Court of Appeal for Ontario

Date: 2025-07-21
Docket: M56068 (COA-25-CV-0134)
Judge: L. Madsen (Motions Judge)

Between:

Canadian Tire Corporation, Limited
Respondent/Responding party

and

Eaton Equipment Ltd., Scott Milburn, a.k.a. Scott Eaton, Servantage Dixie Sales Canada Inc., Carleigh Milburn, Intellectual Inventive Inc., Citrus Grove Mortgageco Ltd, Tammy Diane Robertson, Libero Everett Tassone, Appslack Ltd., Appakiss Ltd. and Appnatty Ltd.
Appellants/Moving parties

Scott Milburn, acting in person and as representative for the appellants/moving parties, Eaton Equipment Ltd., Intellectual Inventive Inc., Citrus Grove Mortgageco Ltd., Appslack Ltd., Appakiss Ltd., and Appnatty Ltd. [1]

No one appearing for the appellants/moving parties, Carleigh Milburn, Tammy Diane Robertson, Libero Everett Tassone, and Shane Robertson [2]

Colin Pendrith and Jessica L. Kuredjian, for the respondent/responding party, Canadian Tire Corporation, Limited.

Heard: 2025-06-27

Endorsement

A. Background

[1] The appellants, individually and through several corporations, carried on a warranty repair program. Servantage Dixie Sales Canada Inc. (“Dixie”) provides services including product repairs and parts distribution. On January 1, 2008, Canadian Tire Corporation (“CTC”), the respondent on appeal, entered into an agreement with Dixie to administer their Product Repair and Service Program (the “Repair Program”). In or about 2009, Dixie entered into an agreement with the appellants to conduct repair work under the Repair Program.

[2] In 2018, Dixie became concerned about irregularities in the appellants’ billings and repair services. CTC commenced an investigation, which revealed a very high percentage of billings under the Repair Program between 2015 and 2018 that were not authentic (99.51%). During the same period CTC had paid Dixie $3,207,977.05 on account of fraudulent repair claims. CTC commenced an action, seeking, among other relief, damages for fraud, fraudulent misrepresentation, misappropriation and conversion, knowing receipt, knowing assistance, and unjust enrichment. On August 19, 2019, Penny J. granted Mareva and Norwich orders against the appellants, Mr. Milburn and Eaton Equipment Ltd. Further interlocutory orders were granted thereafter.

[3] In October 2024, CTC brought a summary judgment motion against the appellants, seeking recovery of the money paid to Eaton and Dixie, as well as punitive damages on the basis of the appellants’ fraudulent conduct. The appellants also brought a motion for summary judgment in relation to their counterclaims against CTC and their crossclaim against Dixie.

[4] On January 7, 2025, Black J. granted summary judgment in favour of CTC, against the appellants, jointly and severally. He determined that the appellants were engaged in a fraudulent scheme perpetrated against CTC, involving false invoices for repairs of items purchased at CTC stores. The appellants were ordered to pay damages in the amount of $3,325,238.09, and costs in the amount of $1,200,000. In addition, the appellant Mr. Milburn was ordered to pay punitive damages in the amount of $50,000. The appellants’ motion for summary judgment was dismissed.

[5] On appeal, the appellants seek to set aside the order of Black J., and effectively seek summary judgment in their own favour. The Notice of Appeal sets out many alleged errors, including in Black J.’s findings on reliance and causation, and errors under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.. The appellants also allege errors in Black J.’s determination of the entitlement to and quantification of costs.

[6] The appellants allege that CTC was indemnified by their insurer(s) for any losses CTC may have sustained and state that they have been unable to obtain documentary confirmation of same. They say that throughout the litigation, CTC objected to every insurance-related question and obstructed the appellants’ efforts to obtain disclosure about insurance claims made and/or received. CTC acknowledges that it filed an insurance claim but states, through counsel, that no payment was received. The appellants complain that CTC has never produced documents in relation to that insurance claim which it believes would confirm that CTC was indemnified. The appellants submit that if CTC was indemnified from any loss, the summary judgment outcome against them cannot stand.

[7] Following the release of the summary judgment decision which determined the case on a final basis, it appears that the appellants requested to have a motion scheduled in the Superior Court to seek further disclosure from CTC. A post-motion conference proceeded before Black J. on February 12, 2025. It is unclear on this record whether motion materials had been filed before Black J. at that time. In any event, Black J. declined to schedule such motion, stating that, other than settling the form of judgment, he had “no further or ongoing role in this matter.” That being the case, he declined to schedule the motion, stating:

During the argument of the summary judgment motion before me, counsel for CTC confirmed that an insurance claim had been made by CTC but that the insurer denied coverage. I saw, and see, no reason to doubt the word of an officer of the court in that regard, and see no basis for the relief the Eaton defendants seek relative to the insurance issue.

As such I decline to grant any of the relief that the Eaton defendants seek at this stage.

B. The Motion Before This Court

[8] The appellants now bring a motion before this court under r. 61.16(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking production from non-parties (insurers) under a “Norwich-type” order. The notice of motion spells out extensive disclosure sought both from CTC and from several named and unnamed insurers, who have not been served with any motion materials and are not parties to the motion.

[9] The appellants assert that the disclosure sought is necessary to ensure that the panel hearing the appeal has a complete evidentiary record, “including information that was previously concealed and only partially revealed after the summary judgment motion.” They argue that this court may grant such procedural relief ancillary to the appeal. While the appellants acknowledge that granting a Norwich order at this stage of a proceeding would be exceptional, they cite GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619, paras. 85, 86, for the proposition that the remedy is sufficiently “flexible” that this court may grant such relief under its general supervisory authority.

[10] In response, CTC makes several arguments: that the February 12, 2025 order of Black J. was not appealed and the appellants are out of time for doing so; that it is inappropriate to make a Norwich order as part of an appeal; that there is no factual basis for the motion given the confirmation by counsel that no insurance proceeds were received by CTC; and finally, that even if CTC had obtained recovery through their insurance policy(ies), this would be irrelevant because proceeds of an insurance claim are not deductible from a damages award in a case such as this: Gemeinhardt v. Babic, 2016 ONSC 4707, para. 609.

C. A Norwich Order is Inappropriate at This Stage of the Proceeding

[11] A Norwich order is an equitable remedy, available on a discretionary basis to assist with pre-trial discovery in certain circumstances: Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.).

[12] To obtain a Norwich order, the applicant must establish that: 1) a bona fide or reasonable claim exists; 2) the respondent is involved in or has information related to the alleged wrongdoing; 3) the respondent is the only practical source of the information; 4) the applicant is willing to indemnify the respondent for costs; and 5) the interests of justice favour disclosure: Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38, para. 18.

[13] Norwich orders are a pre-trial remedy: Rogers Communications Inc., at para. 18; Amphenpol Canada Corp v. Sundaram, 2019 ONCA 932, para. 23. In Seismotech IP Holdings Inc. v. Ecobee Technologies ULC, 2024 FCA 205, para. 5, the Federal Court of Appeal described the remedy as a “type of pre-trial discovery which, inter alia, allows a rights holder to identify wrongdoers.” Similarly, in Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, at fn. 3, this court observed that a Norwich order “authorizes pre-action discovery”. This court’s jurisprudence does not suggest that a Norwich order is an available order on a motion within the appeal process.

[14] The relief sought is simply not appropriate at this stage of the proceeding. It is unclear to me the basis on which production of insurance policies and documents related to any insurance claim would be relevant to this action, but the time for making that request was during the trial process, not on appeal. The task of this court is to determine whether the motion judge erred in his application of the law, or made palpable and overriding errors in his determination of the summary judgment motion. The appeal is not, as the appellants would effectively urge, a continuation of that motion.

[15] I would add that, even if I had been persuaded that a Norwich order was available on a motion pending appeal, it would not be appropriate in this case. It is trite law that a party seeking an equitable remedy must come to the court with clean hands: see City of Toronto v. Polai, [1970] 1 O.R. 483 (C.A.), aff’d 1972 22 (SCC), [1973] S.C.R. 38. As noted above, a Norwich order is a remedy that may assist an applicant in the face of apparent wrongdoing. The pre-conditions of a Norwich order include proof of the need for the order “to enable action to be brought against the ultimate wrongdoer”: Mitsui & Co. Ltd. v. Nexen Petroleum UK Ltd., [2005] 3 All E.R. 511 [2005] E.W.H.C. 625 (Ch. D.) at para. 21, cited by GEA Group, at para. 79. The appellants have been found to have created a “fraudulent scheme.” While that decision is under appeal, Black J.’s findings of fact will be difficult to disturb given the standard of review.

[16] In light of my determination that a Norwich order is not appropriate at this stage of the proceeding, it is not necessary to address the other arguments raised by the parties.

D. Conclusion

[17] This motion is dismissed.

[18] Costs are set at $2,500 payable by the appellants within 14 days.

“L. Madsen J.A.”

[1] Mr. Milburn obtained leave to represent the corporate appellants by the February 24, 2025 order of George J.A.

[2] The remaining non-corporation appellants are self-represented and did not appear at the hearing of this motion. Mr. Milburn submitted at the outset of the hearing that those moving parties who are not represented by him nonetheless adopt his submissions on the motion. I noted this submission, but without the self-represented parties in attendance to confirm, have not accepted it.