ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 2055/11
Date: 2014/02/19
B E T W E E N:
Dawn Hillman
Self-represented
Applicant
- and -
Ian Letchford
Gordon Wood, for the Respondent
Respondent
- and -
Canadian Imperial Bank of Commerce
Respondent on the Motion
Laila Karimi Hendry, for the Respondent on the Motion
Heard at Hamilton, Ontario: February 14, 2014
THE HONOURABLE JUSTICE J. R. HENDERSON
ENDORSEMENT ON MOTION
[1] This is a motion brought by the applicant Dawn Hillman for disclosure and productions from the respondent Ian Letchford, and from the “Irish Revenue”, the Canadian Imperial Bank of Commerce (“CIBC”), and other third parties.
[2] The motion is brought within the context of the applicant’s Application to set aside the final order of Justice Coats, dated February 6, 2006, and the minutes of settlement upon which the order was based.
[3] By way of background, I accept that the applicant and the respondent resided in a common-law relationship from approximately 1985 until February 1999. They have two children of their relationship.
[4] The respondent was an officer with CIBC throughout the relationship. During that period the respondent worked with CIBC in Canada, England, and Ireland. When the parties separated the parties were living in Ireland.
[5] After the parties separated, there was protracted litigation in both Ireland and Canada. The applicant’s claim in the Ontario courts included claims for child support, spousal support, and an interest in property. During the course of the litigation, in 2003, the respondent ceased to be an employee of CIBC.
[6] As the litigation progressed the applicant alleged that the respondent was not making full and complete disclosure of his assets and income. Therefore, the applicant, through counsel, brought a motion in this court returnable January 10, 2006, whereby the applicant requested further disclosure from the respondent and from his former employer, CIBC.
[7] By way of an order dated January 10, 2006, Justice Coats ordered, among other things, that the respondent was to provide documentation regarding his Irish pension and a CIBC severance package that was payable in Guernsey. Further, the order provided that the applicant was granted leave to examine a representative of CIBC with respect to the respondent’s severance and remuneration packages.
[8] Despite the aforementioned order, the applicant chose not to conduct the examination of a representative of CIBC. The respondent did provide some further disclosure. Then, the parties executed minutes of settlement on February 6, 2006, which were incorporated into the final order of Justice Coats dated the same day.
[9] In late 2011 the applicant commenced this Application to set aside the minutes of settlement and the final order. The primary ground for the Application is the respondent’s alleged failure to provide complete disclosure of his income and assets at the time of the settlement in February 2006.
[10] In my view, this Application is not frivolous. In particular, the applicant now has evidence that the respondent owned an interest in a Spanish corporation that owned a condominium apartment unit in Marbella, Spain, and that at some point the condominium unit was sold and the proceeds used to buy a townhouse in Marbella, Spain.
[11] Clearly, the respondent did not disclose his ownership in this Spanish corporation or in the Spanish properties prior to the settlement in 2006. In fact, in his examination under oath in September 2005 the respondent specifically denied that he owned any other property, denied that he owned any property in Spain, and denied that he held any interest in any corporation.
[12] In his Answer in the current proceeding the respondent acknowledges that there were two Spanish properties, but he submits that he was never the beneficial owner of these properties; rather, his wife Una Slevin was the beneficial owner of these properties. This is a triable issue.
[13] Further, the applicant alleges that the respondent failed to properly disclose his income tax liabilities. The letters that are included in the affidavits in this proceeding suggest that the respondent gave widely different statements as to his tax liabilities. Moreover, the respondent’s Irish income tax returns for the years 2003, 2004, 2005, and 2006 were never produced.
[14] Still further, the applicant has produced some information that would suggest that the respondent did not disclose the CIBC stock options that he held, and that were subsequently traded on the Alberta Stock Exchange. In addition, there is some evidence that the respondent did not disclose all details of his severance package from CIBC.
[15] In the applicant’s Notice of Motion she makes 19 separate requests for documentary disclosure and/or examinations. Unfortunately, many of these requests are extremely vague or are too broad to be the subject of any court order. That being said, I am convinced that some further disclosure is warranted.
[16] Regarding CIBC, the applicant’s main request is for a former employee of CIBC, Carmel Orr, to attend for an examination as to the respondent’s severance and remuneration. I find that request to be unreasonable as Ms. Orr is no longer an employee of CIBC and lives in Seattle. I am of the view that any disclosure required of CIBC can be dealt with by way of documentary disclosure, and thus there is no need to examine any officer of CIBC at this point.
[17] I accept that CIBC has diligently searched its records and has found some relevant documentation. Also, CIBC has determined that some of the other documentation requested by the applicant no longer exists. Therefore, to the extent that CIBC has relevant documentation in its possession with respect to the respondent’s severance and remuneration packages, I will make an order for disclosure, as detailed below.
[18] Regarding the “Irish Revenue”, in my view it would be inappropriate to order that specific questions be directed to the branch of the Irish government that deals with income tax issues. However, I will order that the respondent is to sign a consent and direction that would allow the applicant to obtain from the Irish government copies of the respondent’s 2003, 2004, 2005, and 2006 income tax returns and notices of assessment.
[19] There were only two requests for direct disclosure from the respondent, and both of those requests relate to the condominium apartment and the townhouse in Spain. The respondent has answered the applicant’s inquiry with respect to these properties in his responding affidavit, except that the respondent has not provided specific addresses for these properties. Therefore, I will order that the respondent is to provide specific addresses for the two properties in Marbella, Spain.
[20] Regarding disclosure from other third parties, I find that the only remaining third party that may have any relevant information is the estate agent, Miguel Volonnino, who works for Ivar Dahl Estate Agents in Marbella, Spain. Therefore, I will order that the respondent is to sign a consent and direction to allow Miguel Volonnino and/or Ivar Dahl Estate Agents to release information to the applicant.
[21] Paragraph 18 of the Notice of Motion is a request for an order that Pricewaterhouse Coopers in Toronto address “numerous anomalies” in the report of January 5, 2006. In my view this request is far too vague to be the subject of a court order. Moreover, it is clear that the applicant had this report in her possession prior to the execution of the minutes of settlement.
[22] Paragraph 19 of the Notice of Motion is a vague request for further disclosure if further evidence is produced. This request cannot be the subject of a court order.
[23] For the above-mentioned reasons I make the following orders:
CIBC is to search for any email or other correspondence from or to the respondent with respect to any negotiations or settlement of his severance package for the period from December 1, 2002 to December 3, 2003, and produce copies of same.
CIBC is to produce all documentation with respect to the granting and the exercise of the respondent’s stock options.
The applicant is to pay CIBC’s reasonable expenses for obtaining and producing the above-mentioned items.
The respondent is to sign a consent and direction that will permit the applicant to obtain from the Irish government copies of the respondent’s 2003, 2004, 2005, and 2006 Irish tax returns and notices of assessment.
The respondent is to provide the specific addresses for the condominium apartment and the townhouse at Marbella, Spain.
The respondent is to sign a consent and direction that would allow the applicant to obtain information from Miguel Volonnino and/or Ivar Dahl Estate Agents regarding the purchase and sale of properties by the respondent and/or any corporation in which the respondent had an interest.
There will be no costs of this motion for or against CIBC. As between the parties the costs of this motion are reserved to the judge who hears the application.
Henderson J.
Released: February 19, 2014
COURT FILE NO.: 2055/11
DATE: 2014/02/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dawn Hillman
Applicant
- and –
Ian Letchford
Respondent
ENDORSEMENT ON MOTION
Henderson J.
Released: February 19, 2014