Court File and Parties

COURT FILE NO.: 06-CV-311034PD3
DATE: 20131112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert M. Astley, Plaintiff

AND:

J. Robert Verdun, Defendant

BEFORE: R. F. Goldstein J.

APPEARANCE:
Brian N. Radnoff and Amy P. Archer, for the Plaintiff

Mr. J. Robert Verdun, in person

ENDORSEMENT – refusals and undertakings motion

[1] Mr. Astley sued Mr. Verdun for defamation. After a trial before a jury he won and obtained a judgment for $650,000.00. He has been trying to collect his award of damages. On October 19, 2012, Mr. Verdun attended for an examination in aid of execution. He refused to answer a number of questions relating to his financial affairs, and those of his companion, Ms. Freund.

[2] Mr. Astley brought a motion for contempt relating to Mr. Verdun’s violation of an injunction granted by Madam Justice Chapnik and a motion to compel Mr. Verdun to answer undertakings. I have dealt with the contempt motion in separate reasons: Astley v. Verdun 2013 ONSC 6734.

[3] The motion to compel Mr. Verdun to answer the refusals and undertakings was heard at the same time as the contempt motion. There were originally 35 questions that Mr. Verdun refused. Some of those have been answered in whole or in part. My determination with respect to each of the outstanding questions is attached as Schedule “A” to these reasons. The question numbers refer to the question numbers in the Undertakings/Refusals chart prepared by Mr. Radnoff, counsel for Mr. Astley.

[4] Several of the questions relate to Mr. Verdun’s access to Ms. Freund’s bank and investment accounts. Mr. Verdun’s position is that he does not have access to Ms. Freund’s accounts and that he need not produce information that essentially belongs to a third party. I agree with that submission. In the absence of evidence that Mr. Verdun has fraudulently conveyed assets to Ms. Freund, or evidence that he has signing authority over her accounts, I am loath to order him to produce documents from accounts belonging to a non-party. Although the threshold is very high, Mr. Astley can bring a motion for production from a non-party: Rules of Civil Procedure, Rule 31.10; Attorney General of Ontario v. Stavro, 1995 3509 (ON CA), [1995] O.J. No. 3136, 26 O.R. (3d) 39 (C.A.). Accordingly, I decline to order that he answer those questions that require him to produce documents or provide information in relation to Ms. Freund’s accounts. On at least one question, however, where Mr. Verdun transferred money to one of Ms. Freund’s accounts, I order that he provide the particulars of the transfer (see Schedule “A”, question 27). That information is relevant and must be provided.

[5] Likewise, where Mr. Verdun has a credit card in his name I have ordered that questions be answered regardless of whether or not he is the primary account holder. Again, that is relevant and if there is a card in his name he should, presumably, be able to access the information. If there are cards where he is not the primary account holder and the institution refuses to release the information, Mr. Verdun is to provide details of all his attempts to obtain the information to counsel for Mr. Astley.

[6] Finally, Mr. Verdun has refused to produce the names of potential clients in Barbados on the grounds that they object to being identified. This answer is totally inadequate. A party cannot refuse to produce information simply because people with whom he does business do not want to be identified. For example, Mr. Verdun could not conceivably refuse to provide the name of his bank simply because the bank did not want to be identified. If that were the law, it would be all too easy for judgment debtors to hide assets from judgment creditors. Mr. Astley is entitled to this information. Any privacy issues relating to third parties can be dealt with by way of the implied undertaking rule. If Mr. Verdun has a particular client or potential who objects to identification, he must advise counsel for Mr. Astley immediately and may bring a motion for directions within ten days of receiving the objection from the client or potential client.

Time Limits

[7] Mr. Verdun has sixty days from the release of these Reasons to comply with the directions as set out in Schedule “A”. If an extension of time is required, he and Mr. Radnoff may contact may contact my assistant to arrange a time for a brief appearance.

Costs

[8] The parties have had mixed success on this motion. I would encourage them to agree on costs. If they are unable to do so, they may each submit a brief (no more than two pages) costs submission and a cost outline within 30 days of the release of this endorsement.

Goldstein J.

Date: November 12, 2013

Schedule “A” to Reasons Dated November 12, 2013

QUESTION

UNDERTAKING/REFUSAL

DETERMINATION

2

To advise if the account belonging to Ms. Freund, which he is currently allowed to assess, is a chequing account.

Mr. Verdun’s position is that he does not have access to Ms. Freund’s accounts but is aware that she has a chequing account. I decline to order Mr. Verdun to make production or answer the question.

3

To advise of the location of Ms. Freund’s bank for which the accounts that he is allowed to access are held.

I decline to order Mr. Verdun to make production or answer the question.

4

To advise of the number of transactions that he makes through Ms. Freund’s accounts and the dollar amounts of those transactions.

I decline to order Mr. Verdun to make production or answer the question.

5

To advise what other credit card payments Ms. Freund makes on his behalf from any of her credit card accounts other than the payments made on the American Express Aeroplan Plus card.

I decline to order Mr. Verdun to make production or answer the question.

8

To produce copies of all bank statemens for all accounts through which Ms. Freund makes any payments on his behalf including accounts where any money, income, or revenue on his behalf is deposited, for the last 5 years.

I decline to order Mr. Verdun to make production or answer the question.

9

To produce credit card statements for the last five years for any credit cards he has paid from Ms. Freund’s accounts or additional credit cards he has on Ms. Freund’s accounts.

I decline to order Mr. Verdun to make production or answer the question.

13

To make best efforts to locate and produce copies of the statements from his life insurance policies for the years 2007 through to 2011

Mr. Verdun indicates in his answers that partial information has been provided and the balance should be forthcoming from Sun Life. He is ordered to continue to make his best efforts to supply the information.

14

To provide the address for the leased premises in Barbados.

Mr. Verdun indicates that Ms. Freund holds the lease and she declines to provide the information. I decline to order Mr. Verdun to make production or answer the question.

15

To provide a copy of the letter from the landlord of the property in Barbados wherein the landlord committed to the rental rate for a period of one year.

I decline to order Mr. Verdun to make production or answer the question.

16

To advise of the monthly rent for the property in Barbados.

I decline to order Mr. Verdun to make production or answer the question.

20

To provide the names of his potential clients in Barbados for his consulting business in land development.

Mr. Verdun indicates that he has received no compensation from any client, and has only one client who has no objection to being identified. Mr. Verdun is to provide the names of all clients or potential clients in Barbados for his consulting business. By potential clients, I mean all persons from whom he has solicited business that may eventually result in compensation. If Mr. Verdun has a particular client or potential client who objects to identification, he must advise counsel for Mr. Astley immediately and may bring a motion for directions within ten days of receiving the objection from the client or potential client.

22

To advise of the Ms. Freund’s middle name.

I decline to order Mr. Verdun to make production or answer the question.

23

To advise how long Ms. Freund has been retired.

I decline to order Mr. Verdun to make production or answer the question.

24

To advise as to what pensions Ms. Freund receives.

I decline to order Mr. Verdun to make production or answer the question.

25

To advise if Ms. Freund has any investment accounts.

I decline to order Mr. Verdun to make production or answer the question.

27

To produce copies of Ms. Freud’s investment account statements from the date of the transaction wherein money from the sale of his shares were transferred to Ms. Freund’s investment account to the present time.

I decline to order Mr. Verdun to make production or answer the question. I order Mr. Verdun to provide particulars of any transfer of funds from the sale of shares transferred to Ms. Freund’s investment account, if he has not already done so.

31

To advise of the credit limits of any credit cards that he currently holds.

Mr. Verdun’s position is that Ms. Freund declines to disclose. If there are credit cards in Mr. Verdun’s name, he is ordered to disclose the credit limits regardless of whether he is the primary account holder or a supplementary account holder. If there are cards where he is not the primary account holder and the institution refuses to release the information, Mr. Verdun is to provide details of all his attempts to obtain the information to counsel for Mr. Astley.

32

To advise of the account numbers for each credit card he currently holds.

Mr. Verdun’s position is that Ms. Freund declines to disclose. If there are credit cards in Mr. Verdun’s name, he is ordered to disclose the account numbers regardless of whether he is the primary account holder or a supplementary account holder. If there are cards where he is not the primary account holder and the institution refuses to release the information, Mr. Verdun is to provide details of all his attempts to obtain the information to counsel for Mr. Astley.

34

To advise of what vacations, other than to Barbados, that he and Ms. Freund have been on in the past two years.

Mr. Verdun’s position is that Ms. Freund declines to disclose. Mr. Verdun’s peregrinations and travelling companions are within his personal knowledge. Mr. Astley is entitled to this information. Mr. Verdun is ordered to disclose all vacations he has taken in the two years prior to October 19, 2012 to places other than Barbados.