Jackson v.

Vaughan (City)
Ontario Judgments

Ontario Superior Court of Justice

P. Lauwers J.

Heard: January 27, 2010.

Judgment: February 8, 2010.

Court File No. CV- CV-08-091028

[2010] O.J. No. 527 | 2010 ONSC 909 | 185 A.C.W.S. (3d) 313 | 2010 CarswellOnt 709

Between Linda Jackson, Applicant/Defendant (Moving Party), and The Corporation of the City of Vaughan,
Respondent (Responding Party), And between Mario Campese, Applicant/Defendant (Moving Party), and The
Corporation of the City of Vaughan, Respondent (Responding Party)

(35 paras.)

Case Summary

Civil litigation — Civil procedure — Discovery — Examination for discovery — Time and place — Motions by
counsel for Jackson and Campese in the context of two applications under s. 140 of the Provincial Offences Act
seeking to cross-examine two parties in Newmarket allowed in part — On consent, Rivoire would be cross-
examined — Ball was to be cross-examined as well, but only with respect to the limitation period issue, as the
remaining questions were irrelevant and immaterial — Both cross-examinations would take place in Newmarket —
The parties were situated close to Newmarket where the proceedings originated and would be decided —
Provincial Offences Act, s. 140.

Civil litigation — Civil evidence — Documentary evidence — Affidavits — Cross-examination on — Witnesses —

Examination — Cross-examination — Range of examination — Motions by counsel for Jackson and Campese in
the context of two applications under s. 140 of the Provincial Offences Act seeking to cross-examine two parties in
Newmarket allowed in part — On consent, Rivoire would be cross-examined — Ball was to be cross-examined as
well, but only with respect to the limitation period issue, as the remaining questions were irrelevant and immaterial
— Both cross-examinations would take place in Newmarket — The parties were situated close to Newmarket where
the proceedings originated and would be decided — Provincial Offences Act, s. 140.

Municipal law — Government — Council members — Elections — Contested elections — Offences — Motions by

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Jackson v. Vaughan (City)

counsel for Jackson and Campese in the context of two applications under s. 140 of the Provincial Offences Act
seeking to cross-examine two parties in Newmarket allowed in part — On consent, Rivoire would be cross-
examined — Ball was to be cross-examined as well, but only with respect to the limitation period issue, as the
remaining questions were irrelevant and immaterial — Both cross-examinations would take place in Newmarket —
The parties were situated close to Newmarket where the proceedings originated and would be decided —
Provincial Offences Act, s. 140.

Motions with respect to cross-examination of two parties in the context of two applications under s. 140 of the
Provincial Offences Act. The applicant Linda Jackson applied for orders in the nature of prohibition and certiorari
quashing the information and the summons relating to alleged offences under the Municipal Elections Act. Mario
Campese, Jackson's husband and campaign manager, brought a similar application. Counsel for the applicants
presently moved to cross-examine a Mr. Ball, a law partner of the party Wilkins, who swore the informations, under
Rule 39.03, and a Mr. Rivoire, a law clerk who swore affidavits in the applications. Counsel sought to cross-
examine Ball on the limitation period, his lack of authority to prosecute, his lack of authority to swear the
information, and the lack of jurisdiction to prosecute Campese where there was no compliance audit under the
Municipal Elections Act. Counsel also sought an order that the examinations take place in Newmarket. The City of
Vaughan was prepared to allow Rivoire to be cross-examined, but only if such took place in Kingston, Ont.
HELD: Motions allowed in part.

Rivoire could be cross-examined on consent, and Ball could be cross-examined, but only with respect to the
limitation period issue. Both cross-examinations were to occur in Newmarket. The parties were situated close to
Newmarket where the proceedings originated and would be decided. It was only fair that cross-examinations occur
there. Cross-examination of Ball on the issue of knowledge relevant to the limitation period was relevant and
material and was properly the subject of cross-examination under Rule 39.03. Considerations of litigation and
judicial economy suggested that it would be best if the issue were canvassed in cross-examination before the return
of the application on Feb. 26, 2010 and before any trial. However, the questions addressed to Ball on subjects other
than the limitations period were irrelevant and immaterial to the matters raised in the application. The other grounds
were an amalgam of legal argument and factual assertion. None of the adjudicative facts were in dispute.

Statutes, Regulations and Rules Cited:

Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 15(4)

Municipal Elections Act, 1996, S.O. 1996, c. 32, Schedule, s. 92(4) C

Ontario Rules of Court, Rule 1.04(2), Rule 39.02, Rule 39.03(1)

Provincial Offences Act, R.S.O. 1990, c. P.33, s. 140

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Jackson v. Vaughan (City)

Counsel

Morris Manning and Theresa R. Simone, for the Applicant/Defendant.

George H. Rust-D'Eye, for the Respondent.

Morris Manning and Theresa R. Simone, for the Applicant/Defendant.

George H. Rust-D'Eye, for the Respondent.

REASONS FOR DECISION

P. LAUWERS J.

1 These motions occur in the context of two applications under section 140 of the Provincial Offences Act.

2 Linda Jackson brings an application for orders in the nature of prohibition and certiorari quashing the information
and the summons relating to alleged offences under the Municipal Elections Act for a number of reasons that will be
explored on the argument of the application.

3 Mario Campese, brings a similar application for similar reasons. Mr. Campese is Ms. Jackson's husband and was
her campaign manager in the election campaign that underlies the prosecutions.

These motions

4 Mr. Manning, on behalf of Ms. Jackson and Mr. Campese, seeks to cross-examine Anthony Ball, who swore the
informations, and Thomas Rivoire, who has sworn affidavits in the applications. Mr. Manning also seeks an order
that the examinations take place in Newmarket.

Factual background to these motions

5 The underlying facts are set out in my decision in the case of Jackson v. The Corporation of the City of Vaughan,
LECG Canada Ltd., Ken Froese, and Timothy Wilkin, released March 11, 2009, which is currently under appeal.

6 The notices of application make reference to my earlier decision in which I said, at paragraph [107]: "The City,
according to Mr. Lord, expects that in furtherance of the prosecution an information will be sworn by an employee of
the City; that will form the basis of the prosecution, it being quite plain that a corporation cannot swear an
information. Mr. Wilkin will act as the prosecutor."

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Jackson v. Vaughan (City)

7 As it turns out, however, two informations were sworn on April 17, 2009 by Anthony Ball, a law partner of Mr.
Wilkins, before Justice of the Peace Richard C.P. Sculthorpe in the Provincial Offences Court in Kingston, Ontario.
Sixty-eight charges were laid against Ms. Jackson and five charges were laid against Mr. Campese. These
informations are at issue in the application. In addition, Justice of the Peace Sculthorpe duly issued summonses as
against Ms. Jackson and Mr. Campese out of the Provincial Offences Court in Kingston on April 17, 2009. These
summons are also at issue in this application.

8 Counsel for Ms. Jackson and Mr. Campese appeared on their behalf on a first appearance in Newmarket at
Provincial Offences Court on May 29, 2009, as well as on a second appearance there on August 7, 2009.

9 Since then, Regional Senior Justice Regis of the Ontario Provincial Court has exercised his jurisdiction under
section 15(4) of the Justices of the Peace Act and has directed that a hearing of the offences be heard by a judge of
the Ontario Court of Justice.

Thomas Rivoire

10 Thomas Rivoire, who is a law clerk, swore an affidavit in each of the applications which lays out the
documentary background to the prosecutions and attaches as exhibits a series of documents in the respondent's
application record that serves to complete the documentary history. He sets out what are effectively the adjudicative
facts, none of which are in dispute.

11 Mr. Manning wishes to cross-examine Mr. Rivoire on both of his affidavits in Newmarket. The request to cross-
examine Mr. Rivoire is permitted under Rule 39.02 since he swore an affidavit in the application itself. I heard
virtually no other argument about Mr. Rivoire. It appears that the City of Vaughan was prepared to allow Mr. Rivoire
to be cross-examined, but only if that took place in the City of Kingston.

Anthony Ball

12 In respect of the cross-examination of Mr. Ball, Mr. Manning invokes Rule 39.03 of the Rules of Civil Procedure,
which provides that: "A person may be examined as a witness before a hearing of a pending motion or application
for the purposes of having a transcript of his or her evidence available for use at the hearing."

13 Mr. Manning raises two issues: The first is whether he should be permitted to cross-examine Mr. Ball on the
informations that he swore. Because this issue was highly contested, I must assume that the City of Vaughan has
refused to produce him for that purpose. I will proceed by analogy to a cross-motion brought by the City of Vaughan
to prevent the cross-examination of Mr. Ball (Rule 1.04(2)).

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Jackson v. Vaughan (City)

Place of Cross-examination

14 The second issue is whether any cross-examinations should be required to be held in Newmarket rather than in
the City of Kingston.

15 On this issue, Rule 34.03 provides that the examination of a witness in Ontario will occur "in the county in which
the person resides" unless the court orders otherwise. Mr. Manning submits that it is plain and obvious that the
expense associated with counsel and their entourages heading to Kingston for cross-examinations would impose
unrecoverable costs on the applicants that are unfair in the circumstances. After all, he submits, it is the City of
Vaughan that chose to hire counsel based in the City of Kingston, and the City Vaughan should therefore absorb
any coincidental costs associated with that selection of counsel.

16 I agree. The parties are situated close to Newmarket where the proceedings originated and will be decided; it
only seems fair that cross-examinations should occur here.

Cross-examination under Rule 39.03

17 Mr. Manning seeks to cross-examine Mr. Ball pursuant to Rule 39:03, which provides:
39.03(1) Subject to Rule 39.02(2), a person may be examined as a witness before the hearing of a pending
motion or application for the purpose of having a transcript of his or her evidence available for use at the
hearing.

18 Although neither the rule itself nor its predecessor Rule 230 contain an internal limitation, decisions have
permitted judicial supervision. In Re Canada Metal Co. Ltd. v. Heap (1975), 7 O.R. (2d) 185 (C.A.) Arnup J.A. held
that the party issuing the subpoena bears no onus of proving justification when it is attacked. He held that: "The
evidence sought to be elicited must be relevant to the issue on the motion. If it is, there is a prima facie right to
resort to Rule 230. That right must not be so exercised as to be an abuse of the process of the court." Arnup J.A.
went on to note that such an abuse arises if the main motion is itself an abuse because it is frivolous and vexatious
or where the process is being used for an improper purpose.

19 The standard of "relevance" is not to be judged too stringently: Transamerica Life Insurance Company of
Canada v. The Canada Life Assurance Company (1996), 27 O.R. (3d) 291 (Gen. Div.) at page 299 per Sharpe J.
Perhaps the better way to describe the standard is "potentially relevant": Heslin v. Verbeeten [2001] O.J. No. 1602
(S.C.J.) per Cullity J. at paragraphs 7-10. And see 1632842 Ontario Ltd. v. Great Canadian Gaming Corp. [2008]
O.J. No. 3079 (S.C.J.) Newbould J. at paragraphs 8-10.

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Jackson v. Vaughan (City)

20 Examinations are not to be the equivalent of examinations for discovery: 1632842 Ontario Ltd. at paragraph 10.
They are not to be "fishing expeditions": Bearden v. Lee [2005] O.J. No. 1583 per G. Speigel J. at paragraph 18.

21 Counsel made reference to cases originating in criminal law. In National Post v. Canada [2002] O.J. No. 4752
(per Benotto J.), there was an application to cross-examine a police officer on an information sworn in support of a
general warrant and assistance order obtained from the Ontario Court of Justice. The principles in R. v. Garofoli
(1990), 60 C.C.C. (3d) 161 (S.C.C.) were invoked. Cross-examination was permitted. Benotto J. held at paragraph
12: "If the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the
authorization, it will be allowed".

22 A comprehensive review of the relevant principles is set out in the decision of C.Hill J. in R. v. Pham [2009] O.J.
No. 4296 at paragraph 14. The decision concerned applications by several accused to cross-examine a wiretap
affiant. Hill J. gave leave to cross-examine, noting at paragraph 21: "Relevance and materiality stand as essential
criteria."

23 I am somewhat reluctant to import criminal law concepts into a motion under Rule 39.03 of the Rules of Civil
Procedure, even though the underlying issue involves a quasi-criminal prosecution, but it seems obvious that if
cross-examination is not likely to be either relevant or material, or of probative value, a summons can be set aside.
Proceeding under those circumstances might even be characterized as abusive.

The Issues for Cross-examination

24 Mr. Manning raises four issues on which he submits that Mr. Ball's evidence would be helpful:

(a) The limitation period;

(b) Mr. Ball's lack of authority to prosecute;

(c) The lack of authority in Mr. Ball to swear the information; and

(d) In respect of Mr. Campese specifically, the lack of jurisdiction to prosecute him where there was no
compliance audit under the Municipal Elections Act.

The limitations issue

25 Section 92(4) of the Municipal Elections Act, 1996 provides:

No prosecution for contravention of any sections 69 to 79 shall be commenced more than one year after
the facts on which it is based first came to the informant's knowledge.

26 Mr. Manning notes that emails sent from Timothy Wilkin to Ken Froese demonstrate that both Mr. Ball and his

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Jackson v. Vaughan (City)

partner, Mr. Wilkin, participated in the obtaining of evidence for the compliance audit in respect of Ms. Jackson and
in the gathering of facts in order for Mr. Ball to become an informant. Mr. Manning argues that Mr. Ball "as the
informant, it is the best person to give evidence as to what information the City had and at what point in time it had
it, thereby assisting the court on the limitations issue".

27 It is to be noted that the one year limitations period is not comprehensive but relates only to the informant. Mr.
Manning seeks to show that Mr. Ball had the requisite information more than one year before he swore the
information on May 29, 2009. If so, the information is liable to be quashed.

28 Although I could rule that this is a matter for defence and should await trial as in R. v. Khan [2009] O.J. No. 111,
considerations of litigation and judicial economy suggest that it would be best if the issue were canvassed in cross-
examination before the return of the application on February 26, 2010 and before any trial.

29 I therefore find that cross-examination of Mr. Ball on the issue of knowledge relevant to the limitation period is
relevant and material, and is properly the subject of cross-examination under Rule 39.03.

The remaining grounds

30 I have a different view of the other grounds raised by Mr. Manning. They are an amalgam of legal argument and
factual assertion. It seems to me that none of the adjudicative facts are in dispute.

31 Mr. Manning submits that "Ball, as the informant, is the best person to give evidence as to whether the City
entered into an agreement [with the Province] authorizing the municipality to conduct prosecutions and what
legislative provisions he relied on to comprise a grant of authority to prosecute under the Provincial Offences Act,
thereby assisting the court on the issue of the authority to prosecute." The question as to "what legislative
provisions he relied on to comprise a grant of authority to prosecute" is not a real factual question but a legal
question to be addressed by counsel in argument. If there is no evidence before me of an agreement and one is
required as a matter of law, then the City could be in difficulty.

32 Mr. Manning also submits that "Ball, as the informant, is the best person to give evidence as to how he, as a
non-employee of the City, and as the person different from the one given authority to prosecute by the City under
the statute, purports to have authority to lay charges against [Mario Campese and Linda Jackson]; thereby assisting
the Court on the jurisdictional issue of whether authority exists for the City of Vaughan to conduct the prosecution".
There is no dispute about any of the facts asserted in this paragraph; Mr. Ball is not an employee of the City and the
authority to prosecute was given to Mr. Wilken. These facts may or may not have legal import but that is a matter
for legal argument.

33 Finally, Mr. Manning argues that "Ball, as the informant and as a partner of Mr. Wilken, is the best person to

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Jackson v. Vaughan (City)

give evidence concerning the advice given by Wilken to the respondent in respect of the ability of the City to
authorize a prosecution against the applicant." This justification really amounts to an effort to probe solicitor-client
communications, which are normally privileged, or to cross-examine Mr. Wilken indirectly. Such an effort is in the
nature of a "fishing expedition" and is also abusive. The information that might be generated is not relevant to the
matters in dispute in the applications.

34 For these reasons, I find that questions addressed to Mr. Ball on subjects other than the limitations period are
irrelevant and immaterial to the matters raised in this application.

35 Costs of this motion will be addressed by the parties at the argument of the application.

P. LAUWERS J.

End of Document

Susan Toth