SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 47222-12
DATE: 2014-01-20
RE: Linda Lee McLeod, Applicant
AND:
Bruce David McLeod, Respondent
BEFORE: The Honourable Mr. Justice G. A Campbell
COUNSEL:
Anthony T. Keller, for the Applicant
Steven Lubczuk, for the Respondent
HEARD: October 1, 2013
ENDORSEMENT
[1] This was an oral motion by Respondent (pursuant to Rule 20.19) during a telephone conference call on October 1, 2013, for directions regarding outstanding undertakings, refusals and ‘under advisements’.
[2] On December 3, 2013, I set a timetable for written submissions from Applicant’s counsel and reply, if any, to be submitted regarding these issues arising from the questioning under oath.
[3] I have now received those submissions and have considered same. Regarding the 13 outstanding issues claimed, I order the following:
- Question #93 (page 20): That the Applicant produce her 2008 Income Tax Return.
I find that no undertaking was given and the documentation is no longer in her possession.
Request for order to produce and to re-attend for further questioning is denied.
- Question #180 (page 33): That Applicant provide her March 2009 bank statement for Account #5006.
I do not have a transcript of the actual question or answer. I accept Mr. Keller’s assertion that no undertaking was given.
In any event, I accept his declaration that the Applicant answered that she opened that bank account with a zero balance and later transferred $2,000.00 into that account on March 13, 2009 from her line of credit. She is bound by that answer given by her counsel per Rule 20.22.
The request to produce the statement and re-attend for further questioning is denied.
- Question #s 189-191 (page 34): That the Applicant produce the opening bank statement for Account #8109 and advise of source of funds.
I accept Mr. Keller’s response on his client’s behalf. The Applicant is now bound by that answer – Rule 20(22).
The request for disclosure and re-attendance for further questioning is denied.
- Question #236 (page 42): That the Applicant produce statements for her line of credit and her personal Visa as at date of separation and currently.
This evidence is both relevant and available to the Applicant. The transcript reveals that indeed an undertaking was given, (see Question #s 237-238) although Mr. Keller asserts that Schedule “B” that he says is attached to his written submission reveals that no undertaking was given. No Schedule “B” was attached to his submission.
I order that “all personal line of credit statements and personal Visa statements from date of separation to present be provided within 30 days hereof. The Applicant shall re-attend for further questioning under oath (to a maximum of one hour) at her own expense if demanded.
- Question #275 (page 49): That the Applicant provide her Home-Line Account statements for/from date opened, for date of separation, for November 21, 2012 and currently.
Mr. Keller answers for his client that the Home-Line Plan was opened November 30, 2009. It did not exist at date of separation. Ms. McLeod is bound by Mr. Keller’s response on her behalf.
The request for further disclosure and re-attendance for further questioning on this point is denied, until counsel for the Respondent establishes the relevance to the issues in dispute of the status of that account on November 21, 2012 or currently.
- Question #297 (page 54): That the Applicant provide a copy of the original contract between Mr. Jaques and the Ministry.
Per Rule 20(22) Mr. Keller has answered this for his client. In any event, per Rule 19(1)(b) Ms. McLeod was not party to that legal relationship and cannot be ordered to produce such documentation to which she was not a party.
The request is denied.
- Question #321 (page 58): That the Applicant generically advise if there exist “any documents” between 2001 and 2005 that have not been produced.
Per Rule 20(22) Mr. Keller has answered for his client.
In any event, the same circumstances as 6. above apply. The time period in question is well before the date of separation.
The request is denied.
- Question #349 (page 63): That the Applicant provide any documentation in the Ministry file that “pertain” to the (claimed) gift, the transfer and acquisition commencing in 2001 to and including 2006.
These documents are not and have never been in the Applicant’s control. (Rule 19(1)(b)) I am not satisfied that prior to August 18, 2005 Ms. McLeod was entitled to have those documents “available” to her upon her request.
However, one attempt to phone the Ministry (resulting in being “put on hold”) is an insufficient effort on her part to make her best (or any real) effort to offer full and complete (relevant) disclosure.
I do order Ms. McLeod (or her counsel) to write a formal letter of request to the Ministry seeking an answer to the Respondent’s Question #349 (with an open c.c. to counsel for the Respondent).
After completing that effort, I agree with Mr. Keller that the Respondent, if unsatisfied, may proceed as provided by Rule 19(11).
Other than as directed above (the letter of request) this request is denied.
- Question #276 (page 49): To produce all Royal Bank monthly statements from date opened or from date of separation to present.
This evidence is relevant and must be provided within 30 days. The Applicant shall re-attend for questioning under oath at her own expense as per 4. above (to a maximum of an additional one hour).
- Question #308 (page 56): To confirm whether the Ministry/Jaques’ agreement had been amended any time before November 2005.
Ms. McLeod was not a party thereto. That information is not in her control nor is it available to her on request.
Mr. McLeod may proceed per Rule 19(11) or Rule 20(9) to obtain that evidence.
The request is denied.
- Question #348 (page 63): That a direction signed by CAM ISSUE 2005 be provided directing the Ministry to provide “what documents it has in its file and obtain them”.
I decline to grant such a generic, far reaching “fishing” order. I agree with the refusal.
The request is denied (but counsel might consider the direction in 8. above regarding Question #349).
- Question #384 (pages 69-70): To produce “any documents” in 2004-05 “dealing with e-mails and other material and information that you may have at home that you (Ms. McLeod) thought you had” regarding lease negotiations or the discussions about the lease.
The request is too vague, general and broad. I decline to order the production of such a wide possibility of discussions or negotiations. The lease exists and any ‘discussions’ leading thereto that are relevant will have been embodied in the document. The refusal was appropriate.
The request is denied.
- Question #420 (pages 75-77): To produce any buy-sell agreement that may exist between the Applicant and a Third Party/non-party.
This evidence may be relevant and assist the court in establishing the true/market value of the licence and/or the sister’s enterprise (and confirm the true share value that the Applicant owns vis a vis her partner) if such a document exists.
I direct the Applicant to reveal through her counsel should she so instruct (per Rule 20 (22)) whether such a document exists within 10 days hereof.
If such a document exists, the Applicant shall produce a copy within 30 days hereof and submit to further questioning for up to 30 minutes as per 4. above.
[4] Per Rule 24(1) success was shared. There will be no costs.
G. A. Campbell J.
Date: January 20, 2014