Court of Appeal for Ontario

DATE: 20240610 DOCKET: COA-24-CV-0068 Huscroft, Coroza and Monahan JJ.A.

BETWEEN

Rayna Rachalle Bayliss, Emery John Bayliss, by his Litigation Guardian Rayna Rachalle Bayliss, Alisha Sherine Milhim and Gabryella Milhim-Hill, by her Litigation Guardian Alisha Sherine Milhim

Moving Parties (Respondents)

and

Ryan Edward Dalton Burnham in his capacity as Estate Trustee for the Estate of Kenneth Ryan Hill

Responding Party (Respondent)

Counsel: Iris Fischer and Leah Kelley, for the appellant Grand River Enterprises Six Nations Ltd. Alexander Turner, for the respondents Rayna Rachelle Bayliss personally and in her capacity as litigation guardian for Emery John Bayliss, and Alisha Sherine Milhim personally and in her capacity as litigation guardian for Gabryella Milhim-Hill Zara Wong, for the respondent Maegan Martin Arieh Bloom and Jessica Karjanmaa, for the respondent Brittany Beaver personally and in her capacity as litigation guardian for Brody Hill Beaver Justin Nasseri and Gordan Vance, for the respondent Catherine Anne Haggett personally and in her capacity as litigation guardian for Jasmine Alura Hill and Jordan Austin Hill Peter Askew, for the respondent Ryan Edward Dalton Burnham in his capacity as named Estate Trustee [1] Anne Posno, for the non-party John Rowinski as Estate Trustee during Litigation of the Estate of Kenneth Ryan Hill [2] Anuran Sivakumaren for the non-party Katherine Elaine Andersen personally and in her capacity as litigation guardian for Jacob Matthew Andersen [3]

Heard: May 31, 2024

On appeal from the order of Justice Cory A. Gilmore of the Superior Court of Justice dated December 21, 2023.

Reasons for Decision

[1] The appellant, Grand River Enterprises Six Nations Ltd. (“GRE”) appeals from an order for production of documents by a non-party pursuant to Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in estates litigation. At the conclusion of oral submissions, we dismissed the appeal with reasons to follow. These are our reasons.

[2] Kenneth Ryan Hill (“the deceased”) was a highly successful businessman who co-founded GRE, one of the largest exporters of tobacco products in Canada. It is an Indigenous-owned company employing over 500 people, most of whom come from the Six Nations of the Grand River reserve. Mr. Hill died on January 18, 2021.

[3] A group of the deceased’s adult children, representatives of his minor children, and his former partners (the “Moving Parties”) brought the motion for production. Although GRE is a non-party to the litigation, in the Moving Parties’ submission, production of its financial records was necessary because the GRE shares were the estate’s largest asset and disclosure was required to enable accurate dependency claims. Further, the complexity of the estate’s assets and their value would assist in determining the validity of the deceased’s last will, a question that is scheduled to go to trial in September 2024.

[4] GRE opposed the motion for production, arguing that disclosure of its financial information would be detrimental and prejudicial to GRE and that this information has never been publicly disclosed.

[5] The motions judge, who was case managing the matter, granted the order requested by the Moving Parties. She ordered GRE to produce financial statements and any other documents reasonably required by valuators to prepare a valuation of the deceased’s 12.5% interest in GRE. Working with the parties, she also established a Confidentiality Protocol to ensure that the documents produced would remain confidential.

[6] Counsel for the appellant raised several arguments in her written submissions and during oral argument. It is unnecessary to outline each submission in detail. Suffice to say, the crux of GRE’s appeal is that the motions judge misapplied the test under r. 30.10 at both the relevance and fairness stages. [4]

[7] The motions judge’s discretionary decision is entitled to deference, and we see no basis to interfere with it. The motions judge found that the documents sought were relevant to a material issue in the action and that it would be unfair to require the Moving Parties to proceed to trial without them. In reaching this decision, the motions judge considered the factors relevant to determining a production motion set out in Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39, at pp. 48-49.

[8] The motions judge began her analysis by recognizing that the standard for relevance of documents is elevated when they are in the hands of a non-party. At the first stage of her analysis, the motions judge concluded that “[t]he GRE shares are an asset of the Estate and must be valued like any other asset” as the value of the shares would go to “the very heart” of the triable question of whether the deceased’s last will makes testamentary sense.

[9] At the second stage of her analysis, the motions judge determined that disclosure was required for fairness to the Moving Parties. She reasoned that: the trial would inevitably be adjourned if the documents were produced at trial; the information sought could be obtained from no other source; and GRE had a connection to the litigation as the deceased had been referred to as the “face” of the company.

[10] In sum, the motions judge found that the Moving Parties had met their burden under r. 30.10. Respectfully, GRE’s submissions on this appeal are attempts to reargue the issues that were comprehensively dealt with by the motions judge in her reasons. Concerns about business interests, privacy, and safety could be, and in our view were, addressed through the Confidentiality Protocol.

[11] GRE also argues that the terms of the motions judge’s order are unfair and overbroad. We disagree. We reject the submission that the motions judge ignored the potential for violence toward GRE’s personal stakeholders. The motions judge referenced the evidence of the President of GRE, Steve Williams, who deposed that disclosure would be detrimental to GRE and that employees had, in the past, faced violence arising from opposition to the company’s practices of regulatory compliance and paying excise duties. The motions judge carefully considered the evidence and GRE’s submissions on this point, finding GRE’s concerns in this area to be overstated. In any event, the motions judge carefully tailored her production order by ordering the parties to comply with the Confidentiality Protocol whereby access to the documents is restricted to the Moving Parties and their counsel, Katherine Andersen and Jacob Matthew Andersen and their counsel, the estate trustees during litigation, Ryan Burnham and his counsel of record, and a valuator. The making of copies of the documents is not permitted, and it is open to GRE to seek a sealing order before any of the GRE disclosure is made public in a court file. We note that the motions judge held a further contested hearing before finalizing the terms of the Confidentiality Protocol and the parties were undoubtedly permitted to make submissions at the hearing. There is nothing unfair about the order and the Protocol.

[12] We also disagree with the appellant’s submission that the motions judge’s order is overbroad because it permits a valuator to determine which documents will be required to complete the valuation. On a r. 30.10 motion the motions judge has discretion to tailor the order as necessary. This is especially so given the motions judge was also case managing this litigation and was in a superior position than this court to determine what was required to ensure fairness to the parties: see Stavro, at p. 47. We see no error in her decision to allow a valuator to determine which specific additional documents may be necessary to complete their task. The motions judge specifically ordered that the valuator must act “reasonably” and we do not interpret her order as permitting a “fishing expedition”. If there are issues with the reasonableness of the valuator’s requests, we are confident that the parties will return to the motions judge in her capacity as the case management judge to make submissions as to whether her order is being complied with.

[13] For these reasons, the appeal is dismissed. The respondents are entitled to their costs on the appeal in the agreed amount of $50,000, all-inclusive.

“Grant Huscroft J.A.”

“S. Coroza J.A.”

“P.J. Monahan J.A.”

Footnotes

[1] Peter Askew appeared but made no written or oral submissions.

[2] Anne Posno appeared but made no written or oral submissions.

[3] Anuran Sivakumaren appeared but made no written or oral submissions.

[4] The appellant also argues that the motions judge erred by: conflating the rights of the Moving Parties with rights that would flow to GRE shareholders; equating the position of GRE on the motion with shareholder oppression; and relying on r. 75.06 to allow a broader ruling on the motion. We see no merit to any of these submissions.