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Whiten v. Pilot Insurance Company et al.
[Indexed as: Whiten v. Pilot Insurance Co.]
27 O.R. (3d) 479
 O.J. No. 227
Court File No. 94-CU-77550-CM
Ontario Court (General Division),
January 25, 1996
* This case is reported only on the rule 53.07 issue. [QL Ed. note: Full text of the omitted portion of this judgment is available at  O.J. No. 227 in the OJ database.]
Civil procedure — Trial — Witnesses — Plaintiff serving notice of intention to call adverse party as witness — Counsel for defendant not calling party as defence witness as means of preventing counsel for plaintiff from obtaining right to cross- examine him pursuant to rule 53.07(3) — Counsel for defendant not permitted to put leading questions to party in examining him — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 53.07.
Counsel for the plaintiff served a notice of intention to call the defendant F as a witness under rule 53.07 of the Rules of Civil Procedure. During his examination of F, counsel for the plaintiff relied on rule 53.07(3) and was permitted to cross-examine him. Counsel for the defendant then sought to cross-examine F and put leading questions to him.
Held, counsel for the defendant was not entitled to cross- examine F.
Once the notice of intention to call F as a witness was served, it was open to counsel for the defendant to call F as a defence witness as a means of preventing counsel for the plaintiff from obtaining the right to cross-examine him pursuant to rule 53.07(3). When he failed to call F to give evidence and failed to undertake to do so, the consequences included having to accept that opposing counsel would then obtain the right to cross-examine F. It would make no sense to interpret rule 53.07 so as to confer on counsel for the defendant an advantage that he would not otherwise have had, namely, the right to cross-examine F, as a reward for failing to call F himself or to give the undertaking.
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 53.07
RULING with respect to theexamination of a witness.
Gary R. Will, for plaintiffs/defendants by counterclaim.
Donald E. Crabbe, for defendants/plaintiffs by counterclaim.
MATLOW J.: —
. . . . .
Shortly after the commencement of the trial of this action, I was required to make a procedural ruling which may be of broader interest than merely to the participants in this action and I indicated that I would later give written reasons for that ruling. What follows are those reasons.
Initially, this action was brought also against Francis who was the adjustor appointed by the defendant immediately following the subject fire. At the end of the plaintiff’s case I granted a motion for a directed verdict with respect to the plaintiff’s claim as against Francis and the action was dismissed as against him.
During the presentation of the plaintiff’s claim, counsel for the plaintiff sought to call Francis to give evidence on behalf of the plaintiff. Prior to then counsel for the plaintiff had complied with rule 53.07 of the Rules of Civil Procedure, which is headed “Calling Adverse Party As Witness” and had served the requisite notice of intention to call Francis as a witness. Rule 53.07 reads as follows:
53.07(1) A party may secure the attendance of a person who is,
(a) an adverse party;
(b) an officer, director or sole proprietor of an adverse party; or
(c) a partner in a partnership that is an adverse party, as a witness at a trial by,
(d) serving the person with a summons to witness; or
(e) serving on the adverse party or the solicitor for the adverse party, at least ten days before the commencement of the trial, a notice of intention to call the person as a witness,
and at the same time paying or tendering attendance money calculated in accordance with Tariff A.
When Adverse Party may be Called
(2) Where a person referred to in subrule (1) is in attendance at the trial, a party may call the person as a witness without previous notice or the payment of the attendance money, unless,
(a) the person has already testified; or
(b) the adverse party or the adverse party’s counsel undertakes to call the person as a witness.
(3) A party calling a witness referred to in subrule (1) may cross-examine him or her.
Failure to Testify
(4) Where a person required to testify under this rule,
(a) refuses or neglects to attend at the trial or to remain in attendance at the trial;
(b) refuses to be sworn; or
(c) refuses to answer any proper question put to him or her or to produce any document or other thing that he or she is required to produce,
the court may grant judgment in favour of the party calling the witness, adjourn the trial or make such other order as is just.
During his examination of Francis, counsel for the plaintiff relied on rule 53.07(3) and was permitted to “cross-examine” him. In this context that meant that he was permitted to put leading questions to Francis even though Francis was a witness called by him.
Counsel for the defendant (there were really then two defendants) then sought to cross-examine Francis and also put leading questions to him just as he would have been entitled to do with respect to non-party witnesses called by counsel for the plaintiff. Objection was made by counsel for the plaintiff and, after hearing submissions, I ruled that counsel for the defendant was not entitled to cross-examine in the usual manner and I restricted his examination by permitting him to ask only non-leading questions.
In my view, the scheme envisaged by rule 53.07 is that, once the notice of intention to call Francis as a witness was served, it was open to counsel for the defendant to call Francis as a defence witness as a means of preventing counsel for the plaintiff from obtaining the right to cross-examine him pursuant to rule 53.07(3). This provided counsel for the defendant with a tactical incentive to call Francis, one of his own clients, to give evidence rather than require his opposing counsel to do so. However, when he failed to call Francis to give evidence and failed to undertake to do so, the consequences included having to accept that opposing counsel would then obtain the right to cross-examine Francis.
It would make no sense, therefore, to interpret the rule so as to confer on counsel for the defendant an advantage that he would not otherwise have, namely, the right to cross-examine Francis, as a reward for failing to call Francis himself or give the undertaking.
The result, admittedly, was somewhat unusual. Counsel for the plaintiff, who called Francis as a witness, was permitted to cross-examine him and opposing counsel, who represented Francis, was restricted to asking non-leading questions during his so-called “cross-examination”. In this context, “cross- examination” was transformed into a mode of questioning by counsel that was different from what “cross-examination” usually entails.
With respect, it is my view that rule 53.07 could be more readily understood if it were to use some word or expression other than “cross-examination” to describe the permissible use of leading questions during an examination-in-chief.
There apparently being no reported case dealing directly with this particular issue, it may be that this analysis will prove useful to the development of the proper interpretation of rule 53.07.
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