Court File and Parties
COURT FILE NO.: CV-14-516561 DATE: 20160727 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Continental Casualty Company, Plaintiff – AND – Robert Symons, as successor in interest to G. Gordon Symons also known as Gerald Gordon Symons and as Trustee of the Estate of Gerald Gordon Symons, Alan G. Symons, The Estate of Gerald Gordon Symons, Symons International Group, Inc., IGF Holdings, Inc., Granite Reinsurance Company, Ltd. and Goran Capital Inc., Defendants
BEFORE: Justice E.M. Morgan
COUNSEL: Lou Brzezinski and Varoujan Arman, for the Plaintiff Sean Zeitz, for the Defendants
HEARD: supplementary submissions in writing
Second Supplementary Endorsement
[1] Counsel for the Defendants has written to me in light of my Supplementary Endorsement of July 22, 2016, indicating that one of his objections to the draft Order in this matter was to paragraph 11 but that I had mistakenly addressed paragraph 10. I have reviewed the draft Order again, and I can see that counsel for the Defendants is correct. Due to the change in paragraph numbering from one draft of the Order to another, I addressed the paragraph preceding the one to which the objection related.
[2] I thank Defendants’ counsel for drawing my attention to the error, which was inadvertent on the part of all concerned. Although I have signed the Order, counsel advise that it has not yet been entered by the court. Accordingly, I am not yet functus officio in this matter, and am still able to make any rectification that may be required: Byers v Pentex Print Master Industries Inc. (2003), 62 OR (3d) 647 (Ont CA).
[3] Paragraph 11 of the Order, to which the Defendant, Robert Symons, objects, reads as follows:
THIS COURT ORDERS that within sixty (60) calendar days of the date of this Order, Robert Symons shall provide the Receiver with a statement under oath describing each of the Estate and Gerald Gordon Symons’ assets and liabilities and all transactions in excess of $10,000.00 from January 1, 2000 to present, including particulars as to with whom the transaction was performed, and by what means, and for what purpose.
[4] The specific objections to this paragraph are:
a) that the paragraph requires Robert Symons to provide a detailed statement of transactions engaged in by Gerald Gordon Symons since 2000, whereas Robert Symons has only been executor since 2010 and may not have the records needed to provide the detailed statement for the years prior to 2010;
b) that although Robert Symons is identified in these proceedings as the Executor of the Estate of Gerald Gordon Symons, probate has not been finalized and so he does not have the formal authority to act on behalf of the Estate. The paragraph requires Robert Symons to obtain information about Gerald Gordon Symons’ transactions that may be held by banks or other institutions, and Robert Symons submits that he lacks authority to write to the relevant institutions requesting information on behalf of the Estate; and
c) that there is no relevance to the starting point for the information requested – January 1, 2000 – and the passage of time has made it impossible for Robert Symons to provide the kind of detailed transactional information that the paragraph requires.
[5] I have now considered these objections carefully, and have concluded that there is no reason to change the terms of paragraph 11 of the draft Order. The paragraph, and the Order as a whole, reflects my endorsement. These objections submitted on behalf of Robert Symons embody points that were articulated by counsel at the time of the hearing and were understood by me when I wrote my original endorsement.
[6] The chronological starting point for the list of transactions to be provided by Robert Symons is, and was always designed to be, somewhat arbitrary. A line has to be drawn somewhere. The point is to start far enough back to catch as many of Gerald Gordon Symons’ impugned transactions as is feasible.
[7] Further, it has always been understood that Robert Symons can only use his best efforts to acquire information that he does not possess or control. If the holders of the relevant information – whether financial institutions or other corporations or individuals – will not provide him with the information sought, then he will convey that to the investigative Receiver. The same holds true with information which pre-dates Robert Symons’ involvement with Gerald Gordon Symons’ affairs. Robert Symons is to provide what he possesses or controls, or what he can through due diligence find and through best efforts acquire.
[8] It goes without saying that no one can be expected to produce or convey what they simply do not have or know or that they are unable to acquire. However, the fact that there may be some documents which Robert Symons cannot access even with the best and most diligent of efforts, is not a reason to reject the draft Order. That possibility is accounted for in any sensible reading of the Order. As with the balance of the Order, paragraph 11 is drafted in a way that conforms with my reasons for decision and that formalizes matters considered and included, either expressly or by implication, in those reasons.
[9] Although I do not agree with Defendants’ counsel’s position on changes to, or the elimination of, paragraph 11, I do understand why he made his follow-up submission after receiving my Supplementary Endorsement. In the letter which I received from Defendants’ counsel pointing out the mix-up in paragraphs, he stated that he was in the “unenvious role of having to point out the error to you.” I admire counsel’s understatement; his role was indeed unenvious. However, he conveyed his point with civility and grace. That is much appreciated.