COURT OF APPEAL FOR ONTARIO
CITATION: Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2020 ONCA 647
DATE: 20201015
DOCKET: M51700, M51729, M51825, M51842 (C68121, C68122, C68123)
Hourigan, Trotter and Jamal JJ.A.
BETWEEN
DOCKET: C68121
Heliotrope Investment Corporation
Plaintiff
(Respondent)
and
1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach and 1073650 Ontario Inc.
Defendants
(Appellants)
and
1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach and 1073650 Ontario Inc.
Plaintiffs by Counterclaim
(Appellants)
and
Canadian Western Trust Company
(In Trust for RRSP Plan Number #10084752 and Plan #10084190), Heliotrope Investment Corporation, Magenta Capital Corporation and Magenta Mortgage Investment Corporation
Defendants by Counterclaim
(Respondents)
AND BETWEEN
DOCKET: C68122
CANADIAN WESTERN TRUST COMPANY
(In Trust for RRSP Plan Number #10084752 and Plan #10084190)
Plaintiff
(Respondent)
and
1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach And 1073650 Ontario Inc.
Defendants
(Appellants)
and
1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach And 1073650 Ontario Inc.
Plaintiffs by Counterclaim
(Appellants)
and
Canadian Western Trust Company
(In Trust for RRSP Plan Number #10084752 and Plan #10084190), Heliotrope Investment Corporation, Magenta Capital Corporation and Magenta Mortgage Investment Corporation
Defendants by Counterclaim
(Respondents)
AND BETWEEN
DOCKET: C68123
CANADIAN WESTERN TRUST COMPANY
(In Trust for RRSP Plan Number #10084752 and Plan #10084190)
Plaintiff/Defendant by Counterclaim
(Respondent)
and
1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach And 1073650 Ontario Inc.
Defendants/Plaintiffs by Counterclaim
(Appellant)
Bruce Marks, for the appellants
Charles Merovitz, for the respondent
Heard and released orally: October 13, 2020
REASONS FOR DECISION
[1] The respondents move for an order under r. 39.02(2) of the Rules of Civil Procedure R.R.O.1990, Reg. 194, granting them leave to examine Charles Hammond of Templeman LLP, the former lawyer of the appellants, with respect to communications relating to these appeals. This is just one of multiple motions in these appeals.
[2] The request for an examination arises from the motion brought by the appellants for leave to file Supplementary Notices of Appeal. On that motion, the appellants argue that the appeals as currently constituted did not reflect their intentions and the instructions given to their former lawyers.
[3] During the respondents’ cross-examination of the appellants’ affiant, it became clear that the affiant had not produced much of the relevant documents and could offer little detail about the instructions given to Mr. Hammond.
[4] We are satisfied that the motion should be granted. The instructions given to counsel regarding the appeals are at the heart of the issue on the motion for leave to file Supplementary Notices of Appeal. The evidence sought from their former lawyer will therefore be highly relevant. The respondents moved with alacrity to cross-examine the affiant and after the cross-examination to bring this motion. The appellants will suffer no prejudice by reason of a short adjournment.
[5] An order will go granting the respondents leave to examine Charles Hammond on, and to require him to produce relevant documents in relation to: (i) the appellants’ instructions for these appeals, and (ii) communications between Templeman LLP and the appellants’ relevant to the issue. Under r.39.03(2) the appellants will also have the right to examine the witness in accordance with that subrule. The costs of this motion are reserved to the panel hearing the appeal. The balance of the outstanding motions are adjourned sine die.
“C.W. Hourigan J.A.”
“Gary Trotter J.A.”
“M. Jamal J.A.”