Court File and Parties

COURT FILE NO.: CV-20-00083470-0000 DATE: 2023-03-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alex Beraskow v. Canadian Internet Registration Authority

BEFORE: Associate Justice A. Kaufman

COUNSEL: Katie Black and Sarah Lag, for the Applicant Todd Burke and Aweis Osman, for the Respondent

HEARD: October 6, 2022, and December 16, 2022

Endorsement

[1] These reasons concern three motions. The parties to this application each bring respective motions to strike paragraphs of affidavits and exhibits under Rule 25.11 of the Rules of Civil Procedure [1]. The applicant also seeks an order to compel the respondent to answer questions that were refused during the cross-examination of its affiant Ryan Black.

[2] The applicant brought a fourth motion to convert this application into an action, but that motion has not been scheduled. The respondent’s affiant was cross-examined in the context of the applicant’s motion to convert. However, the parties agree that the Court’s determination on the motion to compel would bind the parties as if that cross-examination was undertaken in the context of the application itself.

[3] The Court will address the parties’ motions to strike first, followed by the applicant’s refusals motion.

Background

[4] The respondent, Canadian Internet Registration Authority (“CIRA”) is a not-for-profit entity incorporated under the Canada Not-for-Profit Corporations Act [2]. It is a member-based organization best known for managing the “.ca” internet domain.

[5] The applicant, Alex Beraskow, is a member of CIRA and was a member of its Board of Directors from November 1, 2016, until his term expired on November 1, 2019.

[6] The applicant commenced this application on May 4, 2020, and the application was amended on July 29, 2020. The applicant seeks two broad forms of relief.

[7] First, Mr. Beraskow challenges CIRA’s decision to disqualify him as a candidate for CIRA’s Board of Directors as a “member nominee” for the 2019 Election of Directors (the “disqualification decision”). Mr. Beraskow alleges, among other things, that CIRA breached certain of its by-laws and policies, and the rules of procedural fairness. He seeks an Order appointing him as a member of the Board.

[8] Second, Mr. Beraskow requested that the Board provide him with corporate documents before his term expired. He alleged that these documents were required for him to comply with his fiduciary obligation to ensure that the CIRA’s financial affairs are conducted responsibly and transparently. CIRA denied Mr. Beraskow’s request for documents on the ground that it was overly broad, that his term was expiring in three weeks, and that some of the records sought related to issues that had already been considered at previous board meetings. CIRA also questioned the bona fides of his request.

[9] If the Court orders his appointment as a director, Mr. Beraskow seeks an order that CIRA provide him with the requested documents. If the Court declines to appoint him, Mr. Beraskow seeks a declaration that CIRA breached its contractual and statutory obligations when it failed to disclose these documents to him while he was a director.

Mr. Beraskow’s Motion to Strike

[10] Mr. Beraskow seeks an order striking either portions or the entirety of paragraphs 6, 10, 15, 18, 25, 30, 35, 37, 38, 42, 54, 55, 56, 57, 65, 67, 71, 72, 74, 78, 81, 82, 84, 86 and 97 of Mr. Black’s affidavit sworn September 30, 2020. He contends that these paragraphs offend the following Rules: 4.06(2) and 39.01(5) (hearsay on contentious matters) and 4.1.01 and 39.01(7) (statements of opinion proffered by a non-expert).

[11] The impugned paragraphs contain, in general terms, the following:

(a) a description of individual directors’ and CIRA’s Board’s roles and responsibilities, and the sources of their authority;

(b) the Returning Officer for the 2019 election’s qualifications, his role, and a characterization of this position as “independent”;

(c) summaries of board meetings, the business discussed, and how specific issues were resolved;

(d) a description of the “speaking with one voice” principle;

(e) a description of the directors’ orientation program in 2016; and

(f) a description of CIRA’s nomination committee as an independent and arm’s length body.

[12] CIRA responds that preliminary motions to strike affidavits on evidentiary grounds are generally inappropriate, and that determinations of admissibility should be left to the judge hearing the application. I agree. The law recognizes exceptions to the prohibition against hearsay and opinion evidence. The applications judge will be in the best position to make the required rulings based on the totality of the evidence.

[13] Rule 25.11, with necessary modifications, applies to documents filed on an application. [3] This rule provides that the Court may strike or expunge a document on the grounds that the document may prejudice or delay the fair trial of the action, is scandalous, frivolous or vexatious, or is an abuse of the Courts’ process. Rule 25.11 does not explicitly provide for the striking of documents on evidentiary grounds.

[14] In Allianz Global v. Attorney General of Canada, 2016 ONSC 29 [4], Master MacLeod (as he then was) considered the appropriateness of striking paragraphs of an affidavit on a preliminary motion. He adopted D.S. Ferguson J.’s view, articulated in Neighbourhoods of Windfields Limited Partnership v. Death, [2007] O.J. No. 3042 [5], that “evidence should not be struck on an interlocutory motion unless there is some special reason to do so”. Perrell J. came to the same conclusion in Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069 [6], where he held that it is preferable that the judge or master hearing the substantive motion rule on the admissibility of evidence. The rationales for this approach are:

(a) granting such a preliminary motion will encourage more such motions and contribute to cost and delay;

(b) it is unnecessary to make such rulings in advance because the motions judge will be in an equally good or better position to determine admissibility;

(c) judges frequently learn of and disregard inadmissible evidence and are presumed not to take it into account; and,

(d) the judge hearing the merits can sanction any inappropriate introduction of evidence by disregarding it and awarding costs. [7]

[15] In addition to these compelling rationales, where the motion is brought before a judicial officer who will not be hearing the application, as in this case, there is an additional concern about usurping the application judge’s role. [8] Moreover, striking an affidavit on a separate motion opens the possibility of two sets of appeals, which should generally be avoided.

[16] There are no special reasons for striking the impugned paragraphs in Mr. Black’s affidavit on a preliminary motion.

[17] CIRA argues that Mr. Black is entitled to provide certain opinions as a lay witness, or alternatively, as a witness with special skill, knowledge, training or experience, and whose opinion is based on his own observations and participation in the events at issue. The admissibility of Mr. Black’s opinion evidence, and what (if any) weight to give it, is an issue for the application judge. Determining it for him or her would run the risk of usurping that role.

[18] This motion exemplifies, in my view, the added costs and delay brought about by preliminary motions to strike. This application was commenced almost three years ago. The applicant’s original Notice of Motion is dated February 23, 2021, almost two years ago. It was originally scheduled to be heard on December 14, 2021. Through no fault of the parties, it was originally scheduled before a judge, who adjourned it to be heard by an associate judge as it was within the “court’s” jurisdiction. I heard one day of argument on October 6, 2022, but the hearing did not conclude on that date, and the hearing was continued on December 16, 2022. Even if the application had to be scheduled for hearing over several days to take into account the evidentiary issues raised by the applicant, this application could have been determined long ago.

[19] Mr. Beraskow’s motion is accordingly dismissed.

CIRA’s Motion to Strike

[20] CIRA seeks an order under Rule 25.11 striking the following paragraphs and documents:

(a) paragraphs 57 (last sentence and sub-headings), 58 (first sentence), 86(a), and 86(c)(viii) of the Amended Notice of Application. These paragraphs refer to a journalist enquiring into the termination of the CIRA employees who allegedly discovered inappropriate material on CIRA’s CEO’s work computer (the “whistleblowers”).

(b) paragraphs 95 and 96 of Mr. Beraskow’s June 12, 2020 affidavit. These paragraphs also refer to CIRA’s CEO having inappropriate material on his work computer, and a Toronto Star article detailing allegations about the termination of the whistleblowers (the “Toronto star article”).

(c) exhibit “Y” to Mr. Beraskow’s June 12, 2020 affidavit, which is the Toronto Star article dated December 13, 2019.

(d) paragraphs 31-35 of Mr. Beraskow’s April 28, 2021 affidavit. These paragraphs allege that CIRA refused to properly investigate the whistleblowers’ termination. These paragraphs also summarize the contents employment lawyer’s letter sent to CIRA executives on behalf of an anonymous client (the “lawyer’s letter”). The employment lawyer asks the Board to investigate the circumstances surrounding the termination of the whistleblowers. Mr. Beraskow alleges that he does not know how this issue was resolved.

(e) exhibits “E” and I” to Mr. Beraskow’s April 28, 2021 affidavit. Exhibit “E” is a document entitled “CRC update to CIRA Board” and is a memorandum outlining recommendations for the CEO’s salary for the 2020 financial year. Exhibit “I” is a copy of the lawyer’s letter.

[21] Before his term expired, Mr. Beraskow requested details of “financial settlements for all employees whose employment was terminated by CIRA in each of the past three years”. Mr. Beraskow alleges that CIRA employees were terminated after they witnessed inappropriate content on CIRA’s CEO’s work computer. He also alleges that these employees were provided with severance packages that exceeded their legal entitlements, presumably to keep them quiet. Mr. Beraskow alleges that he was entitled to obtain disclosure of the whistleblowers’ financial settlements to discharge his fiduciary duties as a director, and that CIRA’s alleged inaction exposes him to personal liability.

[22] As referred to above, Rule 25.11 provides that the Court may strike or expunge all or part of a pleading or other document on the ground that it may prejudice or delay the fair trial of the action, is scandalous, frivolous or vexatious or is an abuse process. [9] Documents that demonstrate a complete absence of material facts, constitute bare allegations, or include unfounded and inflammatory attacks on a party’s integrity may be struck under Rule 25.11. [10]

[23] CIRA argues that the impugned paragraphs and documents contain scandalous allegations designed to impugn a CIRA employee’s integrity, and are incapable of affecting the outcome of this proceeding. It claims that the references to these unfounded allegations of workplace reprisals are not probative of any material fact necessary to establish Mr. Beraskow’s claim for reinstatement, or the declaratory relief sought. I am not persuaded by these submissions.

[24] CIRA portrays Mr. Beraskow as a disgruntled director who made a wide-ranging request for documents for an improper purpose, just as his term was about to expire. CIRA responded to Mr. Beraskow’s request for documents by telling him that it “had little confidence that sensitive and confidential information regarding CIRA’s human resources would not be used for some collateral purpose other than Board oversight”.

[25] CIRA pleads that Mr. Beraskow’s right to the records requested is a matter of statutory interpretation, and that there is no need to taint the record with allegations that can neither be resolved nor adjudicated. I agree with CIRA that this application is not the forum for determining the merits of the whistleblowers’ allegations. However, CIRA does not rely solely upon principles of statutory interpretation to defend its decision to deny Mr. Beraskow’s requests for documents. It relies, at least in part, on allegations that Mr. Beraskow’s request was made for improper purposes. Whether or not a director’s request for financial documents is made for an improper purpose is a relevant consideration in this application. [11]

[26] I accept that the employees’ allegations are somewhat embarrassing, but I do not accept that referring to them in Mr. Beraskow’s affidavit constitutes gratuitous mudslinging designed to besmirch CIRA employees, or that they have no relevance to the remedies sought. It would be unfair to allow CIRA to question Mr. Beraskow’s motivations without permitting him to explain the basis and context of his request as they were known at the time.

[27] CIRA asks that a Toronto Star article that describes the whistleblowers’ allegations be struck because it is dated after the end of Mr. Beraskow’s tenure as a director, and because it is hearsay. I decline to strike it for two reasons. First, Mr. Black referred to this article in cross-examination and testified that the whistleblowers alleged that they were wrongfully terminated as “part of a campaign that later became the subject of the Toronto Star article”. The article is necessary to understand Mr. Black’s answer. The article explains the employees’ allegations that gave rise to the severance payments. Secondly, the article constitutes some evidence that the whistleblowers’ allegations were a matter of public interest. Finally, as mentioned above, the fact that a party relies on evidence which may not be admissible is not a reason, of itself, to strike an affidavit on a preliminary motion.

[28] CIRA also asks that exhibit “E” to Mr. Beraskow’s April 28, 2021 affidavit be struck. That exhibit is a summary of in-camera deliberations of the Compensation and Review Committee (“CRC”) and includes recommendations on the CEO’s salary, bonuses, and benefits. CIRA already disclosed a copy of this document in its application record, but redacted the numerical values, including the recommended salary, bonus, and their relationship to comparators in the industry.

[29] Mr. Beraskow responds that, according to caselaw, the only grounds upon which one can redact a document is if it is privileged, if it would cause significant harm to the producing party, or if it would infringe a public interest deserving of protection. In so far as Mr. Beraskow argues that it is improper to redact irrelevant information when filing a document in court, I disagree. The cases Mr. Beraskow relies upon concern disputes over productions at the discovery stage, where one party redacts a document and deprives the opposing party of the opportunity to consider the relevance of the redacted parts. There is nothing inappropriate about redacting personal or sensitive information that is otherwise irrelevant when filing a document with the court. It occurs frequently. As a best practice, parties should advise opposing parties of their intention to redact irrelevant information in advance and obtain their consent.

[30] Here, Mr. Beraskow takes the position that the redacted information is relevant because it demonstrates that the CEO received a raise following the alleged whistleblowers’ allegations. It is not clear how the CEO’s raise relates to Mr. Beraskow’s disqualification as a director, or to his entitlement to corporate documents. That said, the Court declines to strike this document on grounds of admissibility. [12] If the redacted portions are determined to be irrelevant and disclosed inappropriately, CIRA may request a sanction by way of a costs order.

[31] While I am dismissing CIRA’s motion, I agree with it that the merits of these whistleblowers’ allegations are not at issue in this application. What is at issue in this application is Mr. Beraskow’s entitlement to records he alleges were required to discharge his duties as a director. Mr. Beraskow may, however, present evidence about the circumstances surrounding, and the reasons for, his request for documents, as they were known to him at the time.

Mr. Beraskow’s Refusals Motion

[32] CIRA objected to 186 questions or requests for undertakings when its affiant was cross-examined. Almost all the objected questions relate to the alleged whistleblowers’ allegations, and to CIRA’s response to them.

[33] Pursuant to Rule 34.12(3), Mr. Beraskow may seek a ruling on the propriety of a question that is objected to and not answered by motion to the court.

[34] Perell J. summarized the principles applying to cross-examinations on affidavits filed on a motion or application in Ontario v. Rothmans Inc., 2011 ONSC 2504 [13]:

142 Case law has determined what are proper questions for a cross-examination on an affidavit. Once again, relevancy is a key determinant of a proper question, and relevancy is determined by reference to the matters in issue in the motion in respect of which the affidavit has been filed and by the matters put in issue by the deponent's statements in the affidavit. The scope of the cross-examination for an application or motion only coincidentally will be commensurate with the scope of an examination for discovery.

143 The case law has developed the following principles about the scope of the cross-examination of a deponent for an application or motion:

• The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery.

• A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure.

• The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion.

• The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent's evidence.

• If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the court.

• The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion.

• A question asked on a cross-examination for an application or motion must be a fair question.

• The test for relevancy is whether the question has a semblance of relevancy.

• The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent.

• The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information.

• The deponent for a motion or application who deposes on information and belief may be compelled to inform himself or herself about the matters deposed. (Citations omitted).

[35] As stated above, relevancy is a key determinant of a proper question. Relevancy is determined by reference to the matters in issue in the application, and by the matters CIRA put in issue in its responding affidavit.

[36] In this application, Mr. Beraskow requests an Order that he be provided with certain documents if reinstated or, in the alternative, a declaration that he was entitled to the requested documents. He argues that he had a duty to seek disclosure of relevant materials to discharge his director’s duties. The specific documents he requested are:

(a) the debt obligation registry of the corporation;

(b) the compensation structure (salary, benefits, severance package, vacation and accrued vacation leave, car allowance, paid parking) for the CEO;

(c) the Stratford Proposal to determine comparable CEO salaries, including CIRA’s Request for Proposal (hereinafter “RFP”) and terms of reference, if any, and cost of their services for each of the past three (3) years;

(d) comparable proposals to the Stratford Proposal to determine comparable CEO salaries, including the CIRA RFP;

(e) the breakdown of line items $1,703 in the 2019 financial statements and $1,380 in the 2018 financial statements for consulting fees, by firm;

(f) all senior leadership team compensation packages (salaries, benefits, severance, etc.) for each of the past two (2) years for Sanita Alias, Steven Barry, Dave Chiswell, Andrew Fraser, David Fowler, Paul Havey (“Mr. Havey”) and Jacques Latour;

(g) all education and/or continuing professional development costs/fees paid for by CIRA for the Board of Directors for the past three (3) years on an annual basis and broken down by cost and person;

(h) all costs associated with the attendance of board members and staff to ICANN meetings and sessions for the past three (3) years broken down by costs and person;

(i) the costs for the independent Returning Officer for the past three (3) years; CIRA terms of reference; the proposal to CIRA as well as the Returning Officer’s reports for each of the past three (3) years; and,

(j) details on the financial settlements for all employees whose employment was terminated [by] CIRA in each of the past three (3) years.

[37] Most of CIRA’s refusals relate to the last category of requested documents: “details of financial settlements given to former CIRA employees in the preceding three years”. Mr. Beraskow alleges that these settlements followed allegations that certain CIRA employees witnessed inappropriate content on the CIRA’s CEO work computer, that they were terminated, and that they received “pay-outs at twice the rate of their legal entitlement”. Mr. Beraskow asserts that these documents should have been disclosed to determine these settlements’ financial impact on CIRA.

[38] CIRA admits that the inappropriate content on the CEO’s computer was of a sexual nature, and it admits that the terminated employees alleged “that they were terminated as part of some sort of campaign that later became the issue in the Toronto Star article”.

[39] The questions that are the subject of this refusals motion fall within five broad categories.

Questions that seek to establish a link between the alleged whistleblowers’ allegations, the severance payments, and Mr. Beraskow’s duties as a director

[40] As already stated above, the bona fides of Mr. Beraskow’s request is a relevant consideration in this application. Mr. Beraskow says that he was entitled to details of the severance payments to establish their impact on CIRA’s finances. The documents were requested amid allegations of inappropriate conduct and generous pay-outs. Questions seeking to confirm these allegations (not their truth) and their potential impact on CIRA’s affairs (financial or reputational) provide context for his request, and are relevant to Mr. Beraskow’s bona fides. I should add that the CIRA’s reputational and financial impacts are intertwined because Mr. Beraskow alleges that employees received unusually high severance packages to avoid embarrassment on the part of CIRA.

[41] The following questions fall into this category and must be answered: 1, 6, 7, 8, 9, 10, 11, 12, 17, 21, 22, 31, 46, 47, 48, 49, 52, 53, 57, 61, 93/94 (this is the same question), 98, 101, 106, 107, 112, 120, 121, 122, 123, 124, 125, 126, 127, 129, 146, 147, 148, 155, 156, 157, 159, 160, 161, 162, 163, 164, 165, 168, 169, 170, 171, 172 and 173.

[42] Question 32 need not be answered because it was conceded.

[43] Questions 102, 103, 104, 105, 108, 110, 113, 139, 149, 150, 151 need not be answered because the letter/e-mail at issue speaks for itself.

Questions about CIRA’s response to Mr. Beraskow’s request for documents

[44] Mr. Beraskow asked questions about CIRA’s internal treatment of his request for documents. The respondent has answered questions 178-186 but asserts privilege in relation to the documents requested by way of undertaking. As Mr. Beraskow did not challenge CIRA’s assertion of solicitor-client privilege, no order will be made in relation to questions 178-186.

Questions concerning the merits of the whistleblowers’ allegations, and how they were or ought to have been handled

[45] Mr. Beraskow argues that these questions are relevant because they will prove or disprove the allegations contained in the Amended Notice of Application. In my view, these questions are not relevant because they are beyond the scope of this application.

[46] Mr. Beraskow is challenging the CIRA’s decision to deny him access to certain documents. This determination will turn on whether the documents relate to Mr. Beraskow’s duties as a director, and whether the request was made for a valid purpose. Simply put, this application is about Mr. Beraskow’s entitlement to documents, not CIRA’s handling of the alleged whistleblowers’ allegations. It seems evident that a director’s entitlement to documents required to fulfill a director’s supervisory role does not require evidence of actual wrongdoing by the corporation. It is sufficient to establish that the request engaged his responsibility to manage the corporation’s affairs, and that it was not made for an improper purpose. I agree with CIRA that allowing Mr. Beraskow to enquire into these matters would expand the scope of this application beyond that which is required, to rule on the questions that are at issue.

[47] The following questions fall into this category, and CIRA’s refusals are upheld: 2, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 50, 58, 59, 60, 62, 63, 64, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 95, 96, 97, 109, 111, 114, 115, 116, 117, 118, 119, 128, 130, 131, 132, 133, 134, 135, 136, 137, 138, 140, 141, 142, 143, 144, 145, 152, 153, 154, 158, 166, 167, 176, and 177.

Questions relating to briefings on financial settlements to CIRA’s Board

[48] While the merits of the alleged whistleblowers’ allegations are beyond the scope of this application, Mr. Black testified that the Board was briefed about the settlements on March 6, 2018 and May 3, 2018. Mr. Beraskow may ask questions about what was presented to the Board on those dates, the content of the Board’s discussions, and the outcome of these meetings. CIRA raised these matters in Mr. Black’s affidavit and questions on these briefings should be answered, even if they are irrelevant to determining Mr. Beraskow’s entitlement to the requested documents.

[49] Mr. Beraskow alleges that he is entitled to question CIRA about the Board’s handling of the whistleblowers’ allegations because Mr. Black testified that the Board fully canvassed this issue. Mr. Black testified that “some” of the records sought related to matters that had already been fully considered by the Board. As mentioned above, Mr. Beraskow requested nine separate category of documents. On the issue of settlements with former employees, Mr. Black’s evidence is that the Board was briefed in camera on March 6, 2018 and May 8, 2018, and that further particulars were overseen by the CRC. Mr. Beraskow is entitled to obtain particulars of paragraph 84(h) of Mr. Black’s affidavit.

[50] The following questions must be answered: 27, 29, 30, 54, 65, 88 and 174.

[51] Question 175 is a proper question, but CIRA responded that there are no minutes from these meetings.

Legal questions about CIRA’s obligations under employment law

[52] A witness is not to be asked to state his opinion on a point of law because such an opinion is irrelevant. [14] The respondent’s objections to the following questions are upheld: 13, 14, 17, 18, 19, 20, 23, 24, 25, 26, 28, 45, 55, 56, 99 and 100.

[53] Question 52 need not be answered because it constitutes argument.

Disposition

[54] For the foregoing reasons, the Court orders that:

1. The applicant’s motion to strike is dismissed.
2. The respondent’s motion to strike is dismissed.
3. The applicant’s motion to compel answers refused during the cross-examination of Ryan Black is allowed in part.
4. The respondent shall answer the following questions as they are referenced in the applicant’s refusals chart: 1, 6, 7, 8, 9, 10, 11, 12, 17, 21, 22, 27, 29, 30, 31, 46, 47, 48, 49, 52, 53, 54, 57, 61, 65, 88, 93/94 (this is the same question), 98, 101, 106, 107, 112, 120, 121, 122, 123, 124, 125, 126, 127, 129, 146, 147, 148, 155, 156, 157, 159, 160, 161, 162, 163, 164, 165, 168, 169, 170, 171, 172, 173, and 174.
5. As the success was evenly divided, there will be no order as to costs.

Alexandre Kaufman

Associate Justice A. Kaufman

DATE: March 1, 2023

Footnotes

[1] R.R.O. 1990, Reg. 194 (the “Rules”).

[2] S.C. 2009 c. 23 (the “CNPA”).

[3] The Rules, r. 38.12.

[4] Allianz Global v Attorney General of Canada, 2016 ONSC 29.

[5] Neighbourhoods of Windfields Limited Partnership v Death, [2007] O.J. No. 3042; 2007 CarswellOnt 5036; 159 A.C.W.S. (3d) 332 (S.C.J.).

[6] Gutierrez v The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069 (S.C.J.).

[7] Allianz Global v Attorney General of Canada, 2016 ONSC 29 at para 16.

[8] Ibid at para 17.

[9] The Rules, r. 25.11.

[10] George v Harris, 2000 CarswellOnt 1714 (S.C.J.) at para 20.

[11] Tyler v Envacon Inc., 2012 ABQB 631 at para 52.

[12] Relevance being the first criterion for admissibility.

[13] Ontario v Rothmans Inc., 2011 ONSC 2504 at paras 142-143.

[14] Peel Condominium Corp. No. 199 v Ontario New Home Warranties Plan, 1988 CarswellOnt 473, [1988] O.J. No. 1686, 12 A.C.W.S. (3d) 154, 30 C.P.C. (2d) 118, 32 O.A.C. 1 at para 21.