COURT FILE NO.: 06-CV-311330CP

DATE: November 21, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

2038724 ONTARIO LTD. and 2036250 ONTARIO INC.

Plaintiffs

– and –

QUIZNO’S CANADA RESTAURANT CORPORATION, QUIZ-CAN LLC, THE QUIZNO’S MASTER LLC, CANADA FOOD DISTRIBUTION COMPANY, GORDON FOOD SERVICE, INC., and GFS CANADA COMPANY INC.

Defendants

Jean-Marc Leclerc and Shane Murphy for 2038724 Ontario Ltd. and 2036250 Ontario Inc.

Geoffrey B. Shaw and Jason Beitchman for Quizno’s Canada Restaurant Corporation, Quiz-Can LLC, The Quizno’s Master LLC and Canada Food Distribution Company

Katherine L. Kay and Mark Walli for Gordon Food Services, Inc. and GFS Canada Company Inc.

Proceeding under the Class Proceedings Act, 1992

HEARD: November 6, 7, and 9, 2012

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] On their respective examinations for discovery, the parties to this action refused to answer in whole or in part a profuse number of questions. They now bring reciprocal refusals motions.

[2] The Plaintiffs are 2038724 Ontario Ltd., whose owner is Edward May, and 2036250 Ontario Inc., whose owner is Douglas Johnson. The Plaintiffs are former franchisees of a fast food restaurant franchise known as Quiznos. They are the Representative Plaintiffs in a class action on behalf of approximately 450 past and present Quiznos franchisees. The Plaintiffs allege a price maintenance conspiracy, and breach of contract. The essence of their action is that the Quiznos franchisees have been charged exorbitant prices for food and other supplies that they must purchase for their restaurants.

[3] The Defendants Quizno’s Canada Restaurant Corporation, Quiz-Can LLC, The Quizno’s Master LLC, and Canada Food Distribution Company (collectively “Quiznos”) are the franchisor. Matthew Sommers is a vice-president of Quiznos, and he was its deponent for the examinations for discovery.

[4] The Defendants, Gordon Food Service, Inc. and GFS Canada Company Inc. (collectively “GFS”) are food suppliers to restaurants and others in the restaurant and catering industry. James Greenwood is a vice-president of GFS, and he was its deponent for the examinations for discovery.

[5] The Plaintiffs bring a motion to require Messrs. Sommers and Greenwood to answer questions that the Defendants refused to answer on the examinations for discovery. The Plaintiffs also seek an order requiring GFS to deliver a further and better affidavit of documents. Quiznos and GFS bring cross-motions to require Messrs. Johnson and May to answer questions that the Plaintiffs refused to answer on their examinations for discovery.

[6] In their refusals motions, the parties also seek answers or more fulsome answers to undertakings given on the respective examinations for discovery. For the purposes of this motion, I regard these allegedly inadequate answers as refusals.

[7] Quiznos also brings a cross-motion to have an examination of discovery of a class member, Kileel Developments Ltd., whose principal is John Kileel. Mr. Kileel apparently played a prominent role in the events and acrimony between Quiznos and its Canadian franchisees, but this motion, which was supported by GFS, has been adjourned sine die.

[8] My determination of the refusals motion is set out in the charts found in Schedule “A” to these Reasons for Decision. As will be seen, the charts indicate what questions should be answered or what refusals were justified. My reasons for the various rulings and also for dismissing the Plaintiffs’ motion for a further and better affidavit from GFS are set out below. As appears, very few questions need be answered.

[9] In order to explain my rulings, first, I will describe the factual and procedural background. Second, I will describe the overarching or broad-spectrum position of the parties about the propriety of their questions and refusals. Third, I will discuss the principles that govern a refusals motion in a class action. Fourth, in the Analysis section of these Reasons, I will explain the factors or criteria that governed my question-by-question rulings on the propriety of the questions and the refusals. The Analysis section will also include a discussion of several specific problems including the propriety of questions about aggregate damages in the case at bar.

B. FACTUAL AND PROCEDURAL BACKGROUND

[10] Quiznos operates a restaurant franchise in Canada and the United States. The franchisees sign a standard form franchise agreement. The Quiznos system requires the franchisees to offer common menu items. There is a common operating manual and common advertising. The franchisees may not sell at prices that exceed prices mandated by Quiznos. Franchisees pay royalties of 7 per cent on gross sales.

[11] Under the standard form franchise agreements, Quiznos appoints a designated supplier for the franchisees, and the franchisees must buy the vast majority of their supplies from the designated supplier.

[12] In 2003, the Quiznos Defendants appointed affiliate company Canada Food Distribution (CFD) to negotiate contracts with suppliers and to retain a food distributor.

[13] In February 2003, Quiznos and GFS signed an agreement under which GFS became the designated supplier. GFS was designated to sell and distribute to the franchisees a full line of products including meats, produce, frozen foods, dairy goods, paper and cleaning chemicals. Under the agreement, CFD purchases or arranges for the purchase of products for GFS and CFD charges GFS a sourcing fee. This sourcing fee is passed on to the franchisees by GFS when it sells goods to them. On October 1, 2006, GFS signed a new distribution agreement with CFD.

[14] GFS supplies products from its own inventory and from purchases sourced by CFD to which CFD adds a mark-up or sourcing fees. The mark-ups and sourcing fees are included by GFS in the price of the products to the franchisees.

[15] GFS adds its own mark-up and invoices the franchisees directly with the maximum price determined by CFD.

[16] GFS has organized its food distribution business through the five companies, each of which provides distribution services to a particular territory in Canada; namely, BC, the Prairies, Ontario, Quebec, and the Maritimes. The GFS companies' larger distribution centres, such as Milton, Ontario, have approximately 15,000 different items on offer at any given time. A list of products and the prices that GFS charges franchisees in each region are set out in the monthly Order Guidelines. The order guides vary from region to region and month to month.

[17] The monthly Order Guidelines are reviewed and approved by CFD. It is the CFD mark-ups and sourcing fees that are at issue in this litigation. The franchisees allege that the mark-ups and sourcing fees are excessive.

[18] Around 2004, the franchisees began to believe that they were being overcharged for supplies. They formed an association known as "Denver Subs," and some of the franchisees sought information and action by Quiznos and by GFS to redress their concerns about the cost of supplies. The Plaintiffs allege that Quiznos thwarted the franchisees' attempts to redress overcharging and rather Quiznos tried to intimidate them and the franchisee’s consultants with aggressive and retaliatory conduct.

[19] In May 2006, the Plaintiffs commenced a proposed class action under the Class Proceedings Act, 1992 on behalf of the franchisees. The franchisees assert three causes of action: (1) breach of the price maintenance provisions of the Competition Act, R.S.C. 1985, c. C-34; (2) conspiracy among the Defendants to fix prices; and (3) breach of contract including a breach of the duty of good faith. The franchisees claim damages of $50 million and punitive damages of $25 million.

[20] Price maintenance under s. 61(1) of the Competition Act (which was repealed in 2009) occurs when a supplier of products purports to set a fixed minimum price at which another supplier in a vertical distribution chain may sell a product. Price maintenance has three constituent elements: (1) a person engages in the business of producing or supplying a product; (2) the person, directly or indirectly, attempts to influence upward or discourage the reduction of the price at which another person supplies or offers to supply a product within Canada; (3) the person exercises influence on the prices by agreement, threat, promise or any like means. See 2038724 Ontario Ltd v. Quizno's Canada Restaurant Corp. 2009 CanLII 23374 (ON SCDC), [2009] O.J. No. 1874 (Div. Ct.), affd. 2010 ONCA 466 at paras. 53-57.

[21] The Plaintiffs’ claim for price maintenance is only against Quiznos. The Plaintiffs allege that Quiznos knowingly attempted to influence upward, or to discourage the reduction, of the prices for supplies charged by GFS to the franchisees by using agreements, promises, threats, or other like means, to ensure that GFS’s pricing remains at levels that were commercially unreasonable.

[22] The Plaintiffs allege the mark-ups and sourcing fees constitute a breach of the price maintenance prohibition contained in s. 61 of the Competition Act, a breach of their contract with the franchisor; and a breach of a duty of fair dealing under franchise legislation in Ontario (Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3) and Alberta (Franchises Act, R.S.A. 2000, c. F-23).

[23] The Plaintiffs allege that Quiznos breached its franchise agreements and its common law and statutory duties of good faith and fair dealing by failing to ensure that the franchisees were offered products at commercially reasonable prices. The Plaintiffs assert that Quiznos has breached its contractual obligations by: (a) failing to assist franchisees in obtaining and maintaining commercially reasonable prices for supplies; (b) failing to ensure that the designated suppliers and distributors are charging fair and commercially reasonable prices to the class members; (c) failing to remove the exclusive or sole designation of suppliers and distributors that charge excessive prices for supplies; and (d) using contractual powers and the promise of exclusivity to maximize the amount of remittances paid, all without regard to the interests of, and to the prejudice of the franchisees.

[24] The Plaintiffs also have a conspiracy claim. They allege that Quiznos and GFS conspired to maintain and fix prices and knowingly inflict harm upon the franchisees. The only cause of action against GFS is the tort of conspiracy. Although only Quiznos can be in breach of s. 61 of the Competition Act, the Plaintiffs allege that GFS employed unlawful means to pursue an otherwise lawful object in that GFS aided and abetted and counselled Quiznos in maintaining prices in contravention of s. 61 of the Act, contrary to s. 21 of the Criminal Code.

[25] The damages claimed against Quiznos and GFS is the amount of the overcharging through the mark-ups and sourcing fees added to the product prices together with the investigation costs under s. 36 of the Competition Act.

[26] The Plaintiffs sought certification of their action as a class action, and it took about two years for the Plaintiffs’ action to progress to a certification hearing. In March 2008, I dismissed the Plaintiffs’ motion for certification of their action as a class action. However, my decision was reversed by the Divisional Court in 2009. See 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp. 2008 CanLII 8421 (ON SC), [2008] O.J. No. 833 (S.C.J.), reversed 2009 CanLII 23374 (ON SCDC), [2009] O.J. No. 1874 (Div. Ct.) (Justices Hennessy and Karakatsanis concurring, Justice Swinton, dissenting), affd. 2010 ONCA 466 (Justices Armstrong, Blair and Juriansz).

[27] The Plaintiffs successfully appealed the dismissal of their certification motion, and they sought a certification order from the Divisional Court. The focus of their appeal was on showing that there was a top-down approach that would justify a class action. During the argument of their appeal, the Plaintiffs advised the Divisional Court that although there are between 163 and 256 products specified for use in the preparation and sale of menu items, they intended to focus on 10 products that comprise 70% of the value of products purchased.

[28] In refusing certification, I had erred in concluding that the common issues criterion had not been satisfied. I had erred further by concluding that even if it were possible to isolate some discrete elements of the three causes of action as a common issue, those common issues would be substantially overmatched by the individual issues of the franchisees calculation of damages with the result that a class action would not be the preferable procedure.

[29] In particular, I erred in not analyzing the criteria for certification from the perspective of the systemic conduct of the Defendants in costing the products that all the franchisees were contractually obliged to purchase. I erred by employing a “bottom-up” approach focusing on the circumstances of the individual franchisees rather than a “top-down” approach focussing on the systemic conduct of the Defendants.

[30] I also erred in concluding that there was no basis in fact for a common issue about aggregate damages. The error was my analysis that there was no basis in fact for the theory posited by the Plaintiffs’ expert that damages could be calculated in the aggregate.

[31] In granting certification, the Divisional Court noted at paragraphs 64-65 and 66 of its judgment that the Plaintiffs will focus their price maintenance claim on the markups and sourcing fees (the “top-down” approach). The Divisional Court held that the focus of s. 61 is on the conduct of the Defendants, not upon the efficiency of the franchisees as purchasers. The Court stated with my emphasis added:

64. The focus of s. 61 is on the conduct of the respondents, not upon the efficiency of the appellants as purchasers. The complaint of the franchisees relates to the mark-up and sourcing fees as opposed to the base price of the products of the suppliers. By focusing on individual product prices that the appellants would be able to obtain in an alternate buying scenario, rather than the conduct of the respondents and the franchisor mark-up and sourcing fees component of the product prices in the existing franchising system, the motions judge relied upon a 'bottom up' model of proof.

65. A 'top down' approach was preferred by the court in Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., [2000] O.J. No. 4594 (S.C.) at paras. 35-39, 43-45 and 57. In reviewing different approaches for assessing damages in business-to-business price-fixing conspiracy, Cumming J. preferred an approach based upon the difference between the conspiracy prices and the prices that would have been charged for similar products absent (or "but-for") the alleged conspiracy. Such an inquiry was an objective one that did not depend on the lost profit or the expense items of individual class members. He noted that in some instances of sufficient "uniformity" amongst the class, collective class recovery may be calculated from the defendant's business records or computer systems. Cumming J. preferred this 'top down' approach to the individualized approach to damages based upon the theory that the loss on the part of purchasers is not the increase in price but rather the increase in cost to them which they are unable to pass on. Similarly, in 1176560 Ontario Limited v. The Great Atlantic & Pacific Co. of Canada Limited, [2003] O.J. No. 5703 (Master S.C.J.) at paras. 27 and 32 the Court found that franchisees' profit was not relevant to a claim by franchisees against their franchisor for withheld supplier rebates and allowances.

66. We agree with the appellants' submission that a 'top down' approach focusing on the arrangement between the franchisor, the distributor and the suppliers, and the nature and amounts of the sourcing fees and mark-ups, may allow the court to determine whether the mark-ups and sourcing fees resulted in maintaining prices contrary to s. 61(1). This may ultimately allow the court to determine whether s. 61(1) was breached without the need to establish what each individual franchisee, acting alone, would pay for each product from an alternate supplier.

[32] Keeping in mind the focus of a top-down approach, the Divisional Court identified the following issues as common: (a) the relationship between the franchisor and franchisees; (b) the legal duties required under the franchise agreement; (c) the relationship between the Defendants; (d) the distribution and pricing scheme; (e) the nature and extent of the mark-up and sourcing fees to CFD; (f) the services provided by the Defendants in supplying products; (g) the systemic basis for the mark-ups and sourcing fees to the price of the products, and whether they were commercially reasonable; (h) industry standards and practices relating to the supply of products; and (i) investigation of any threats by the franchisors relating to price maintenance.

[33] For the purposes of this refusals motion, it must be emphasized that what the Divisional Court viewed as certifiable was the systemic basis for the added mark-ups and sourcing fees to the price of the products; see its judgment at paragraphs 48-50 and 141. The Divisional Court noted that, like the alleged violation of the Competition Act, the alleged conspiracy could also be evidenced by a pricing system imposed top-down by the Defendants. The lynchpin to commonality was a top-down approach and the systemic nature of the Defendants’ conduct.

[34] The Divisional Court, whose judgment was affirmed by the Court of Appeal, did not envision a non-systemic analysis of the pricing and commercial reasonableness of each product supplied by GFS, and it rejected my erroneous focus on individual product prices that the franchises would be able to obtain in an alternate buying scenario.

[35] In any event, the Divisional Court conditionally certified the action, and its decision was affirmed by the Court of Appeal. The Certification Order is dated November 23, 2009, and it defines the class as:

All persons, including firms and corporations, carrying on business in Canada under a Quiznos Franchise Agreement at any time between May 12, 2006 and November 23, 2009.”

[36] However, the Amended Amended Amended Statement of Claim suggests a class period commencing “January 2002 and continuing to the present and for so long as such conduct continues.” I will return to the matter of the temporal aspects of the certification order in the discussion below about the propriety of the questions and the justification for the refusals.

[37] The following questions were certified as common issues for a common issues trial:

1. Have the Quizno’s Defendants, or any of them, engaged in conduct contrary to Section 61(1) of the Competition Act, R.S.C. 1985, c. 19 (2nd Supp.)?

2. Have the defendants, or any of them, engaged in conduct that amounts to civil conspiracy?

3. Have the Quizno’s Defendants, or any of them, engaged in conduct which constitutes a breach of their contractual obligations to the Class Members?

4. Have the Class Members suffered loss or damage as a result of any of the conduct referred to in issues (a), (b), (c) or (d)? Is so, what is the appropriate measure or amount of such loss or damages?

5. Should the Court award an aggregate assessment of monetary relief on behalf of some or all Class Members? If so, what is the amount of the aggregate assessment and how should the Class Members share in the award?

6. Should the defendants pay punitive, exemplary or aggravated damages to the Class Members? Should such damages be assessed in the aggregate? If so, what is the amount of such damages including pre-and-post judgment interest thereon?

7. Are the Class members entitled to recover from the Quizno’s Defendants the full costs of their investigations and the full costs of this proceeding, including contingent legal fees on a complete indemnity basis, under section 36(1) of the Competition Act?

[38] After certification, the pleadings were completed. For the present purposes of this refusals motion, it sufficient to note that the Defendants deny any wrongdoing and any damages and that, in particular, GFS pleads that after the litigation was commenced, it made a "with prejudice" offer to the franchisees to supply products for which the franchisees had obtained Quiznos' approval or for which approval was not needed. In their Reply to the GFS Statement of Defence, the Plaintiffs have described this proposal as disingenuous.

[39] After the certification of the action, on January 13, 2010, the parties attended a “meet and confer,” at which they began discussions about a discovery and production plan, including strategies for conducting searches to retrieve relevant electronically stored information.

[40] On March 29, 2010 and May 10, 2010, at a case conference, I directed the parties, among other things, to develop a work plan for the disclosure and production of documents and a protocol for the electronic production of documents. The parties eventually agreed to a protocol that included an agreement that electronic copies of documents would be provided in TIFF format. The Plaintiffs now wish to receive documents in Excel format, although this was not part of the parties’ discovery plan agreement.

[41] In July, 2010, the Plaintiffs provided a draft list of names and key words for the purpose of performing searches of Quiznos’ electronic records and identifying documents for further productions. On September 7, 2010, Quiznos proposed a revised custodian and key word list that the Plaintiffs accepted.

[42] The parties agreed to have both oral and written examination for discovery. For the written discovery, they exchanged lists of written interrogatories.

[43] Pursuant to the Discovery Plan, the Plaintiffs produced 8,844 documents. Approximately 3,613 of the Plaintiffs’ productions are invoices for the purchase of product, over 1,500 of which are for the purchase of produce or Coca-Cola. A further 1,227 are photocopies of cheques used to pay vendors.

[44] In total, Quiznos delivered a total of 12,540 documents in five separate tranches on March 8, May 5, June 21, December 1, 2010, and March 30, 3011. In response to undertakings and interrogatories, Quiznos produced an additional 1,836 documents.

[45] The documents produced by Quiznos include: (a) detailed pricing sheets showing the price and components costs, including the GFS mark-up and CFD sourcing fee, for every product sold to franchisees in the Canadian franchise system from every distribution centre in every region for every month from 2003 to 2009; (b) Tables showing rebates paid to Quiznos by manufacturers for 2002 and in 2003 until the transition to CFD was completed; (c) Order Guides; (d) over 1,000 product specification sheets; (e) benchmarking studies conducted by Quiznos for product supplied to the Canadian system; (f) financial statements for Canada Food Distribution Company; and (g) various and sundry reports, analyses, charts, spreadsheets, memoranda, and other documents demonstrating the day-to-day evaluation of food costs, franchisee profitability, sales and gross and net profits.

[46] It is worth noting that Quiznos has produced detailed pricing sheets showing the price and components costs, including the GFS mark-up and CFD sourcing fee, for every product sold to franchisees in the Canadian franchise system from every distribution centre in every region for every month from 2003 to 2009.

[47] GFS had produced 5,352 documents to date, and it is worth emphasizing that the majority of these documents consist of pricing sheets and order guides sent by GFS to the franchisees. These documents outline the Quiznos products offered for sale and distribution by GFS and the prices for those products.

[48] Mr. Sommers for Quiznos was examined for discovery on July 25, 26 and 27, 2011.

[49] Mr. Johnson for the Plaintiffs was examined for discovery on September 13, 14, 15, and 16, 2011 and also on September 11, 2012.

[50] Mr. May for the Plaintiffs was examined for discovery on September 19, 2011.

[51] Mr. Greenwood for GFS was examined for discovery on October 17 and 18, 2011.

[52] The parties now respectively bring and defend refusals motions. They all have a long list of refused questions many of compound-complex-multidimensional questions.

C. THE PARTIES BROAD-SPECTRUM POSITION ON THE PROPRIETY OF ITS QUESTIONS AND ITS REFUSALS

1. The Plaintiffs’ Broad-Spectrum Position on the Propriety of its Questions and its Refusals

[53] As a moving party, relying on the reasons of the Divisional Court in certifying this action, the Plaintiffs submit that all their questions are relevant to the issues that the Court identified as common. In particular, the Plaintiffs submit that all their questions are relevant to the nature and extent of the mark-up and sourcing fees, which is a major common issue.

[54] As a moving party, the Plaintiffs request that GFS produce its records of actual sales of products to franchisees, which information the Plaintiffs say is relevant to the common issue of whether the franchisees have suffered loss or damage and the measure of the loss. The Plaintiffs submit that information about what franchisees spend purchasing supplies for their Quiznos restaurants is critical for assessing the franchisees’ losses.

[55] As a responding party, the Plaintiffs say that they have made ample disclosure and they reject that the Defendants’ assertion that the case they are to meet has not been disclosed. They say that many of the Defendants’ questions are irrelevant, or vague, overreaching or disproportionate. The Plaintiffs submit that the Defendants’ questioning is inconsistent with with the top-down theory of the class action envisioned by the Divisional Court and the Court of Appeal.

2. Quiznos’ Broad-Spectrum Position on the Propriety of its Questions and its Refusals

[56] As a moving party, Quiznos’ position is that the representative Plaintiffs were ill-informed or unknowledgable about the franchisees’ case. It submits that Mr. Johnson and Mr. May had a paucity of information about the inflated prices and comparable prices that allegedly would establish that the franchisees were charged inflated costs for supplies. Quiznos submits that the Plaintiffs have failed to meet their discovery obligations and frustrated Quiznos’ right to know the case it has to meet.

[57] As a responding party, Quiznos’ position is that its refusals were proper for several reasons. First, it submits that the questions were of limited or no relevance to the common issues. In this regard, it submits that the common denominator of the common issues is whether the franchisees were paying inflated prices in comparison to what was otherwise available in the marketplace, and, therefore, questions about Quiznos’ profits or profit margins or about its competitors’ comparable profit margins are not relevant to the common issues.

[58] Second, Quiznos submits that the volume of documents requested is grossly disproportionate to the potential relevance of the documents to the issues in dispute. It says that it has already produced a substantial number of responsive documents and that the efforts to determine whether there are more relevant documents is speculative and disproportionate and likely to yield only a minor probative return.

[59] Third, Quiznos submits that it would cost not less than $2 million and months of work to even determine whether documents responsive to the refused questions exist. It submits that answering some of the questions would require Quiznos to rebuild data bases from back-up tapes. It complains that the Plaintiffs’ inquiries were not part of the original discovery plan inquiries.

[60] Fourth, Quiznos objects to the Plaintiffs’ 22 requests for documents that have already been provided in TIFF format being provided in Excel format. The documents were originally provided in accordance with the Document Exchange Protocol, which had been agreed to by the parties, and Quiznos says that it should not be required to provide the documents again in a different format.

3. GFS’s Broad-Spectrum Position on the Propriety of its Questions and its Refusals

[61] As a moving party, GFS adopts the position and arguments of Quiznos and makes similar arguments of its own asserting that its questions were clearly relevant to the common issues and to the Plaintiffs’ aggregate damages claim. GFS submits that its questions and Quiznos’ questions should have been answered.

[62] As a responding party, GFS’s position is that it properly refused to answer about 20 questions that it submits were irrelevant to the certified common issues or if relevant would impose a burden on GFS that was grossly disproportionate to the marginal relevance, if any, of the information sought.

[63] GFS submits that it satisfied its disclosure obligations and that there is no basis for the Plaintiffs’ request that GFS produce another affidavit of documents.

[64] And, GFS submits that the request for all records concerning the purchases of all franchisees (which were generally made on a weekly basis) over a six-year period would impose a substantial burden on GFS that is plainly disproportionate to the marginal relevance of this information to the issue of quantum of damages, if any, sustained by the franchisees.

D. DISCOVERY AND PRODUCTION IN A CLASS ACTION

[65] Section 15(1) of the Class Proceedings Act, 1992 states that parties to a class proceeding have the same rights of discovery under the rules of court against one another as they would in any other proceeding.

[66] The basic scope of an examination for discovery is set out in rule 31.06 (1) of the Rules of Civil Procedure, which states:

31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

[67] The case law has developed the following principles about the scope of the questioning on an examination for discovery:

• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings: Playfair v. Cormack (1913), 1913 CanLII 599 (ON SC), 4 O.W.N. 817 (H.C.J.).

• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted: Playfair v. Cormack , supra.

• An examination for discovery is a device of civil procedure designed to assist a party in proving his or her claim or defence. It, however, is not meant to be an instrument for a party to discover whether he or she has a claim or defence, although this sometimes occurs as a by-product of a properly conducted discovery. Overbroad or speculative discovery is not permitted: Cominco Ltd. v. Westinghouse Can. Ltd. (1979), 1979 CanLII 489 (BC CA), 11 B.C.L.R. 142 (B.C.C.A.); Allarco Broadcasting Ltd. v. Duke (1981), 1981 CanLII 723 (BC SC), 26 C.P.C. 13 (B.C.S.C.).

• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds: Graydon v. Graydon (1921), 1921 CanLII 444 (ON SC), 67 D.L.R. 116 (Ont. S.C.) at pp. 118 and 119; Kay v. Posluns (1989), 1989 CanLII 4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.) at p. 246; Ontario (Attorney General) v. Ballard Estate (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39 (C.A.) at p. 48; 671122 Ontario Ltd. v. Canadian Tire Corp., [1996] O.J. No. 2539 (Gen. Div.) at paras. 8-9; Caputo v. Imperial Tobacco Ltd., [2003] O.J. No. 2269 (S.C.J.); Andersen v. St. Jude Medical Inc., [2007] O.J. No. 5383 (Master).

• The deponent on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue: Van Horn v. Verrall (1911), 3 O.W.N. 439 (H.C.J.); Rubinoff v. Newton, 1966 CanLII 198 (ON SC), [1967] 1 O.R. 402 (H.C.J.); Kay v. Posluns, supra.

• The deponent on an examination for discovery may be questioned about the party’s position on questions of law; Six Nations of the Grand River Indian Band v. Canada (Attorney General) (2000), 2000 CanLII 26988 (ON SCDC), 48 O.R. (3d) 377 (S.C.J.).

[68] Materiality and relevance are key determinants in determining the propriety of a question on an examination for discovery because a deponent may justifiably refuse to answer a question if it is not material or relevant.

[69] What facts are in issue, which is to say, what facts are contested or disputed, is explained by the idea of materiality. Evidence that does not address any issue arising from the pleadings or the indictment (a fact in issue) or the credibility of a witness (perception, memory, narration, or sincerity) is immaterial, and it is inadmissible: Sopkina, Lederman, Bryan, The Law of Evidence in Canada (2nd ed.), paras. 2.36, 2.50. For example, a person’s mental state may be an issue in a given case. If it is an issue, then evidence that would be relevant to proving that the person was inebriated or angry or depressed would be material. If the person’s mental state was not an issue in the case, then the evidence about inebriation, anger, or depression would be immaterial because it would be of no moment to the outcome of the case.

[70] To be relevant, evidence must increase or decrease the probability of the truth of the facts in issue: R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190; Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709. Relevance is about the tendency of the evidence to support inferences. In R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R 339 at para. 38 the Supreme Court of Canada stated:

To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of the fact in issue.” … As a consequence, there is no minimum probative value required for evidence to be relevant.

[71] In R. v. Pilon, 2009 ONCA 248, [2009] O.J. No. 1172 (C.A.) at para. 33. Justice Doherty stated:

Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely. … Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties.

See also R. v. Watson, 1996 CanLII 4008 (ON CA), [1996] O.J. No. 2695 (C.A.).

[72] In determining relevance, it is very helpful to ask how or in what way the evidence would contribute to showing the existence or non-existence of the material fact. In their text, Evidence – Principles and Problems (9^th ed.) (Toronto: Carswell, 2011) at pp. 158-9, Professors Delisle, Stuart, and Tanovich, explain the value of this approach:

The next time someone says to you that the evidence is clearly relevant ask the proponent of the evidence to articulate for you what premise she is relying on. If she has no premise the evidence is irrelevant. If she has a premise you can debate with her the validity of the premise. What experience does she base it on? Is there contrary experience? Is the premise based on myth? Is the premise always true, sometimes or only rarely? These latter parameters do not affect relevance since relevance has a very low threshold but may affect the probative worth which may cause rejection of the evidence if the probative value is outweighed by competing considerations. Approaching discussions in this way may yield a more intelligent discussion than the oftentimes typical exchange of conclusory opinions.

[73] In class proceedings, the general rule is that the examinations for discovery are restricted to just the issues that have been certified: 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, [2003] O.J. No. 5703 (Master) at paras. 6 and 9; Andersen v. St. Jude Medical Inc., [2006] O.J. No. 3659 (Master), aff’d [2006] O.J. No. 5769 (S.C.J.); T.L. v. Alberta (Child, Youth and Family Enhancement Act, Director), 2010 ABQB 203 at para. 18; Abdulrahin v. Air France, 2010 ONSC 3953.

[74] However, the approach of restricting the scope of the common issues trial and the associated discovery process to the certified questions is not an absolute rule: Pennyfeather v. Timminco Limited, 2011 ONSC 4257; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2008 CanLII 42422 (ON SC), [2008] O.J. No. 3304 (S.C.J.).

[75] The proportionality principle set out in rule 29.02.03 applies to limit the scope of examinations for discovery, including discovery in class actions. Rule 29.02.03, states:

29.02.03. (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

[76] For a discussion of the proportionality principle, see my judgment in Ontario v. Rothmans Inc., 2010 ONSC 2504; Abrams v. Abrams (2010), 2010 ONSC 2703, 102 O.R. (3d) 645 (S.C.J.); and T.C.W. Farrow, “A Cultural Revolution” (2012), 1 CivLP 151.

E. ANALYSIS

1. Methodology

[77] On these refusals motion, for analytical purposes, certain questions can be and have been grouped in classes by the parties, and I discuss some of these classes of questions below. However, there is no getting around the reality that for the purposes of deciding a refusals motion, each question and each refusal and the adequacy of each answer must be individually considered. In the immediate case, the outcomes of those individual analyses are set out in the charts found in Schedule “A” to these Reasons for Decision. As appears, very few questions need be answered.

[78] As a matter of methodology, I will have some general comments about the classes of questions, but I shall determine the propriety of each question through the filter of seven criteria that would justify a party refusing to answer a question on an examination for discovery. Although I will have some comments below about the criteria, I shall not, however, provide in the charts the discrete analysis for each of the questions that led me to my categorical designations.

[79] The categorical justifications for refusals are:

(1) unanswerable- the question is not capable of being answered, which is to say that the question is vague, unclear, inconsistent, unintelligible, redundant, overreaching, speculative, unfair, or a matter of rhetoric or argument;

(2) immaterial - the question is not material, which is to say that the question falls outside the parameters of the action and does not address a fact in issue;

(3) irrelevant - the question is not relevant, which is to say that the question does not have probative value; it does not adequately contribute to determining the truth or falsity of a material fact;

(4) untimely - the question is not relevant to the class period because it concerns events or matters outside of the class period, or more generally, it concerns events temporally unconnected to a cause of action or defence;

(5) idiosyncratic or uncommon - the question is not relevant to the common issues because it concerns an individual inquiry that was not certified for the common issues trial;

(6) disproportionate - the question is disproportionate, which is to say that the question may be relevant but providing an answer offends the proportionality principle; and

(7) privileged – the answer to the question is subject to a privilege, including lawyer and client privilege, litigation privilege, or the privilege for communications in furtherance of settlement.

[80] The above methodology refines and enhances the methodology to decide a refusals motion that I used in Axiom Plastics Inc. v. E.O. Dupont Canada, 2011 ONSC 4510.

[81] The charts in Schedule “A” set out the disputed questions. In some instances, the chart will note that a party has now withdrawn a question or withdrawn a refusal. For the remaining questions, I either note that: (a) the question should be answered (“answer required”); or (b) the refusal is justified (“refusal justified”).

[82] Where I sustain a refusal, I provide the categorical reason(s) why the refusal is justified. For most justified refusals, there is more than one categorical justification for the refusal.

[83] Before moving on to the general discussion of some of the grouped questions, I wish to note several aspects about my categorical designations. In this regard, I wish to note that I will assess the propriety of the question even if the question was partially answered and the refusal is to provide more information or the dispute is only about the adequacy of the answer. In other words, even if a question was partially answered, I will not order a party to provide additional information to answer the question, if I am satisfied that the question was unanswerable, immaterial, irrelevant, untimely, idiosyncratic or uncommon, or unfair.

[84] In assessing proportionality, I have taken into account the extent of the information that has already been provided and the extent to wish it appears from the record that the questioner is engaged in a fishing expedition.

[85] In some instances, it appeared to me that the disputed question had been answered, but a litigant had not taken the time to do its own analysis to determine whether the documents were responsive to the questions. Put simply, some of my rulings that a question is disproportionate (i.e., offends the proportionality principle) reflect the fact that the question appears to have been answered. In other instances, my ruling about proportionality reflects an analysis that answering the question is unnecessary or would contribute little of probative value.

[86] With respect to privilege, I have decided to adjourn the motion in so far as the question may touch exclusively upon a matter of privilege. There was an insufficient evidentiary record for me to determine the merits of the assertions of privilege.

2. The Criterion of Relevancy

[87] As a general matter, concerning my rulings about relevance, I say, with respect, that during the argument of these refusals motions, from time to time, both sides advanced conclusory arguments and simply asserted that their question was relevant and that they were “entitled” to an answer. However, in many instances, the party did not or could not connect the dots and explain how the answer to the question would increase or decrease the probability of the truth of the fact in issue.

[88] Some of my rulings about relevancy reflect the fact that the party seeking an answer to a question did not or could not answer my question about relevance other than to say that the desired evidence was “about” the alleged material fact in some unarticulated way.

[89] An example of a weak argument about relevance is found in paragraph 48 of the Plaintiffs’ factum, which states:

48. The majority of the Divisional Court held that the resolution of “the factual and legal relationship between the franchisor and franchisees” and “the factual and legal relationship between the [defendants]” would advance the claim of the class members. The plaintiffs are entitled to know how the Quiznos corporation was structured, who was employed by each of its entities, and the specific responsibilities of those entities.

[90] With respect, this conclusory entitlement argument does not justify or explain how for the purposes of the common issues trial in the case at bar, there is anything probative to the common issues about information about the overall corporate organization or about whom was employed by Quiznos.

[91] Another example of a weak conclusory argument is found in paragraph 42 of GFS’s factum, which states:

42. The gravamen of the Plaintiffs' complaint in this case is that they paid too much for the food and other supplies they purchased for use in their Canadian Quiznos restaurants. Accordingly, questions about the nature of the distribution and pricing practices the Plaintiffs say resulted in inflated prices are clearly relevant to the certified common issues, as informed by the pleadings in this case.

[92] Again, with respect, it may be that the gravamen of the Plaintiffs’ individual cases is that they paid too much for supplies, but the gravamen of the class action is that the franchisees - as a group - overpaid because of systemic misconduct and that the group’s overpayment can be assessed in the aggregate; i.e., as a bulk claim. In addition to being disproportionate, shotgun questions about the nature of distribution and pricing practices for all the food and other supplies purchased by franchisees want for the precision necessary to make the questions relevant to the top-down approach, which allows a meaningful and feasible common issues trial of the questions that were certified as common issues.

[93] Still dealing with the matter of relevancy, as noted above, relying on the reasons of the Divisional Court in certifying this action, the Plaintiffs submit that all their questions are relevant to the nature and extent of the mark-up and sourcing fees, which is a common issue.

[94] Thus, the Plaintiffs submit that Quiznos should have answered questions relating to decisions to reduce CFD’s involvement in the Canadian supply chain, questions pertaining to rebates received by CFD, and questions about Quiznos’ sales trends and profits, including questions that seek gross profit analyses product-by-product. Similarly, the Plaintiffs submit that GFS should have answered all questions about its communications with Quiznos and Quiznos’ franchisees, including communications about the pricing of products. Further, the Plaintiffs submit that GFS should have answered questions about its distribution agreements with other purchasers and questions about the price at which GFS sold goods to other customers.

[95] In my opinion, the Plaintiffs’ submissions are not correct, and they err by ignoring their own assessment of what makes the case at bar suitable for certification as a class action.

[96] After they achieved certification of a top-down set of common issues, the Plaintiffs would mutate the common issues into a disproportionate and unmanageable bottom-up approach of product-by-product questioning. Many of the Plaintiffs’ questions would appear to entail an individualized inquiry about whether the Defendants overcharged for any or all of the 256 prescribed products. Other questions seem to be an inquiry about what the Defendants knew about how their competitors’ priced any of the 256 prescribed products. Material and relevant questions do not involve a bottom-up inquiry and analysis of how the Defendants mark up and price each of the 256 specified products.

[97] The common issue about mark-ups and sourcing fees is a focused issue, and to use the language of the Divisional Court, it involves inquiries about a top-down systemic approach by the Defendants to charge mark-ups and sourcing fees. The Plaintiffs acknowledged as much when they told the Divisional Court that they intended to focus on 10 products that comprise 70% of the value of products purchased. Moreover, while it is true that this class action is about alleged overcharging by the Defendants on supplies which the franchisees must purchase for their businesses, the focus of the action is about systemic overcharging not individual product overcharging.

[98] The Divisional Court did not disagree with me that a bottom-up approach involving each product would not present a common issue suitable for certification. The case at bar is not about whether the price of cheese or any individual product supplied to the franchisees was excessive because of mark-ups and sourcing fees; rather, it is about whether the Defendants had a system of price maintenance for its prescribed products because of mark-ups and sourcing fees. What was certified by the Divisional Court was an inquiry about whether the Defendants systemically maintained prices.

[99] Thus, in assessing the relevancy of the parties’ questions, I have kept in mind that the case involves a top-down analysis of the Defendants’ systemic conduct.

[100] In this last regard, as noted above, the Plaintiffs also seek to have GFS produce its records of sales to franchisees, which information the Plaintiffs say is critical for assessing the franchisees losses. However, I find it inconsistent that the Plaintiffs say that they need records of the sales to the 450 franchisees to prove the franchisees’ damages as a common issue when it is patent that this would be a bottom-up approach to damages.

[101] I repeat that the Plaintiffs’ submission that persuaded the Divisional Court was that they were not advancing a bottom-up approach. Thus, at para. 98 of its judgment, the Divisional Court noted and relied on Justice Hoy’s judgment in Axiom Plastics Inc. v. E.I. DuPont Canada Co. (2007), 2007 CanLII 36817 (ON SC), 87 O.R. (3d) 352 (S.C.J.), leave to appeal denied, (2008) 2008 CanLII 23490 (ON SCDC), 90 O.R. (3d) 782 (Div.Ct.) at para. 137, where she held that on basic economic principles where persons were required to buy products they would suffer some loss as a result of a vertical price fixing conspiracy contrary to s.61(1) of the Competition Act. The Plaintiffs persuaded the Divisional Court that there was some basis in fact for a top-down methodology to prove that all class members had suffered a loss and there was some basis in fact for a methodology to show a loss across all class members, i.e., an aggregate loss.

[102] Thus, in assessing the relevance of the Plaintiffs’ questions about GFS’s sales to franchisees, once again, I have kept in mind that this case should not morph into a bottom-up approach that wants for commonality and feasibility.

[103] Similarly, the propriety of some of the Defendants’ questions must be assessed in light of the top-down approach that was seen as making a class action the preferable procedure to decide the common issues.

3. The Propriety of Questions about Aggregate Damages

[104] The questions of whether the franchisees suffered loss or damage and what is the appropriate measure of the loss are certified common issues. The question of whether the Court should award an aggregate assessment on behalf of some or all class members, as well as what is the amount of the aggregate assessment and how franchisees should share the award are common issues.

[105] In my opinion, some of the questions purporting to be questions about aggregate damages were improper and reflected a misapprehension about the nature of aggregate damages.

[106] Section 24 of the Class Proceedings Act, 1992 authorizes the court in certain circumstances to make an aggregate assessment of monetary relief. Section 24 states:

Aggregate assessment of monetary relief

24. (1) The court may determine the aggregate or a part of a defendant’s liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class members;

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; and

(c) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.

Average or proportional application

(2) The court may order that all or a part of an award under subsection (1) be applied so that some or all individual class members share in the award on an average or proportional basis.

Idem

(3) In deciding whether to make an order under subsection (2), the court shall consider whether it would be impractical or inefficient to identify the class members entitled to share in the award or to determine the exact shares that should be allocated to individual class members.

Court to determine whether individual claims need to be made

(4) When the court orders that all or a part of an award under subsection (1) be divided among individual class members, the court shall determine whether individual claims need to be made to give effect to the order. Procedures for determining claims

(5) Where the court determines under subsection (4) that individual claims need to be made, the court shall specify procedures for determining the claims.

Idem

(6) In specifying procedures under subsection (5), the court shall minimize the burden on class members and, for the purpose, the court may authorize,

(a) the use of standardized proof of claim forms;

(b) the receipt of affidavit or other documentary evidence; and

(c) the auditing of claims on a sampling or other basis.

Time limits for making claims

(7) When specifying procedures under subsection (5), the court shall set a reasonable time within which individual class members may make claims under this section.

Idem

(8) A class member who fails to make a claim within the time set under subsection (7) may not later make a claim under this section except with leave of the court.

Extension of time

(9) The court may give leave under subsection (8) if it is satisfied that,

(a) there are apparent grounds for relief;

(b) the delay was not caused by any fault of the person seeking the relief; and

(c) the defendant would not suffer substantial prejudice if leave were given.

Court may amend subs. (1) judgment

(10) The court may amend a judgment given under subsection (1) to give effect to a claim made with leave under subsection (8) if the court considers it appropriate to do so.

[107] An aggregate assessment is not the tallying of the individual class members’ claims. Rather, it is a communal assessment of the totality of the class members’ claims where the underlying facts permit this to be done with reasonable accuracy. Then, with the quantum of the defendant’s liability to the class determined, the court can decide how to distribute the judgment in proceedings in which the defendant need not be involved.

[108] The Class Proceedings Act, 1992 is a procedural statute, and it does not create liability that does not otherwise exist. In circumstances where the assessment of damages is necessarily idiosyncratic to individual members of the class and where an element of liability cannot be determined without the evidence of individual class members, the issue of damages is not common and an aggregate assessment of damages is not appropriate: Nadolny v. Peel (Region), [2009] O.J. No. 4006 (S.C.J.) at para. 100; Bywater v. Toronto Transit Commission (1999), 1999 CanLII 14779 (ON SC), 43 O.R. (3d) 367 (Gen. Div.) at para. 18.

[109] After an aggregate assessment, the defendant will not be paying more than he or she would pay had the individual class members’ claims been calculated after individual issues trials, and, thus, the defendant should be indifferent as to how the court decides to divide the aggregate assessment.

[110] In its Report on Class Actions, (Toronto: Ministry of the Attorney General, 1982), the Ontario Law Reform Commission described this conception of aggregate damages at p. 532 of its report as follows:

The means of treating monetary relief as a common question that has received the greatest support from proponents of class actions is the technique known as “aggregate assessment.” This involves a determination, in a single proceeding, of the total amount of monetary relief to which the class members are entitled, where the underlying facts permit this to be done with an acceptable degree of accuracy. Judgment is given for the aggregate amount, and the resulting award is then distributed in proceedings in which the defendant need not be a party. …. It should be noted that an aggregate assessment of monetary relief is necessarily unique to class actions, since judicial economies of this kind, by definition, cannot achieved where the court is dealing with individual litigants.

[111] In the case at bar, for the examinations for discovery, both parties seem to have designed their questions about an aggregate assessment as if an aggregate assessment required information about each class member’s particular financial and business circumstances and about how each class member was individually harmed by the Defendants’ alleged misconduct. That is not an aggregate assessment; it is the opposite of an aggregate assessment, and such questioning is not consistent with the top-down approach mandated for the certification of this action.

[112] As revealed by the proceedings for certification, it may be anticipated that the evidentiary basis for an aggregate assessment will involve the opinion evidence of experts who will be able to use the information about allegedly systemic mark-ups and sourcing fees to show that the class members suffered an aggregate loss. The extent to which the Representative Plaintiffs or any individual class member suffered financial losses is not an aggregate assessment. The Defendants will understand the case they have to meet when they received the experts’ reports in accordance with the Rules of Civil Procedure.

[113] In making some of my rulings that a refusal to answer was justified, I have taken into account whether the question was directed at a genuine aggregate assessment as opposed to obtaining information for individual assessments of loss.

4. The Temporality of the Plaintiffs’ Questions

[114] The Plaintiffs allege that the Defendants engaged in a price maintenance scheme. They allege that the scheme is continuing, and in addition to damages, they seek a permanent injunction. Based on the on-going nature of their allegations, the Plaintiffs seek information about the Defendant’s ongoing conduct and about the alleged price maintenance scheme on an ongoing basis.

[115] The Defendants, however, refuse to answer questions that probe for information outside the implicit class period established by the definition of the class, which is: “all persons, including firms and corporations, carrying on business in Canada under a Quiznos Franchise Agreement at any time between May 12, 2006 and November 23, 2009.”

[116] The Defendants base their refusal on the law about class definitions and class periods having a finite start-date and a finite end-date. See Magill v. Expedia Canada Corp., 2010 ONSC 5247, [2010] O.J. No. 4051 (S.C.J.). I, however, do not see the problem with the Plaintiffs’ request for ongoing information about the alleged price maintenance scheme as being a problem associated with class definitions and class period commencement or closure. Rather, it is a more fundamental problem associated with the establishment of a cause of action and the adversarial process that converts the cause of action into a judgment.

[117] The problem of temporality in the case at bar is that it appears that the Plaintiffs wish to prove a conspiracy based on events occurring up after the commencement of the action and up to the start of the common issues trial. Among other problems associated with this approach of an ongoing or renewing cause of action, is the fact that s. 61 of the Competition Act was repealed in 2009. (See Budget Implementation Act, 2009, S.C. 2009, c. 2, s. 417.)

[118] Be that as it may, in the main, proceedings (actions or application) leading to the proof of a cause of action involve the proof of events that have already occurred; i.e., events in the past before the commencement of the action.

[119] Normally, the defendant does something in the past that harmed the plaintiff, for which he or she claims a remedy, usually a monetary remedy by commencing an action. The discovery and trial process will concern proving those past events. Although the quantification of the plaintiff’s remedy will involve him or her providing evidence about future events, some of it predictive evidence, on the issue of liability, the plaintiff will typically have to prove that he or she has already been harmed at the time of the commencement of the cause of action.

[120] Proceedings, do also involve present and ongoing events. Matrimonial proceedings are an example, but even then, the court is largely engaged in adjudicating events in the proximate past.

[121] I think that it is trite to say that the civil process is essentially about the proof of events in the past. To take the simple example of a breach of contract action, the plaintiff will plead in his or her statement of claim that there was a contract and that it was breached. The events described in the statement of claim will have occurred before the commencement of the action described in the statement of claim. Typically, the relevant evidence for a breach of contract claim will be the evidence from around the formation of the contract until its breach and the aftermath of the breach up to the commencement of the action for breach of contract. Thus, the procedural and forensic exercise of proving the claim will typically involve the disclosure of documents and information about past events pleaded in the statement of claim. Most litigation has a natural cutoff for relevant evidence.

[122] Therefore, even if price maintenance remained unlawful after 2009, I do not see how evidence of whether the Defendants engaged in price maintenance in 2010 and onward is relevant to proceedings commenced in 2006 with an effective class period up to 2009.

[123] In the case at bar, the Defendants argue that for the purposes of a class action, the end of the class period is the cutoff for the disclosure of relevant documents and information. So far, the Defendants have provided information about their conduct and pricing policies until around 2009. This is actually generous, because usually the cutoff for evidence about liability is the date of the commencement of the proceedings. On that basis, the Plaintiffs’ evidentiary foundation for their claim in the case at bar would be a violation of the Competition Act, a conspiracy, or a breach of contract between February 2003, when the Defendants signed their agreement and May 2006, when the Plaintiffs commenced their proposed class action.

[124] During argument, the Plaintiffs conceded that, practically speaking, there must be a cutoff date for determining relevance, but they could not suggest one, and they simply made the conclusory argument that they were entitled to more disclosure from the Defendants, including information that extended beyond the implicit class period.

[125] It is just and procedurally fair that there be a temporal dividing line to define the cutoff for relevant evidence. If there were no temporal benchmark, then a plaintiff could sue without a cause of action in anticipation of perfecting or discovering one. The case at bar provides an illustration. In the immediate case, the Plaintiffs apparently want information about mark-ups and pricing in 2010 and beyond in order to prove that they had reason to sue the plaintiffs for the alleged misconduct in February 2003 when the alleged conspiracy is alleged to have begun. This has the aura of fishing for a cause of action.

[126] I, therefore, conclude that depending on the issue, questions about the Defendants’ conduct after 2009 may be immaterial or irrelevant. In short, I agree in principal with the Defendants’ submission that some of the Defendants’ questions are irrelevant as concerning events after the cutoff of the class period end-date.

[127] However, only some of the questions are subject to this submission because, for instance, some questions concern the Plaintiffs’ remedies, and these questions may involve ongoing events or predictions about future events.

5. The Request of Documents in Excel Format

[128] In accordance with the discovery plan agreement between the parties, Quiznos produced its documents in a searchable electronic format; namely TIFF. The Plaintiffs subsequently discovered or realized that some of the documents had originally been produced in Excel Format, which would allow not just searching but a more robust manipulation of the data to produce reports and analyses. The Plaintiffs asked Quiznos to re-produce copies of the Excel documents. Quiznos refused this request.

[129] As it emerged during the argument of this motion, Quiznos’ refusal is largely a technicality. I was advised that there would be no hardship or difficulty in providing copies of documents in their original Excel format. Quiznos submits, however, that it has honoured the discovery plan and that it is under no obligation to produce the documents other than in the agreed format.

[130] While I agree that discovery plans are important and that generally speaking a court should not allow the significant effort to establish a plan becoming a waste of time and effort by not holding parties to their agreement, discovery plans are just that, they are a plan and there is an old maxim that it is a bad plan that admits of no modification.

[131] I am not impressed with Quiznos’ purely technicality argument. For the already produced documents, if there is a readily available copy in Excel format, then the document should be produced again in Excel format.

F. CONCLUSION

[132] An order should issue in accordance with these Reasons for Decision.

[133] My present inclination is to order costs in the cause, but if the parties cannot agree about the matter of costs, they may make submissions in writing within 20 days of the release of these reasons.

Perell, J.

Released: November 21, 2012

SCHEDULE “A”

JOHNSON

Q. No.

Pg.

Question

Disposition by the Court

63

13

To produce the franchise agreements that pertain to each of the three Douglas Johnson’s three companies.

Question Withdrawn

68

15

To adopt the answers to the questions that were asked of Douglas Johnson during cross-examinations on affidavits for the certification motion for this action.

Answer Required

137

26

To provide consent to allow us to make an inquiry of the Grant Thornton office in Fredericton, New Brunswick to determine who it is that might have assisted Douglas Johnson with an analysis of whether Quizno’s would be a good franchise to join.

Refusal Justified

Immaterial

Irrelevant

139

26-27

To produce records that the accountant or Grant Thornton might have of the services that were provided to Mr. Johnson and his brother around the time they were exploring the franchise opportunity for Quizno’s.

Refusal Justified

Immaterial

Irrelevant

271

52-53

To advise of what is under the redacted portion of the e-mail string between Mr. May and Douglas Johnson ending November 11, 2006.

Question Withdrawn

373

69

To provide the document numbers that pertain to all of the order guides that Mr. Johnson in any of his stores received from the commencement of his operations to the completion of his operations.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or Uncommon

Disproportionate

412

76

To produce a copy of the order guide containing the prices listed on the bottom of page 1 of the document CLA004147.

Refusal Justified

Unanswerable

Idiosyncratic or Uncommon

465

86

To provide any and all source information that supports the amount that is written under the “Alternative Price” column and any of the conditions that are attached to each item (description of the quality, quantity, delivery terms, credit terms, method of use, shelf life and moisture content).

Refusal Justified

Idiosyncratic or uncommon

Disproportionate

468-478

87-89

To advise if Mr. Johnson becomes aware of any other factors (besides quality) that would justify paying a higher price for a product?

Refusal Withdrawn

503

2211

To advise whether the plaintiffs dispute that CFD is entitled to add its own mark-up to the cost of product it is selling directly to GFS or to instruct GFS to add a sourcing fee to products that GFS is purchasing from other approved suppliers for sale to Canadian franchisees.

Refusal Justified

Unanswerable

Immaterial

Irrelevant

505

141

How much money has GFS received from all sources since January of 2003 as a result of being a distributor for the Quiznos system in Canada?

Question Withdrawn

515-517

95-96

To produce a copy of the engagement letter between Denver Subs and Wilson & Dover.

Refusal Withdrawn

518

96

To produce any and all independent inquiries or inquiries made by Wilson & Dover with respect to food costs and the cost of supplies, both before and after April 10, 2006.

Refusal Withdrawn

524

97

Advise what information obtained from similar food service restaurants was referred to in CLA004229, and to produce that information, whether written or recounted from oral reports.

Refusal Justified

Unanswerable

Idiosyncratic or uncommon

792

147

To identify the documents where Mr. Johnson or Denver Subs complained about the cost of bacon gradually increasing.

Refusal Justified

Unanswerable

Irrelevant

809-811

149-150

To advise if there has been anything produced from Don Ritchie in the materials regarding food costs and to produce it if Mr. Johnson becomes in possession of it.

Question Withdrawn

853

165

To produce the order guide and a corresponding invoice from Mr. Johnson’s stores for tuna in the large size and the very next order guide and set of invoices when the tuna switched to the small size, and then the order guides and invoices for when the tuna switched back to the large size. Also to produce any other information that could supplement source documents.

Question Withdrawn

855

166

To produce the order guide and invoices that pertain to the deliveries to Mr. Johnson’s or Mr. May’s stores with respect to roast beef from McGregor’s and then the month after that when it changed to frozen roast beef and the order guide price and then the invoice price for those.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

Disproportionate

919

180

Provide any information regarding the price that GFS supplied the non-Quiznos t-shirt bags at.

Question Withdrawn

1015

197

Identify and produce a copy of the order guide that Mr. Johnson took the Maritimes information from (in CLA005410).

Question Withdrawn

1032

202

To review Mr. Johnson’s records and determine whether the electronic form of the message from Natasha Atkinson (from December 8, 2004) has an attachment, and to produce the attachment. Make inquiries to obtain the electronic form of the message and attachment if necessary.

Question Withdrawn

1171

227

To look and see where the numbers in Mr. Johnson’s email (of November 8, 2006) came from, i.e. which order guide and if the information in the e-mail is accurate.

Refusal Justified

Immaterial

Irrelevant

1176

228

To make inquiries (of Mr. Jonathan Talbot-Kelly, KDL, etc.) if a response was received from email No. CLA003388, and to produce the response.

Refusal Justified

Immaterial

Irrelevant

1204

234

To provide an answer to the question of whether Quizno’s was obliged to take an action to indicate the existence Canada Food Distribution Company other than report it in its financial statements.

Refusal Withdrawn

1242

244

To make inquiries and produce the spreadsheet that is referred to in the email (CLA001878).

Answer required

1247

245

To make inquiries and produce the spreadsheet referred to in the email from Mr. Talbot-Kelly of April 6, 2006 to Gord Connelly (CLA004209).

Question Withdrawn

1253

246

To advise of whether Mr. Johnson has a copy of the word document referenced in his email dated September 19, 2006 (CLA005198) that includes a breakdown of some of the pricing increases over a four year period.

Answer required

1291

252

To locate and produce the food cost attachment or response from Debbie Warner (the “franchise consultant”) being referred to in an email from Mr. Johnson to members of the Denver Subs Association (CLA005199).

Answer required

1302

254

To locate and produce a copy of the blastfax that supports Mr. Johnson’s calculation that the 31.8% cost in the email at CLA005199 is not accurate.

Question Withdrawn

1328

259

To make inquiries, produce or identify the production number of John Kileel’s calculation that determines theoretical food costs where waste is incorporated.

Refusal Justified

Irrelevant

Idiosyncratic or uncommon

1345

262

To review Mr. Johnson’s records, make inquiries of Mr. Kileel or his company or any of Denver Subs’ records, and produce any and all communications between Sodexho and Denver Subs Association or any of the other representatives in respect of what is being discussed in the email from John Kileel To Mr. Johnson on October 20, 2006 (Document CLA005329) or in general

Refusal Withdrawn

1350

263

To make inquiries of Mr. Kileel or KDL and produce a copy of the attachment referred to at CLA07181.

Answer Required

1415

273

Produce any written document or any order guide or any US produced document that showed chicken was $110 per 40 pound case.

Question Withdrawn

1422

274

Produce, if it exists, any written information from Brij (franchisee) in Calgary regarding the price of chicken that was used in the comparison between Western Canada and the US.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

1471

288

Produce financial statements for the year that ended December 31, 2002.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

1516

296

Provide information regarding what the $80,000 loan to shareholders refers to in CLA002748.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

1519

298

Inquire of Mr. Johnson’s accountant and advise whether the mortgage referred to in CLA004609 was in respect of property that someone else owned, and produce the details of the mortgage such as who the mortgagee is, who the mortgagor is, etc.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

1540

300

Inquire of Mr. Johnson’s accountant and advise on what loan the interest is referring to in CLA004609 and the rates if it’s not already produced in respect of the mortgage or long-term debt.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

1595

317

Identify what statements were made by Quizno’s that one of the benefits of being a Quizno’s franchisee is enjoying the purchasing power of the franchise system and identify who made these statements.

Question Withdrawn

1631

325

To provide an answer to whether Mr. Johnson is aware of any contractual term or obligation that Quizno’s has that requires it to present him with actual costs of goods from the manufacturer.

Refusal Withdrawn

1637

327

To provide an answer to whether Mr. Johnson thinks that the amount of the mark-up on the price of food products matters if the price he was paying for food products from Quizno’s was as low or lower than he could get anywhere else in the marketplace.

Refusal Withdrawn

1638

328-329

To provide an answer as to whether it is the amount of markup on the price of food products matters that is at issue in this lawsuit or whether Mr. Johnson can buy the product at a lower cost somewhere else that is at issue in this lawsuit.

Refusal Withdrawn

1658

334

To inquire with anybody involved in this lawsuit what information they have that supports the following statement from page 3 of the “Response to the White Paper” (letter written to Quizno’s by John Kileel dated January 16, 2007 (document CLA005817): “It’s our position total costs [for goods] should not be more than 30% on net three sales.”

Refusal Withdrawn

1661

335-336

To go through each order guide and review each item in every order guide in Mr. Johnson’s productions and for the period of time that that order guide pertains to provide Mr. Johnson’s indication as to whether or not at that time he could get the same or similar product for a lower price. Also to produce whatever information Mr. Johnson has in support of the availability of similar products for a lower price, and information as to whether that product was of the same quality as the Quizno’s item it is being compared to, whether it was available at all times in the same quantity that Mr. Johnson would need it, whether it would be delivered to his door and if so, how often and for what charge, what the credit terms were in respect of such an order, and whether the method of use (ease of assembly, shelf life, moisture content) once the product arrived at his door was similar to the method of use if it had been a Quizno’s item.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

Disproportionate

1662

336-337

To review each of the invoices that Mr. Johnson has produced for all the items we know he did buy and advise as to whether he is aware at the time he bought it whether any same or similar product could be obtained at a cheaper price on the same terms that GFS Canada Company Inc. provided them to him of the same quality, with the same assembly and ease of use qualities.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

Disproportionate

1672

339

To produce resumes for Mr. Wilson and Mr. Dover.

Refusal Justified

Immaterial

Irrelevant

1690

343

To review each of the invoices that Mr. Johnson has produced for all the items we know he did buy and advise as to whether he is aware at the time he bought it whether any same or similar product could be obtained at a cheaper price on the same terms that GFS Canada Company Inc. provided them to him of the same quality, with the same assembly and ease of use qualities.

Refusal Withdrawn

1725

352

To make inquiries to find out whether any written notice was provided to Quizno’s before Wilson and Dover made any steps to contact suppliers. Also to find out whether the food experts were instructed to provide written notice and whether they were made aware of the obligations in 13(5) of the franchise agreement.

Question Withdrawn

1773

362-363

To provide an answer as to whether the Law Society of Upper Canada’s Rules of Professional Conduct were referred to in his letter (document CLA004098), as referenced in paragraph 35(e) of the Amended Amended Statement of Claim to make Quizno’s counsel look negatively.

Refusal Justified

Immaterial

Irrelevant

1775

364

To produce all of the requests for quotation from Quizno’s suppliers that were made by Dover and Wilson.

Refusal Withdrawn

1776

365

To produce, in addition to all of the requests for quotation made by Dover and Wilson, any and all communications between Denver Subs Association and Dover and Wilson, including any communications between Sotos LLP, or another firm and Dover and Wilson.

Refusal Justified

Unanswerable

1776

365-366

To advise how the threat contained in the letter dated March 13, 2006 from Teplitsky Colson (document CLA004098) constitutes a threat or other like means within the meaning of section 61 of the Competition Act R.S.C., 1985, c. C-34 as alleged in paragraph 36 of the Amended Amended Statement of Claim.

Refusal Withdrawn

1784

370-371

To provide an answer to whether Mr. Johnson believed he had the ability to set up direct purchasing arrangements with suppliers.

Question Withdrawn

1779-1779

366-367

To ask Dover and Wilson whether they agree or disagree with the paragraph in the letter dated March 13, 2006 from Teplitsky Colson (document CLA004098) which states: “given the nature of your retainer and your professed experience, it’s clear that you knew or ought reasonably to have known that each Quizno’s franchisee has both the rights and is subject to the obligation of a franchise agreement, and furthermore, that it’s a standard in the industry that such franchise agreements contain provisions designed to protect the franchisor’s exclusive methods, proprietary processes, intellectual property rights.”

Refusal Withdrawn

1783

370

To provide an answer to the question of whether, with respect to paragraph (a) of the letter dated March 13, 2006 from Teplitsky Colson (document CLA004098, referred to in paragraph 35(a) of the Amended Amended Statement of Claim), Mr. Johnson understood that he did not have the right and ability to set up direct purchasing arrangements with suppliers save for produce and save for one-off items from time to time.

Refusal Justified

Unanswerable

1805

375

To provide an answer as to whether Mr. Johnson, as a franchisee or Denver Subs Association, as an association, had the right or the opportunity to enter into negotiations with Quiznos to secure the ability to set up direct purchasing arrangements with suppliers.

Refusal Justified

Unanswerable

Irrelevant

1817

378

To inquire and advise of whether Mr. Johnson has produced all of the cover letters that covered the quotations or request for quotations.

Refusal Justified

Unanswerable

1817

379

To make inquiries to identify the list of suppliers to whom the requests for quotation were made.

Answer Required

1854

389

To advise if there are other requests to GFS to lower prices where GFS responded by saying they were restricted by Quizno’s (similar to the letters sent out by Mr. Johnson, Mr. Kileel and Ms. Barclay from April 10, and 12, 2006). Also to advise what production number they are if they have been produced.

Question Withdrawn

1895

375

To provide an answer as to whether Mr. Johnson, as a franchisee or Denver Subs Association, as an association, had the right or the opportunity to enter into negotiations with Quizno’s to secure the ability to set up direct purchasing arrangements with suppliers.

Question Withdrawn

1817

378

To produce each and every cover letter that as sent for the requests for quotation.

Refusal Withdrawn

1817

378-379

To provide Mr. Johnson’s best recollection of the list of suppliers to whom the requests for quotation were made, if there is no such information.

Refusal Withdrawn

1919

413

To advise which documents (other than the pricing sheets) support the allegation of a price-fixing agreement in paragraph 55(c) of the statement of claim.

Refusal Justified

Unanswerable

Disproportionate

2010

440

To provide information as to any failures by Quizno’s to give advice about how to run Mr. Johnson’s restaurant, either at the startup or during its operations.

Question Withdrawn

2012

441

To provide an answer as to what knowledge, information and belief Mr. Johnson has as to the statement that Quizno’s needs to exercise its rights and powers under section 13.4 of the franchise agreements between Quizno’s and the class members in this lawsuit, as stated in paragraph 52 of the Amended Amended Statement of Claim.

Question Withdrawn

2031

445

To provide an answer as to what Mr. Johnson says defines “commercially reasonable prices”, as stated in paragraph 55 of the Amended Amended Statement of Claim.

Refusal Withdrawn

2033

446

To identify specific things in the record that Mr. Johnson says reference or reflects commercially reasonable prices.

Refusal Justified

Idiosyncratic or uncommon

Disproportionate

2067

452

To advise of who made the promise of exclusivity (referred to in paragraph 55 of the statement of claim) and who the promise was made to, and in what form and all of the particulars of the promise.

Question Withdrawn

2070

453

To advise if there are any other documents (other than the letter that was sent to the experts by Teplitsky Colson) that will be relied on for the allegation that Quizno’s has hindered, prevented or denied class members the opportunity to source identical supplies from other suppliers.

Question Withdrawn

2072

454

To advise if Denver Subs Association instructed Wilson and Dover to stop requesting quotations from Quizno’s suppliers.

Answer Required

2073

454

To advise if Wilson and Dover sought an indemnity from Denver Subs association for any alleged action that might have been advanced against them.

Refusal Justified

Immaterial

Irrelevant

2074

455

To advise if there is any additional information, other than the Teplitsky Colson letter, that supports the allegation in 66(d) of the statement of claim.

Question Withdrawn

2075

455-456

To provide facts upon which the class members rely on to assert that they are entitled to restitutionary damages, as stated in paragraph 66A in the Amended Amended Statement of Claim.

Question Withdrawn

2075

456

To provide information that is not already known throughout the course of the examinations and the productions concerning the facts upon which or the knowledge, information and belief that the class members rely on to assert that they’re entitled to restitutionary damages.

Question Withdrawn

2081

458

To advise as to why Mr. Johnson, or anyone on behalf of the class members, have not made any complaints to any law enforcement agency with respect to Quizno’s aiding and abetting, contrary to the Criminal Code of Canada, as alleged in paragraph 71 of the Amended Amended Statement of Claim

Question Withdrawn

2300

524

Does Mr. Johnson understand that CFD has the right to add sourcing fees to the cost of the products?

Refusal Justified

Unanswerable

Irrelevant

2327

540

To provide the evidence the plaintiffs have in support of the allegation made in paragraph 45 of the Statement of Claim.

Refusal Justified

Unanswerable

Disproportionate

3021

563

To provide the evidence to be relied on by the plaintiffs in support of the allegations of conspiracy against GFS

Refusal Justified

Unanswerable

Disproportionate

3023

563

To provide the evidence to be relied on by the plaintiffs in support of the allegations that GFS aided, abetted and counselled Quiznos.

Refusal Justified

Unanswerable

Disproportionate

3106

579

To check whether there are records of purchases by Mr. Johnson’s stores from Bitarco, and if so, to produce them.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

Disproportionate

3109

579

To check whether there are records of purchases by Mr. Johnson’s stores from Coke, and if so, to produce them.

Refusal Justified

Immaterial

Irrelevant

Idiosyncratic or uncommon

Disproportionate

3225

600

To provide all communications (with redactions of any legal advice) among the franchisees with respect to the GFS With Prejudice Offer, and with respect to the dissemination of that Offer to the plaintiff group.

Answer Required

3233

602

Sitting here today, does Mr. Johnson think he had an obligation to pass the GFS With Prejudice Offer on to members of the proposed class?

Refusal Justified

Unanswerable

Immaterial

Irrelevant

3279

609

In light of the statement in the GFS With Prejudice Offer, that “GFS will supply the products which are approved by Quiznos or for which you do not need approval”, what more do the plaintiffs say GFS is required to do?

Refusal Justified

Unanswerable

3345

623

To produce all correspondence between the plaintiffs and Messrs. Wilson and Dover with respect to the project described in the February 22, 2006 Request for Quotation.

Answer Required

3384

630

To advise as to how many franchisees were in the group that made decisions for Denver Subs while Mr. Johnson was President.

Refusal Justified

Immaterial

Irrelevant

3459

642

With respect to the allegation in paragraph 71(A) of the Statement of Claim, what would happen if GFS had terminated its distribution agreement with Quiznos?

Refusal Justified

Unanswerable

Irrelevant

3470

644

What would the plaintiffs do if GFS weren’t supplying the product?

Refusal Justified

Unanswerable

Irrelevant

3482

646

To make inquiries and advise as to when Sysco began distributing supplies to Quiznos franchisees.

Refusal Justified

Immaterial

Irrelevant

3494

649

Whether the plaintiffs have considered commencing litigation against Sysco.

Refusal Justified

Unanswerable

Immaterial

Irrelevant

3504-3506

652

Were there any discussions between the representative plaintiffs and the class, or Denver Subs and the class about the continued involvement of GFS as a defendant in this lawsuit (from the beginning) and if there were, to produce all such communications, with appropriate redactions for any privileged communications.

Refusal Justified

Unanswerable

Immaterial

Irrelevant

I-2

Provide particulars of the Cost of Sales entry in the Financial Statements for each corporation for each year produced, including the component expenses that make up the cost of sales booked in each year for each corporation.

For each year and for each corporation, advise whether labour, salaries, wages, management fees or similar expenses were booked to cost of sales, and whether those expenses were paid to Douglas Johnson or Tom Johnson. If so, provide the particulars of such these payments to Doug or Tom Johnson.

Provide particulars of the cost of food and supplies that were booked as cost of sales in each year for each corporation.

In respect of cost of sales, provide the actual total cost of food and other supplies for each corporation for each year of operation, expressed as a percentage (i.e. percentage of total food costs). Provide the supporting documents used to establish this percentage.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-4

In respect of the Statement of Earnings and Retained Earnings:

Explain the components of the advertising and promotion expense in 2002 and 2003, and to the extent such expenses were in excess of the 4% national advertising fund, what those expenses were for and why they were spent.

Explain the bank charges and interest line item. If this relates to a loan and interest on that loan, provide particulars of the loan and its terms, and produce any related loan documentation if available.

Explain the depreciation and amortization charges in 2002 and 2003. What was being depreciated and at what rate?

Explain the Dividends booked in 2003 and provide particulars of who received this dividend.

In respect of the Balance Sheet:

Explain the decrease in cash on hand from 2002 and 2003 and where that cash was allocated or transferred.

Explain the $50,502 due from related company. From what company was this due and for what reason was it to be paid to '987 Corp.? Produce any documents evidencing this transaction, including repayment terms.

Explain the approximate $100,000 decrease in liabilities from 2002 to 2003 and from where the $100,000 was received such that it could be used to pay down debt.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-5

In respect of the Statement of Earnings and Retained Earnings:

List and explain all of the factors believed to have caused the decrease in sales from $861,034 in 2003 to $704,417 in 2004.

If these factors include the opening of other Quiznos locations, advise which locations, when they opened and their proximity to store #2605.

Explain the increase in advertising and promotion charges in 2004 versus 2003, and to the extent such expenses were in excess of the 4% national advertising fund, what those expenses were for and why they were spent.

Explain the increase in accounting expenses.

Explain the near doubling of utilities and telephone charges.

In respect of the Balance Sheet:

Explain the decrease in cash on hand from 2003 to 2004, and where that cash was allocated or transferred.

Explain the $82,267 due from related company and the increase from $50,502 in 2003. To the extent there are additional documents evidencing this transaction that were not provided in response to question 3(e), above, produce same.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-6

In respect of the Statement of Loss and Retained Earnings:

List and explain all of the factors believed to have caused the decrease in sales from $704,417 in 2004 to $483,390 in 2005.

If these factors include the opening of other Quiznos locations, advise which locations, when they opened and their proximity to store #2605.

Explain the drastic decrease in accounting expenses from 2004 to 2005.

Explain and particularize what is included in General expenses and explain the fluctuations in this expense in the financial statements produced.

To the extent advertising and promotion expenses were in excess of the 4% national advertising fund, explain what those expenses were for and why they were spent.

In respect of the Balance Sheet:

Explain the decrease in cash on hand from 2004 to 2005, and where that cash was allocated or transferred.

Explain the $82,267 due from related company and why that amount remained constant from 2004 to 2005.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-7

In respect of the Statement of Loss and Retained Earnings:

List and explain all of the factors believed to have caused the decrease in sales from $483,390 in 2005 to $458,618 in 2006.

If these factors include the opening of other Quiznos locations, advise which locations, when they opened and their proximity to store #2605.

To the extent advertising and promotion expenses were in excess of the 4% national advertising fund, explain what those expenses were for and why they were spent.

Explain the decrease in bank charges and interest. To the extent this relates to a renegotiation of terms of a loan, provide details of the revised terms and produce any documentation evidencing that loan and the renegotiated terms.

Telephone charges in the amount of $3600 were booked in 2006. Explain the nature and components of these charges.

In respect of the Balance Sheet:

Explain the increase in cash on hand from 2005 to

2006, and from where that cash was received.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-8

In respect of the Statement of Loss and Retained Earnings:

List and explain all of the factors believed to have caused the decrease in sales from $458,618 in 2006 to $437,212 in 2007.

Explain why the Cost of Sales in 2007 are almost identical to the cost of sales in 2006 despite the decrease in sales.

If these factors include the opening of other Quiznos locations, advise which locations, when they opened and their proximity to store #2605.

Explain the increase in General Expenses from $3,619 in 2006 to $6,666 in 2007 and provide particulars.

In respect of the Balance Sheet:

Explain the decrease in cash on hand from 2006 to 2007, and where that cash was allocated or transferred

Explain the decrease in the Current Cash Asset from $3,763 in 2006 to $495 in 2007.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-9

In respect of the balance sheet:

Provide particulars of the $75,451 Due to Related Companies, including to whom the debt is owed and on what terms. Produce documents evidencing this liability and its terms.

Explain and provide particulars of the increase in Long Term Debt from $50,502 in 2003 to $251,247 in 2004.

In respect of the statement of loss and deficit:

To the extent advertising and promotion expenses were in excess of the 4% national advertising fund, explain what those expenses were for and why they were spent.

Explain and provide particulars of the $20,467 in General and administration expenses.

Explain and provide particulars of the $10,671 in Professional fees.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-10

In respect of the statement of loss and deficit:

List and explain all of the factors believed to have caused the increase in sales from 2004 to 2005.

Explain why the cost of sales booked in 2004 in CLA003752 is not the same amount booked for the same period in CLA002739. If the reason is because salaries and wages were listed as a separate line item in CLA003752, explain the shortfall when salaries and wages is added to cost of sales.

Advise whether Doug or Tom Johnson were paid salary and wages in any year by '249 Ontario Inc., and if so, in what year and in what amount.

Explain why repairs and maintenance for '249 Ontario Inc. in 2005 is $165 whereas the same category of expense in 2005 for '987 Ontario Corp. is $7,548 (see CLA005716). Provide particulars of what constitutes "repairs and expenses" for each corporation in each year of operation.

In respect of the balance sheet:

Provide the particulars of why the $75,451 Due to Related Companies increased to $97,267 in 2005, and produce documents evidencing this change.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-11

In respect of the statement of loss and deficit:

List and explain all of the factors believed to have caused the increase in sales from 2005 to 2006.

Compare CLA005710 to CLA005716. Explain and particularize the category of General expenses in each document, including an explanation and particulars of why general expenses in 2005 and 2006 are $1,137 and $3,619 for '987 Corp, and $15,088 and $25,617 for '249 Inc. in the corresponding years.

Explain why the General expenses for '249 Inc. increased by approximately $10,000 in 2006.

Produce any documentation evidencing the General Expenses for '249 Inc. for 2005 and 2006.

Explain and provide particulars of the utilities and phone charges in 2005 and 2006.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-12

In respect of the statement of loss and deficit:

Given that sales from 2006 to 2007 were almost identical, explain the $20,000 decrease in Cost of Sales and provide particulars.

If the cost of sales decreased because certain amounts were booked as salaries and wages, advise whether those amounts were paid to Tom or Doug Johnson and in what amounts.

Explain and provide particulars of the increase in rent.

Explain and provide particulars of the utilities and telephone charges.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-13

In respect of the balance sheet:

Advise where the cash asset in the amount of $65,679 was received from and specifically whether it was transferred from one of the other stores.

Provide particulars regarding the Asset entitled Corporate Reorganization Costs and why it is booked as an asset.

Explain and provide particulars regarding the $80,000 entitled Due to Shareholders, and produce any documentation evidencing this liability.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-14

In respect of the statement of loss and deficit:

To the extent advertising and promotion expenses were in excess of the 4% national advertising fund, explain what those expenses were for and why they were spent.

Explain the bank and interest charges expenses, including the terms of any bank loan. Produce any documentation supporting this expense, including any loan documentation.

Explain and particularize the General expenses and produce supporting documentation.

Advise to whom salaries and wages were paid. To the extent they were paid to Tom or Doug Johnson, advise of the amounts.

In respect of the balance sheet:

Explain and particularize the decrease in Current Cash Asset from $65,687 in 2004 to $953 in 2005. Produce supporting documentation if available.

Explain and particularize the amounts due from related company in the amount of $14,500, including the parties to and terms of any loan. Produce any supporting documentation, including any loan documents.

Advise whether the Long Term Debt in the amount of $154,000 in 2005 is for the restaurant build out. If not, advise what this liability is for and produce supporting documents.

Explain and particularize the liability for a Mortgage payable and produce any supporting documentation, including a copy of any mortgage document.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-15

In respect of the Statement of earnings and retained earnings:

List and explain all of the factors believed to have caused the increase in sales from 2005 to 2006.

Explain the decrease in advertising and promotion expenses. To the extent advertising and promotion expenses were in excess of the 4% national advertising fund, explain what those expenses were for and why they were spent.

Explain why bank charges and interest increased rather than decreased. If the terms or amount of a loan increased, or additional loans were advanced, provide supporting documentation.

Explain why the depreciation and amortization increased rather than decreased. Provide particulars and supporting documentation. Advise what equipment was purchased and its cost.

Explain how general expenses decreased from $15,631 in 2005 to $1,032 in 2006. Provide particulars and supporting documentation for these expenses.

Explain the increase in rent from $40,251 in 2005 to $54,694 in 2006, and provide supporting documentation.

Explain how salaries and wages decreased while sales increased. Advise if Doug or Tom Johnson received any salary or wages and if so, in what amounts.

Explain and provide particulars of the increased utility and phone costs.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-16

In respect of the Statement of earnings and retained earnings:

List and explain all of the factors believed to have caused the increase in sales from 2006 to 2007.

Explain and particularize how cost of sales decreased while sales increased.

Explain the fluctuation in General expenses from the year prior.

Explain the increase in salaries and wages. Advise if Doug or Tom Johnson received any salary or wages and if so, in what amounts.

Explain what the addition General Expenses were that increased the total from $1,032 in 2006 to $7,820 in 2007.

In respect of the balance sheet, explain the decrease in amount due to shareholders, to whom or what entity that amount was paid to, and produce any documents evidencing the transfer.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-17

The first full paragraph on page 2 of the letter states 'We believe that we have a right to price reductions". Advise of the source of that right and Mr. Johnson's understanding of the scope and extent of the price reductions he had a right to receive.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-18

Who is Susan Graham?

Make inquiries of Tom Johnson and ask for his recollection of this email and what Ms. Graham was referring to when she said "we all know what Quiznos corporate is all about."

Advise of your understanding of what she meant by "we all know what Quiznos corporate is all about."

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-19

Produce the referenced attachments Canada Scorecard 2-12-06.pdf and Scorecard Canada 12-25-05.pdf.

Do you agree with Mr. MacDonald's statement that "a large percentage of franchisees simply punch in the exact same number every week." If you do not agree, explain what you do not agree with and why.

What was your practice in reporting your blast fax data? Provide supporting documentation if available.

Advise of any response to Mr. MacDonald's email and produce any such document.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-20

This email string refers to concerns over the quality of chicken in British Columbia in and around March 2008. Were you experiencing similar quality issues with chicken at your franchises in Ontario? Produce any documentation that demonstrates this concern or evidence of customer complaints. Did you perform any price comparison with the new chicken product, either against a similar product of one that in your opinion was of higher quality? If so, produce those comparisons.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-33

Produce documents supporting your calculations of food costs inCLA003982.

Question Withdrawn

I-37

Are there other methods to measure actual food costs other than from information provided directly by franchisees? If so, what are those methods?

Did you respond to Ms. Warner's offer to "get set up on the planner"?

Question Withdrawn

I-43

Produce any documentation evidencing that: (i) the "meat is grisly"; (ii) "turns green often within 24 hours of slicing"; (iii) is "smelly"; and/or (iv) arrives in "bloated bags".

I-49

Are there any sources of knowledge, information and belief as to the quality of the chicken aside from your personal opinion and the opinion of other franchisees? If there are, provide particulars.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-54

Produce whatever information you have to support the allegation that the quality of chicken "appears to be down". Produce particulars of the allegation that as a result of lower quality and larger packages of chicken, Quizno's profits increased. Produce financial and documents relating to this allegation.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-58

Provide particulars of the 60% of Quiznos that were failing in or about October 2008.

Produce the knowledge, information and belief you rely upon to support the conclusion that those franchises were "failing".

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

MAY

Q. No.

Pg.

Question

Disposition by the Court

23

7

To adopt the answers to the questions that were asked of Edward May during cross-examinations for the motion certification motion for this action and to agree to have the answers apply as if they were asked and answered in the examination for discovery.

Answer Required

50

11

Produce the entire end of year financial statements for the 723 entity that owned the Downtown location, the plaintiff 724, and 129 entity that owned the Market Square location

Question Withdrawn

81

17

To review Mr. May’s records and produce any documentation that he has that evidences the sale of the Adelaide and Yonge location

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

271

52-53

To advise of what is under the redacted portion of the e-mail string between Mr. May and Douglas Johnson ending November 11, 2006 (CLA005419). Specifically, particularity including to whom and from whom and the subject matter of the information that has been redacted, or to advise with sufficient particularity as to why that portion of the e-mail string is redacted.

Adjourned

I-1

Our review indicates that Mr. May has produced the following financial statements: CLA002505, CLA003895, CLA002803, CLA002892, CLA002990, CLA003109, CLA003228, CLA003337, CLA003437, CLA003481, CLA003700, CLA003837, CLA003450, CLA003482, CLA003701, CLA005862, CLA003975, CLA004282, CLA004416, CLA004595, CLA004798, CLA004965, CLA005133, CLA005323, CLA005875, CLA003861, CLA003976, CLA004128, CLA004285, CLA004417, CLA004596, CLA004799, CLA004966, CLA005134, CLA005324, CLA006008, CLA006189, CLA006347, CLA006512, CLA006785, CLA006879, CLA007088, CLA006009, CLA006190, CLA006348, CLA000892, CLA000912, CLA001179, CLA001535, CLA002486, CLA003869, CLA005863, CLA002498, CLA003890, CLA005836, CLA006011, CLA006012, CLA006195, CLA006196, CLA006357, CLA006358, CLA006532, CLA006533, CLA006796, CLA006797, CLA006883, CLA006884, CLA007092, CLA007093, CLA005838, and CLA005839.

Produce all financial statements not yet produced, audited and unaudited, for 2038724 Ontario Inc., 1293292 Ontario Inc. and 2038723 Ontario Inc., since the commencement of operations until the present day.

To the extent additional financial statements are not in the possession, power or control of Mr. May, make all necessary inquiries, including of George Thian and of Miles & Roma, to locate any additional financial statements and working papers and, if located, to produce them.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-2

Provide particulars of the Cost of Sales entry in the Financial Statements for each corporation for each year produced, including the component expenses that make up the cost of sales booked in each year for each corporation.

For each year and for each corporation, advise whether labour, salaries, wages, management fees or similar expenses were booked to cost of sales, and whether those expenses were paid to Eddie May or George Thian. If so, provide the particulars of such these payments to Eddie May or George Thian.

Provide particulars of the cost of food and supplies that were booked as cost of sales in each year for each corporation.

In respect of cost of sales, provide the actual total cost of food and other supplies for each corporation for each year of operation, expressed as a percentage (i.e. percentage of total food costs). Provide the supporting documents used to establish this percentage.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-3

Monthly Balance Sheets and Income Statements have been produced for some of the corporations in some of the months of operations. See for example (CLA005838 and CLA005839). Provide the following monthly balance sheets and income statements, or advise where they are located in the productions:

For 1293292 Ontario Inc., no monthly balance sheets or income statements have been produced or identified in the productions for any month of operation. Produce all monthly balance sheets or income statements for each month in each year of operation

For 2038724 Ontario Ltd.,:

produce or identify in the productions the monthly balance sheets for January and February 2005, February, October and November 2006, and August, September, October, November and December 2007;

produce or identify in the productions the monthly income statements for January — August 2005, October, November and December 2006, and April — December 2007.

produce all monthly balance sheets or income statements for each month in each year of operation other than 2005, 2006 and 2007.

For 2038723 Ontario Inc.:

No monthly balance sheets or income statements have been produced or identified for any year aside from 2007. Produce all monthly balance sheets or income statements for each month in each year of operation other than 2007.

Produce or identify in the productions the monthly balance sheets and income statements for February and August —December 2007.

To the extent these documents are not in the possession, power and control of Mr. May, make such inquiries as are necessary of Mr. Thian and/or Miles & Roma or such other accountant, company or person to acquire these documents, and produce them.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-4

In respect of the Balance Sheet:

Explain what intangible assets make up "Intangibles" for a value of $17,800.

In respect of the Statement of Loss:

Provide particulars of "professional fees" in the Operating Expenses category.

Provide particulars of "miscellaneous" in the Operating Expenses category.

In respect of the Statement of Cash Flow:

Explain the $44,746 due to a related company. From what company was this received? Produce any documents evidencing this transaction, including repayment terms.

Explain what assets were purchased for $28,729 under the Investing item.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-5

In respect of the Balance Sheet:

Explain the increase of cash on hand from $0 in 2004 to $37,559 in 2005, and where this money came from.

Provide particulars of the restaurant and office equipment was purchased between 2004 and 2005.

Provide particulars of what leasehold improvements were made for $59,422.

Explain the purposes for which a bank loan of $49,803 was taken on in 2005. Produce any documents evidencing this transaction, including repayment terms.

Explain what $30,600 of the bank loan was used for in 2005.

Explain why the Long Term Liability "due to related companies" increased from $44,746 in 2004 to $210,303 in 2005. From what company was this received? Produce any documents evidencing this transaction, including repayment terms.

In respect of the Statement of Loss:.

Did direct wages include wages for Eddie May and/or George Thian? If so, advise of the amount paid in salary or wages to both.

Advise why the interest, bank charges, credit card fees and lease payments line and increased from $661 in 2004 to $16,927 in 2005.

Explain and provide particulars of the $36,698 in occupancy costs.

Advise whether the "Advertising fees paid to licensor" are fees paid in respect of the 4% national advertising fund.

Provide particulars of the $6,058 spent on "other advertising and promotion" and explain why this expenditure was made.

In respect of the Statement of Cash Flow:

Explain why financing due to related companies increased from $44,746 in 2004 to $165,557 in 2005. From what company was this received? Produce any documents evidencing this transaction, including repayment terms.

Explain the 'Loan advances- net of repayments' line and why it increased from $0 in 2004 to $80,403 in 2005.

Explain the increase in purchased assets under the Investing line from $28,729 in 2004 to $168,791 in 2005.

Utilities and telephone charges in the amount of $17,906 were booked in 2005. Explain the nature and components of these charges.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-6

In respect of the Balance Sheet:

Explain the $229,632.73 due to Quiznos Market. Provide any documents evidencing this loan and its terms.

Provide particulars of the $89,295.66 Bank Loan including documents evidencing this loan and its terms.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-7

Explain the increase of approximately $40,000 to leasehold improvements. What improvements were made to account for this asset?

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-8

Explain the approximate $17,000 decrease in the leasehold improvements asset and provide particulars of the decrease from May to June.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-9

In respect of the Balance Sheet:

Explain the decrease in Intangible assets from $14,833 in 2005 to $250 in 2006.

Explain the decrease in the liability for "current portion of bank loan" from $30,600 in 2005 to $8,000 in 2006.

In respect of the Statement of Loss:

Advise whether any of the direct wages in 2005 and 2006, $75,570 and $69,036 respectively, were paid to Mr. May and/or Mr. Thian. If yes, advise of the amounts paid to them.

Explain the increase in occupancy costs from $36,698 in 2005 to $44,245 in 2006.

In respect of the Statement of Cash Flow:

On page 2 of CLA003837 there appears to be reference to a loan from Market Square in the amount of $225, 412.92. Explain the relationship between this loan amount and the "Financing" line item on page 5 of CLA005862, Statement of Cash Flow, and the 2005 loan advances of $165,557.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-10

In respect of the Balance Sheet:

At the bottom of the page there is a reference to "see accompanying notes". Produce these notes and any notes related to other financial statements that have not been produced.

Provide particulars of the $40,000 in "Marketable Securities". Explain what the security is, how it was acquired, any documents evidencing its acquisition and/or existence, and its terms.

Explain the "retained earnings"of $56,542. Provide particulars of where these earnings were allocated and who retained them.

Explain the increase in cash on hand from 1999 to 2000 and where that money came from.

In respect of the Statement of Earnings:

Advise whether any of the salaries and benefits in 1999 and 2000, $77,371 and $110,383 respectively, were paid to Mr. May and/or Mr. Thian. If yes, advise of the amount paid to them.

Do you agree that food waste and spoilage of $431 is insignificant?

Explain what is included in promotion and advertising expenses and why these increased from $9,629 in 1999 to $21,604 in 2000. To the extent advertising and promotion expenses were in excess of the 4% national advertising fund, explain what those expenses were for and why they were spent.

Explain and particularize the "Meals and entertainment" expenses for 1999 and 2000.

Explain and particularize the "Driver reimbursement" expense for 2000.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-11

In respect of the Balance Sheet:

Explain the increase in cash on hand from $97,737 in 2000 to $160,396 in 2001 and where that cash came from.

Explain the prepaid expenses and sundry line under Current Assets, including how the figure was calculated and its increase from $5,738 in 2000 to $19,505 in 2001.

Advise whether the "statement attached" referred to is the "Note to Financial Statements" at page 6. If not, produce the statement referenced. In respect of the Statement of Income and Retained Earnings:

Advise whether any of the $162,959 in salary was paid to Mr. May and/or Mr. Thian. If so, how much was paid to each?

Explain the increase in food waste and spoilage from 2000 to $3,459.

To the best of your recollection, list the products that contributed most significantly to this food waste and spoilage expense and estimate their relative percentage of total waste.

Explain the decrease in 'other advertising and promotion' expenses from $7,156 in 2000 to $3,534 in 2001, and particularize these expenses.

Explain and provide particulars of the $3,860 food delivery expense.

Explain and provide particulars of the $3,147 "Meals and entertainment" expense.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-12

In respect of the Balance Sheet:

Explain the increase in cash on hand from $160,396 in 2001 to $274,463 in 2002 and where that cash came from.

Explain the decrease in prepaid expenses and sundry and how that figure was calculated.

Explain the line under Capital Assets entitled 'bank loan- current portion', including the increase in this amount since 2001.

Advise whether the approximate $7,000 paid back to shareholders was paid to Mr. May, Mr. Thian or both, and in what form. Produce documentation evidencing this repayment.

In respect of the Statement of Income and Retained Earnings:

Explain the increase in direct wages and benefits from 2001, including how the increase was distributed among employees and directors.

Explain the increase in occupancy costs from 2001.

Explain what equipment was being rented for a total of $19,357 in 2002

In respect of the Note to the Financial Statements

Provide particulars in respect of the service vehicle referenced, including the lease documentation, make, model, year of vehicle, primary user, and particulars of how it was used for the business.

Advise how many years this service vehicle was used, and where it was booked as an expense.

Advise whether this service vehicle was used for more than one franchise, and if so, indicate where the expenditure was allocated for each company.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-13

In respect of the Balance Sheet:

With $489,541 in cash on hand and retained earnings of $448,646 as at December, 31,2003, would you agree this franchise had been extremely successful to that point in time? If not, explain what you disagree with and why.

Explain why it was necessary to increase 'advances from shareholders, unsecured and without interest' from $90,710 in 2002 to $138,576 in 2003, given the success of the franchise, and what this money was spent on.

Do you agree that your "food, beverage and supplies purchases" in 2003 were approximately 32.4% of net sales? If not, explain what you do not agree with and advise how you would calculate food, beverage and supplies costs as a % in 2003.

Do you agree that your "food, beverage and supplies purchases" decreased in 2003 from 33.9% in 2002? If not, explain what you do not agree with and why.

In respect of the Statement of Income and Retained Earnings:

Particularize all the factors that in your opinion contributed to a decrease in sales from $837,114 in

2002 to $485,742 in 2003.

Explain which of these factors you believe were the most significant and why.

Explain the decrease in direct wages and benefits from 2002 to 2003. Advise whether Mr. May or Mr.

Thian received any of these wages and in what amount.

Explain the substantial decrease in occupancy costs from 2002 to 2003.

Explain and provide particulars of the $7,145 food delivery expense.

Explain and provide particulars of the $1,586 "Meals and entertainment" expense.

Explain the Dividends booked in 2003 and provide particulars of who received this dividend

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-14

In respect of the Balance Sheet:

Explain the decrease in cash on hand and investments from 2003 to 2004 and where that cash was allocated or transferred.

Explain the increase in the amount of money due from related companies from $44,500 in 2003 to $278,560 in 2004, including what companies it is due from. Produce any documents evidencing this transaction, including repayment terms.

Explain what leasehold improvements were made for $106,614. Provide particulars of the transactions and any supporting documentation.

Explain what restaurant and office equipment was purchased in 2004. Provide particulars of the transactions and any supporting documentation.

Explain why a bank loan in the amount of $97,002 was borrowed and what this amount was used for. Produce the loan documentation and terms.

In respect of the Statement of Income and Retained Earnings:

List the factors that, in your opinion, contributed to the increase in sales in 2004 from $485,742 to

$644,754.

Explain the increase in direct wages and benefits from $112,390 in 2003 to $183,984 in 2004. Advise whether Mr. May or Mr. Thian received any of these wages and in what amount.

Explain and particularize why accounting and legal expenses increased by more than $10,000 from

2003 to 2004.

Explain and particularize why general, office and insurance expenses increased from $2,830 in 2003 to $9,916 in 2004.

Explain and particularize the increase in miscellaneous expenses to $12,293 in 2004, what these expenses included and why they decreased to$2,034 in 2005.

Explain and particularize the decrease in occupancy expenses from $49,131 in 2003 to $8,982 in 2004.

Explain and particularize why 'other advertising and promotion' expenses increased from 2003 to $13,008 in 2004 and what the particulars of those expenses were.

Explain and particularize the large increase in utilities expenses from 2003 to 2004.

In respect of the Statement of Cash Flow

Explain and particularize how net income decreased from $266,493 in 2003 to $19,091 in 2004, despite a $160,000 increase in revenues.

Explain and particularize the large increase in prepaid expenses from ($11,413) in 2003 to $25,292 in 2004.

Explain why a loan advance of $127,602 was taken in 2004, and from where it was taken. Produce any loan documents.

Explain how cash and investments went from $489,541 at the beginning of 2004 to $240,939 at the end of 2004, and where and how that money was reallocated or transferred.

Explain and particularize the assets purchased in 2004 for $217,298.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-15

In respect of the Balance Sheet:

Explain the decrease in cash on hand and investments from 2004 to 2005 and where that cash was allocated or transferred.

Explain the line 'due from related companies', under Assets. Advise whether this was a loan, and what company it is due from. Produce any documents evidencing this transaction, including repayment terms.

In respect of the Statement of Loss:

List the factors, in your opinion, that contributed to the drop in revenues from $644,754 in 2004 to $453,742 in 2005.

Advise whether Mr. May or Mr. Thian received any of direct wages and benefits of $165,714 in 2005 and if so in what amounts.

Explain the increase in occupancy costs from 2004 to 2005.

Explain why the utilities and telephone expenses increased to $16,208 in 2005 and what the nature of these expenses were.

In respect of the Statement of Cash Flow:

Explain the $3000 due from shareholders in 2005. Produce any documents evidencing this transaction, including repayment terms.

Explain what company owed $192,705, whether this was a loan, and if so, what the terms of repayment were. Produce supporting loan documents.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-16

In respect of the Statement of Loss:

Advise whether Mr. May or Mr. Thian received any of direct wages and benefits and if so in what amounts.

Explain why occupancy costs increased from $17,723 in 2005 to $33,283 in 2006.

In respect of the Statement of Cash Flow:

Explain how a repayment of almost $10,000 was paid on the loan under the item Financing and where this money came from.

Explain where the $187,118 paid in 2006, towards the $192,705 that was 'due from related in companies' in 2005, was transferred or allocated.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-17

In respect of the Balance Sheet:

Provide particulars of the leasehold improvements that were made in 2004 for $136,699.

Provide particulars of the restaurant or office equipment was purchased in 2004 for $123,336.

Provide particulars of the Intangible assets owned in 2004.

Provide particulars of the Shareholders Deficit of $74,005.

In respect of the Statement of Loss:

Advise whether Mr. May or Mr. Thian received a wage or salary and if so, how much.

Particularize the occupancy costs in the amount of $31,327.

In respect of the Statement of Cash Flow:

Explain what related company the $233,813 was

Explain what assets were purchased in 2004 for $282,283.

Do you agree this franchise was highly leveraged, with a bank loan of over $100,000, a loan from a related company of $230,000, and a shareholder's deficit of $74,003 booked? If not, explain what you disagree with and why.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-18

In respect of the Balance Sheet:

Explain the increase in the liability due to related companies under Long Term Liabilities, including to which company this money was due. Produce any documents evidencing this transaction, including repayment terms.

Explain how the Shareholders Deficit increased from $74,005 in 2004 to $163,415 in 2005.

In respect of the Statement of Loss:

Explain and provide particulars of the occupancy costs increase to $46,386.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

I-19

In respect of the Statement of Loss:

The food, beverage and supply purchases, as a percentage of revenues, decreased dramatically from 2005 to 2006. Can you explain this decrease? List all of the factors you believe contributed to this decrease and provide supporting documentation or particulars, where available.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or uncommon

Disproportionate

SOMMERS

Q. No.

Pg.

Question

Disposition by the Court

54

15

Advise if there been any change to the corporate structure of the entities listed on document Q2000590 since the time that chart was created.

Refusal Withdrawn

62

16

Starting with January 1, 2003, disclose

(a) which locations were added to the Canadian Quiznos system;

(b) which locations left the system;

(c) which locations changed ownership; and

(d) the identity and last known contact information for the franchisees.

Refusal Justified

Immaterial

Irrelevant

Untimely

Disproportionate

108

24

Make inquiries to the executive team to determine why the functions of CFD were transferred to AFD in 2009.

Refusal Justified

Immaterial

Irrelevant

Untimely

115

25-27

Where the functions, roles and responsibilities of QCRC changed over time, identify the time period that each of these functions, roles and responsibilities applied.

Refusal Justified

Immaterial

Irrelevant

157

36

From January 1, 2003 and following, identify which employees of the Quiznos Master LLC had responsibilities in respect of the Canadian franchise system.

Refusal Withdrawn

158

36

From January 1, 2003 and following, which employees of the Quiz-Can LLC had responsibilities in respect of the Canadian franchise system?

Refusal Withdrawn

180

24

To make an inquiry of the Executive team and advise about why the functions of CFD were transferred to American Food Distribution Company (AFD) in 2009.

Refusal Justified

Immaterial

Irrelevant

Untimely

577

111

In making inquiries to the purchasing team regarding the RFP for Griffith Laboratories, identify to whom the RFP was sent, the responses, and any analysis that was made.

Refusal Justified

Irrelevant

Idiosyncratic or Uncommon

755

151

Was it provided for in this distribution agreement that the distributor would be paying amounts to Quiznos Canada Corporation received from the franchisee?

Refusal Justified

Unanswerable

819

165

To the extent that CFD did not exist and therefore did not provide any services to the franchisees prior to February 2003, explain the components of the price listed on the pricing sheet.

Refusal Justified

Unanswerable

822

166

In reference to the above question, did those components of pricing change as of February 1, 2003?

Refusal Justified

Unanswerable

1037

203

Identify the occasions on which there was a change in the order guide price solely as a result of the change of the promo fee.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or Uncommon

Disproportionate

1078

210

If the price for Prime Rib Black Angus was chosen using the higher price, advise why that was chosen.

Question Withdrawn

1129

219

Advise in what way the prices for the products listed on the February 1, 2003 pricing has changed from previous lists or previous pricing.

Refusal Justified

Unanswerable

Irrelevant

Idiosyncratic or Uncommon

Disproportionate

1132

220

Provide the reasons for choosing GFS in response to the RFP.

Refusal Withdrawn

1163

225

Advise whether there is a particular Quiznos entity that Quiznos considers has the specific proprietary interest in the proprietary supplies sold to the Canadian system.

Refusal Justified

Immaterial

Irrelevant

1163

226

If the entity with the specific proprietary interest in Quiznos’ proprietary supplies has changed over time, identify how it has changed.

Refusal Justified

Immaterial

Irrelevant

1174

228

Provide all the information required to be able to identify which products are proprietary and which ones are not proprietary.

Refusal Justified

Unanswerable

Idiosyncratic or Uncommon

Disproportionate

1178

229

Is whether a product was procured by Quiznos through an arrangement by Quiznos with the manufacturer or whether it was procured by GFS one way to distinguish between proprietary and non-proprietary products?

Refusal Justified

Unanswerable

Idiosyncratic or Uncommon

Disproportionate

1179

230

Is there a distinction to be made that proprietary products are those which Quiznos procured itself from manufacturers as between non-proprietary products which were secured by the distributor from suppliers for use in the Canadian system?

Refusal Justified

Unanswerable

Idiosyncratic or Uncommon

Disproportionate

1327

259

Produce the CFD pro forma numbers referred to in the email from Dave Deal to Bob Viviano dated January 11, 2006 [Q2001139].

Refusal Justified

Immaterial

Irrelevant

1349

265

Produce the RFP which replaced the distribution agreement that concluded at the end of 2010.

Refusal Justified

Immaterial

Irrelevant

Untimely

Disproportionate

1382

271

To allow deponent to answer whether he is familiar with the settlement agreement and release of claims (document Q20006945)

Adjourned

1383

271

To allow deponent to answer whether the settlement agreement and release of claims document (document Q20006945) is signed or any other questions pertaining to this document

Adjourned

1389

272

Advise what the consideration was for Amendment No. 1 [GFS001960] .

Question Withdrawn

1406

277

To provide the attachment “performance indicators scorecard review” to document GFS004803 (agenda called Quiznos GFS Renew.)

Question Withdrawn

1413

277

Produce the distribution contract that was awarded subsequently to the one seen in 2006 for Canada.

Refusal Justified

Immaterial

Irrelevant

Untimely

1419

278

Advise whether or not Mr. Sommers ever determined if savings were passed onto franchisees by looking at the pricing matrix.

Refusal Justified

Unanswerable

Immaterial

Irrelevant

Untimely

1825

353

In terms of the possession of goods, at any time in the supply chain process does Quiznos or any of its entities actually obtain possession of the goods that are used in the distribution system in Canada?

Refusal Justified

Unanswerable

Immaterial

Irrelevant

Untimely

2074

393

Have you ever been asked by anyone at Quiznos or have you done it on your own to make any assessment of the claims that are being made in the class action?

Question Withdrawn

2076

393

Have you performed any analysis of the cost of the settlement agreement to Quiznos?

Question Withdrawn

2077

394

Have you ever given evidence in any other proceeding addressing the matter of the Quiznos food supply chain?

Question Withdrawn

2078

394

Is one of your responsibilities at Quiznos to provide evidence on matters relating to the supply chain of Quiznos in legal proceedings?

Question Withdrawn

I-3

At the times the decision was being considered and made to reduce CFD’s involvement in the Canadian supply chain and increase AFD’s involvement, were there any communications in writing exchanged between or among any Quiznos personnel discussing or explaining the reasons for this action? If so, produce.

Refusal Justified

Immaterial

Irrelevant

Untimely

I-4

In regards to column “H” on the 2007 pricing sheet (Q2010530), what does the FOB amount represent? Does this amount include any manufacturers’ rebates and allowances?

Answer Required

I-4

How does the 2007 pricing sheet (Q2010530) correspond to the pricing sheets provided for previous years (See for example, document Q2000434).

Question Withdrawn

I-6

What rebates were CFD receiving after the implementation of the 2006 agreement with GFS?

Refusal Justified

Unanswerable

Irrelevant

Disproportionate

I-6

What rebates were AFD receiving after the implementation of the 2006 agreement with GFS in respect of the Canadian supply chain?

Refusal Justified Immaterial

Irrelevant

I-7

Produce all documents related to work done on [the “Canada Food Cost Model” referred to in this document] including the completed model, if completed.

Refusal Justified

Irrelevant

Disproportionate

I-12

Produce all “actual analyses” for CFD from the period commencing January, 2003 to the extent prepared.

Refusal Justified

Unanswerable

Untimely

Disproportionate

I-13

Have all sales trend reports been produced? Please identify them in the productions or produce them.

Refusal Justified

Irrelevant

Untimely

Disproportionate

I-14

Produce all CFD & FO Profitability Summaries.

Refusal Justified

Irrelevant

Untimely

Disproportionate

I-14

What is this a chart of?

Why are many columns on this spreadsheet marked with “#NA” or “#VALUE”?

If a fully completed spreadsheet exists, identify it in the productions or produce it.

Refusal Justified

Untimely

I-20

Provide copies of all presentations made for or distributed at BOM Meetings providing information specific to Quiznos’ Canadian system relating to supply chain and profitability.

Refusal Justified

Irrelevant

Untimely

Disproportionate

I-24

Produce all GP analyses by product on a gross basis.

Refusal Justified

Untimely

Idiosyncratic or uncommon

Disproportionate

I-31

What was the legal settlement agreement referred to in this document?

Adjourned

I-36

Produce the raw data

Question Withdrawn

I-38

Was there an original test to which this was an update test? If so, produce previous test.

Who gave this presentation to whom? Produce the source documents for this update including any underlying reports.

Refusal Justified

Immaterial

Irrelevant

I-48

Is it correct that Quiznos has profitability analyses for Canadian franchisees with food profitability analyses? Produce all such analyses

Refusal Justified

Irrelevant

Untimely

Idiosyncratic or uncommon

Disproportionate

I-55

Produce distribution gross profit analyses for Canada for each year commencing 2003.

Produce distribution net profit analysis for Canada for each year commencing 2003.

Refusal Justified

Immaterial

Irrelevant

Untimely

Disproportionate

I-57

What were the actual and theoretical waste and rebate figures for Canada?

Refusal Justified

Unanswerable

Irrelevant

Disproportionate

I-60

Are the figures provided in GFS004619 those that have been redacted from GFS004618? If not, please provide Quiznos’ copy of GFS004618.

What information was used to compile these “ballpark figures”?

Refusal Justified

Untimely

I-61

What accounts for the range of AFD markups on various Coke products?

How did AFD determine its entitlement on Coke products sold to Canadian franchisees.

To whom was the distribution markup paid on Coke products? When did this practice begin?

Refusal Justified

Irrelevant

Untimely

I-70

Are there any agreements or other documents that refer to or explain this practice [CFD and AFD’s contributing profits to the advertising fund]?

Refusal Justified

Immaterial

Irrelevant

Untimely

Disproportionate

I-72

Who prepared these speaking notes?

Question Withdrawn

I-74

What analysis, if any, was made of the cost to Quiznos of the settlement, either individually or collectively? Produce any such analysis.

How much have the non-settling franchisees paid for Coke from and after the implementation of the settlement, on an individual basis?

How much has Quiznos received from the sale of Coke, from and after the implementation of the settlement, broken down by store number and collectively including on a small BIB basis.

Refusal Justified

Irrelevant

I-77

Was the response considered? If so, by whom?

What, if any, analysis was made of the response?

Produce any such analysis, or advise of same if not in writing

Question Withdrawn

I-80

Produce all forecasting models for and after the period commencing January 1, 2003, in respect to the Canadian system.

Refusal Justified

Unanswerable

Immaterial

Irrelevant

Untimely

Disproportionate

I-84

What was the gross margin projection related to Canada?

Refusal Justified

Unanswerable

Immaterial

Irrelevant

Untimely

Disproportionate

I-84

What is the source for referencing AFD’s gross margin projection?

What does “Pepsi/Contra Revenue” refer to?

Refusal Justified

Immaterial

Irrelevant

I-85

See page Q2011468/4: What were “GFS Legal Issues”?

Question Withdrawn

I-87

Provide all documents related to this database to the extent it provides information relating to COGS to Canada and profitability.

Refusal Justified

Unanswerable

Immaterial

Irrelevant

Untimely

Disproportionate

I-89

Produce data for all years commencing 2003 related to Canada.

Refusal Justified

Unanswerable

Irrelevant

Untimely

Disproportionate

I-90

Produce CFD F&P% Analysis for all years commencing 2003.

Refusal Justified

Irrelevant

Untimely

Disproportionate

I-93

Produce all spreadsheets containing information on sales trends since January 2003 on an annual basis.

Refusal Justified

Irrelevant

Untimely

Disproportionate

I-94

Produce for all years commencing January 1, 2003.

Refusal Justified

Untimely

Disproportionate

I-97

Produce all QCE monthly investor financial updates.

Refusal Justified

Immaterial

Irrelevant

I-98

How many other customer complaints were received in the system in the three years prior to October 2007 relating to under-portioning? What action was taken in respect of such complaints in relation to the franchisees involved, if any?

Question Withdrawn

I-99

From and after January 1, 2003, on an annual basis, provide documentation providing the following information in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) Specific products and quantities of those products sold to the Canadian franchisees individually and collectively, identifying supplier/manufacturer;

(b) Prices paid by the Canadian franchisees for those products individually and collectively;

(c) Cost of those goods as paid to the manufacturer and supplier;

(d) Rebates, volume allowances, volume discounts, or other soft dollars paid, received, or credited to any Quiznos’ entity; identify amounts, source of funds/credit, and recipient;

(e) Actual distributor markups received by the distributor on such goods;

(f) Markups, sourcing fees, “promo”, or other amounts received by Quiznos (identifying the entity) from the supply of such goods;

(g) Documentation informing as to the extent to which any such incentive payments were passed along to the Canadian franchisees; and

(h) Gross percentage profit received by Quiznos on an annual basis from and after January 1, 2003, on a product by product basis.

Answer Required (i.e. Excel, if available)

I-100

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) Pricing sheets and monthly pricing advices as exchanged between Quiznos and GFS, every distribution centre, and subsequent distributors;

(b) The source date for the calculation or determination of FOB pricing contained in the pricing sheets; and

(c) All Order Guides in final form.

Answer Required

(i.e. Excel, if available)

I-101

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) All product specification sheets for products sold to the Canadian system, including specifications by volume;

(b) All supply and related agreements for products sold from and after January 1, 2003 to the Canadian franchise system.

Answer Required

(i.e. Excel, if available)

I-102

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) All benchmarking data used in the pricing process for products sold to the Canadian system.

Answer Required

(i.e. Excel, if available)

I-103

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) All analyses of CFD/AFD/Quiznos profitability relating to the Canadian franchise system in respect of product supply on an annual basis.

Answer Required

(i.e. Excel, if available)

I-104

Provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) All analyses of Canadian franchised store profitability on an individual, regional, or other collective basis from and after January 1, 2002.

Answer Required

(i.e. Excel, if available)

I-105

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) All product sales by franchisees individually and collectively, by product or menu item.

Answer Required

(i.e. Excel, if available)

I-106

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) All data pertaining to the Canadian franchise supply system that is contained on any of the databases identified during the examination for discovery of Matthew Sommers, including those identified as Pricing Matrix, Sequel Tables, and MAS.

Answer Required

(i.e. Excel, if available)

I-107

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) Listings in order of highest-to-lowest for each year commencing January 1, 2003, of dollar value and quantities of each product sold to the Canadian franchise system.

Answer Required

(i.e. Excel, if available)

I-108

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) Financial statements of operation, and other financial statements on a consolidated or unconsolidated basis relating to the Canadian supply chain, including in respect of CFD, AFD, or any other relevant Quiznos entity.

Answer Required

(i.e. Excel, if available)

I-109

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) Particulars of costs of operating Canadian supply chain annually.

Answer Required

(i.e. Excel, if available)

I-110

From and after January 1, 2003, provide in Excel format or other electronic searchable format where available from Quiznos’ systems:

(a) Any transfer pricing reports concerning products related to the Canadian supply chain.

Answer Required

(i.e. Excel, if available)

GREENWOOD

Q. No.

Pg. No.

Question

Disposition by the Court

187

45

Regarding the component of the Quiznos markup which formed part of the price of products, advise which Quiznos entity GFS remitted money to prior to the December 2002 agreement.

Refusal Justified

Immaterial

Irrelevant

Untimely

281

70

Inquire as to whether there was or is a list of products identifying non-proprietary products or the products that GFS and Quiznos agreed GFS could supply the stores from its own supplies, and produce it.

Refusal Justified

Immaterial

Irrelevant

Untimely

Disproportionate

369

92

Which part of the agreement between Quiznos and GFS that commenced in February 2003 did GFS understand to mean that it would be entitled to add a “promo” rebate or charge to the cost of goods?

Refusal Justified

Unanswerable

Irrelevant

371

93

Review document Q2000066 [TAB67] and let us know whether it is GFS’s position that these pricing sheets comprise the entirety of the pricing sheets for the period February through December of 2003.

Refusal Justified

Irrelevant

Disproportionate

380

96

Ask Eric Kristensen, and anyone else involved in the pricing of products for Quiznos, if they have any information about what products are being referred to in the pricing sheets for February 2003 through October 2003.

Also ask them if they have any other documentation or knowledge of documentation which provides pricing information for particular products which were used for purposes of preparation of the order guides.

Question Withdrawn

382

98

Provide last known addresses for GFS employees involved in creating Quiznos order guides.

Question Withdrawn

405

104

Make inquiries, including to Eric Kristensen, as to whether there is anything in the 2006 GFS-Quiznos distribution agreement that changed the components of pricing to franchisees in the order guide in any way from the December 2002 agreement.

Refusal Justified

Unanswerable

429

110

Produce any new distribution agreement covering the period subsequent to December 31, 2010.

Refusal Justified

Immaterial

Irrelevant

Untimely

433

111

Identify which franchisees were being undercharged, as referenced in section 4.13 of the 2006 agreement [CLA0009973] [TAB 68].

Question Withdrawn

435

111

Determine if any of those franchisees were notified at any time that they were undercharged.

Question Withdrawn

438

112

Advise whether the provision for GFS to add $2.50 Canadian to each delivery for a period of time was an additional delivery charge to the particular franchisees involved.

Question Withdrawn

443

113

Did GFS advise Quiznos that it would not be charging the additional $2.50?

Question Withdrawn

475

129

For non-proprietary products that GFS sold to customers other than Quiznos stores, provide the prices at which each of those products was sold by GFS to any purchaser other than the Quiznos stores, from 2003 on.

Refusal Justified

Immaterial

Irrelevant

Untimely

Disproportionate

476

129

For non-proprietary products that GFS sold to customers other than Quiznos stores, provide the terms of sale under which each of those products was sold by GFS to any purchaser other than the Quiznos stores, from 2003 on.

Refusal Justified

Immaterial

Irrelevant

Untimely

Disproportionate

477

129

To the extent that prices for non-proprietary products to customers other than Quiznos stores were affected by any particular consideration, advise what those considerations were.

Refusal Justified

Immaterial

Irrelevant

Untimely

Disproportionate

489

133

Through its association with Associated Food Distributors, has GFS received allowances or other volume rebates on non-proprietary products?

Refusal Justified

Irrelevant

490

134

For all non-proprietary products which were sold to the Quiznos stores in Canada since the beginning of 2003, provide information concerning the amount of volume rebates or allowances or other supplier money which GFS has received in respect of the purchases of those products by the Quiznos stores in Canada.

Refusal Justified

Untimely

Idiosyncratic or Uncommon

Disproportionate

494

135

Produce whatever information GFS has about street prices that were available in the marketplace for non-proprietary products from sources other than GFS commencing 2003.

Refusal Justified

Unanswerable

Untimely

Idiosyncratic or Uncommon

Disproportionate

505

141

How much money has GFS received from all sources since January of 2003 as a result of being a distributor for the Quiznos system in Canada?

Refusal Justified

Unanswerable

Irrelevant

Untimely

Disproportionate

506

141

What has been GFS’s growth in net profits since January 2003 as a result of being a distributor?

Refusal Justified

Unanswerable

Immaterial

Irrelevant

Untimely

Disproportionate

586

165

Commencing in 2003 what knowledge, information or belief does GFS have as to the amount of money which Quiznos or its related entities received from the sale by GFS of products to the Canadian system?

Refusal Justified

Unanswerable

Irrelevant

Untimely

668

184

Provide information regarding what facts GFS is relying upon to support the allegation that the markup referred to in paragraphs 10 and 27 of GFS’s statement of defence is commercially reasonable.

Answer Required

686

191

Provide the last known addresses of the individuals that were identified in the examination.

Question Withdrawn

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

2038724 ONTARIO LTD. and 2036250 ONTARIO INC.*

Plaintiffs

‑ and ‑

QUIZNO’S CANADA RESTAURANT CORPORATION, QUIZ-CAN LLC, THE QUIZNO’S MASTER LLC, CANADA FOOD DISTRIBUTION COMPANY, GORDON FOOD SERVICE, INC. and GFS CANADA COMPANY INC.

Defendants

REASONS FOR DECISION

Perell, J.

Released: November 21, 2012.