by finding that the plaintiff’s characterization of the trial as a “trial by stopwatch” was not unfair, and refused to endorse such a strict “time’s up” approach that was applied by the trial judge. However, the Court was not persuaded that the conduct of the trial judge amounted to prejudice or warranted a new trial.
The ONCA noted that the trial was conducted virtually during the COVID pandemic. The schedule of the trial was set by counsel and frequently updated. Eight (8) witnesses testified. The trial judge was very clear that if the trial was not completed in the allotted and scheduled time, additional court time would be months into the future. Furthermore, the trial judge at the outset of the trial warned all counsel that she would cut parties off if they exceeded their allotted time.
Plaintiff counsel had cross-examined Mr. O’Keefe for over two days and had cross-examined another witness for half a day when the trial judge informed them on both occasions that they were to cease examining the witnesses and that this was a “hard stop”.
The Court of Appeal discussed the delicate balance between the deference that is owed to trial management decisions, given that judicial resources are scarce and were particularly scarce during the heart of the pandemic, with the importance of ensuring that relevant and material evidence is heard by the trier-of-fact. The court, citing the decision in R. v. Samaniego, 2022 SCC 9, at paras 22, 25, found that “ the trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency”.
The Court of Appeal indicated that where counsel seeks an extension of time agreed or fixed for cross-examination, and has not been “unduly repetitive, rambling, argumentative, misleading or irrelevant, it is prudent for a trial judge to inquire as to what additional questions counsel wishes to ask” and how much further time is required before cutting them off.
Such a process would not create delay and would allow the trial judge to assess the relevance and materiality of the counsel’s proposed line of further inquiry. The Court noted that whether the pace of cross-examination has been slowed by unreasonable objections of opposing counsel may be a relevant factor in providing such an extension.
In the present case, the trial judge did not ask counsel for the plaintiff what additional questions were being sought and how much longer they required. The Court of Appeal found that the trial judge may have concluded that plaintiff counsel had failed to focus and get to the point, but there was no comment in the record or her decision to that effect.
However, the Court of Appeal noted that the plaintiff never put on the record what additional lines of inquiry they sought to pursue and why. While counsel maintained that nothing could have changed the trial judge’s mind, the Court of Appeal found that counsel should have put this on the record, nonetheless.
Furthermore, the Court of Appeal found that the plaintiff failed to outline in their factum on appeal what the additional lines of inquiry were or why they were prejudiced by the inability to ask further questions. After being pressed during oral hearings before the Court on what further lines of inquiry were requested, the Court of Appeal found that based on the suggested lines of inquiry, the plaintiff would not have been prejudiced by their inability to ask further questions of the witnesses on cross-examination.
2) The Recall Motion
On day 15 of the trial, after both the parties closed their cases, the plaintiff/appellant brought a motion pursuant to Rule 53.01(3) of the Rules of Civil Procedure to recall Mr. O’Keefe for further cross-examination on two allegedly newly discovered affidavits, neither of which was sworn by Mr. O’Keefe. Those affidavits had been filed in a different application. During the trial, the plaintiff had cross-examined one of the affiants of those affidavits and was permitted and used this affidavit to attempt to impeach him.
In their motion, the plaintiff alleged that the affidavits disclosed relevant information relating to one of the business opportunities at issue in this case and that the respondents should have disclosed the affidavits in their affidavit of documents. As such, the fair thing would have been to permit the plaintiff to recall Mr. O’Keefe and cross-examine him and/or admit the affidavits into evidence. The trial judge declined to do so and dismissed the recall motion as unreasonable.
The Court of Appeal upheld the trial judge’s decision and found that the trial judge’s decision was consistent with the factors and principles in Griffi v. Lee, 2005 CanLII 48316 (ONSC) for which to grant a motion to recall a witness, which include:
- Presence or absence of an explanation for recall;
- Whether counsel for the moving party made a conscious informed decision to conduct their case in a certain fashion;
- Maintaining the integrity of the Rules;
- Whether the recall is necessary to correct a misapprehension of the law by counsel;
- Whether the recall is necessary to correct some other mistake;
- Whether questions were omitted due to inadvertence;
- Whether intervening events render the recall necessary;
- The state of the evidentiary record.
- The effect on opposing party and prejudice;
- Balance and fairness; and
- Costs, which may be ordered payable by the counsel whose error made the recall necessary.
The Court of Appeal found that the trial judge had applied this multi-factorial approach and found that the plaintiff had been aware of the existence of the affidavits in dispute since 2008 and had questioned Mr. O’Keefe about them in examinations for discovery. The trial judge also agreed with O’Keefe’s position that that the plaintiffs had taken no steps in the intervening years to bring a motion to deal with this issue. The trial judge also considered that the recall motion was brought in the late stage of the trial.
The plaintiff argued at trial and on appeal that the recall was warranted solely on the basis of relevance. However, both the trial judge and Court of Appeal rejected this position, and found that the correct question was whether there would be a “failure of justice” should Mr. O’Keefe not be recalled. 
Both the trial judge and the Court of Appeal found that no such failure of justice occurred with the denial of the recall motion.
Therefore, the panel of the Ontario Court of Appeal dismissed both of the procedural grounds raised by the plaintiff on appeal.
While they did not endorse the “trial by stopwatch” approach employed by the trial judge, the Court of Appeal nonetheless found that the plaintiff failed to adduce evidence of any prejudice from their failure to further cross-examine the witnesses in question.
Furthermore, the Court of Appeal upheld the decision of the trial judge to deny the recall motion under Rule 53.01(3), finding that no failure of justice would occur if the defendant, Mr. O’Keefe were not recalled for further cross-examination.
Conclusion and Takeaways:
At its broadest, this decision stands as a warning to counsel that Courts will not provide unlimited and unrestrained opportunities for counsel to examine or cross-examine parties at trial, to be mindful of timelines for trial, and their pace and/or conduct of the trial. This decision reinforces that trial management decisions that concern scarce judicial resources will be given due deference.
More narrowly, this decision serves as a warning that before asking for an extension of time, counsel must be prepared to outline the proposed additional line of inquiry of their questions, and why they would be prejudiced should they be unable to ask those questions.
The decision also upholds the multi-factorial approach outlined in Griffi v. Lee for the determination of whether a witness ought to be recalled for examination. It also confirms that relevance alone is not a sufficient basis for the granting of the motion to recall a witness. A moving party must demonstrate a “failure of justice” should the witness not be recalled.
 Interhealth Canada Limited v. O’Keefe, 2023 ONCA 368 at para 1.
 Ibid, at para 5.
 Ibid, at paras 50-51.
 Ibid, at para 52.
 Ibid, at para 53.
 Ibid, at para 54.
 Ibid, at paras 56, 59, and 61.
 Griffi v. Lee, 2005 CanLII 48316 (ON SC), at paras 12-27.
 Interhealth, supra note 1, at paras 66-68.