SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Western Repair and Sales Inc., Plaintiff

AND:

Gogopak Inc., Karen Karall, Gene Karall Sr., Gene Karall Jr., Christine Karall and Lorraine Karall, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
M. Morden, for the Plaintiffs

Gene Karall Jr. and Christine Karall, in person

HEARING DATE: Motion in writing; motion materials dated February 21 and March 5, 2014

reasons for decision

[1] As to the refusals made on the examinations of Lorraine Karall and Gene Karall, Sr., in his affidavit sworn March 5, 2014, Gene Karall, Jr. deposed that answers would be provided to those questions. Accordingly, consent orders shall go requiring:

(i) Lorraine Karall to answer, on or before April 11, 2014, the following questions from her examination for discovery conducted January 28, 2014: QQ. 244; 246; 247; 251 and 252;

(ii) Gene Karall, Sr. to answer, on or before April 11, 2014, the following questions from his examination for discovery conducted January 28, 2014: QQ. 42, 68; 69 and 71.

[2] As to Questions 256-257 from the examination for discovery of Gene Karall, Jr. conducted January 27, 2014, Mr. Karall deposed that those questions did not really pose questions involving, instead, mere statements by questioning counsel.

[3] I have reviewed the transcript. Question 257 clearly contained a request by counsel for production of the financial statements for GoGoPak from 2010 until the present. That request was refused. The GoGoPak financial statements for that period of time clearly are relevant to the allegations pleaded that the defendants have appropriated property of the plaintiff to their benefit, for which the plaintiff seeks, by way of remedy, disgorgement of the profits earned by such conduct: see Statement of Claim, paras. 28, 32, 34, 46, 52, 54, 61 and 62. Accordingly, I order GoGoPak Inc. to produce to the plaintiff, on or before April 11, 2014, copies of the company’s financial statements for each year from 2010 until the present.

[4] As to costs, Case Management Memorandum No. 1 clearly stated that costs would be dealt with at a level of $1,500.00 per refusal. On the present motion, the defendants ultimately agreed to answer most of the refusals, but they were unsuccessful in respect of Question 257. I therefore order GoGoPak Inc. to pay the plaintiff the sum of $1,500.00 within 30 days of the date of this order.

D. M. Brown J.

Date: March 21, 2014