CITATION: Garbe v Pumpernickel’s, 2016 ONSC 6569

COURT FILE NO.: CV-15-537215

MOTION HEARD: 2016-10-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL GARBE, Plaintiff

AND

PUMPERNICKEL’S DELI AND CATERING, Defendant

BEFORE: Master Lou Ann M. Pope

COUNSEL: Counsel for plaintiff: J. Hirsh, Rachlin & Wolfson LLP Fax: 416-367-1820

Counsel for defendant: Lorraine Takacs, Gorbet & Associates Fax: 1-855-591-1343

AMENDED REASONS FOR ENDORSEMENT

[1] The plaintiff seeks to strike the statement of defence for failure to comply with the order of Master Short made on June 13, 2016.

[2] The order was made prior to examinations for discovery and it required the defendant to produce specific documents. Subsequent to the order being made, the defendant produced numerous documents; however, it is the plaintiff’s position that the defendant has not fully complied with the order.

[3] After hearing submissions and based on the evidence, I conclude the following:

(a) Pesto sauce: despite the defendant having produced a photocopy of the label on a pesto sauce can (which presumably shows the ingredients), the defendant has not verified whether the label was the same as the label on the pesto sauce supplied to the plaintiff on May 28, 2014. Therefore, the defendant has not fully complied with paragraph 1(a) of Master Short’s Order;

(b) Dufflet Pastries:

(i) the defendant has not fully complied with paragraph 1(a) of the Order as it has not verified and advised the plaintiff whether the invoice dated May 12, 2014 is the last invoice in which Dufflet delivered products to the defendant;

(ii) the defendant has not fully complied with paragraph 1(a) of the Order as it has not produced the ingredient list for the remaining five cookies. If the defendant is unable to do so, it must comply with paragraph 3 of the Order that requires the defendant to provide a “detailed explanation of the reasons for such inability that could support a 30.10 motion for any missing items.” In my view, that provision requires the defendant to make best efforts to obtain and produce those documents, including letters and follow-up letters to the supplier.

(c) Baxter Kitchens (Circles & Squares): the defendant has not fully complied with paragraph 1(a) of the Order as it has not produced the ingredient lists for the balance of the items listed on the invoice. There are 22 items listed on the invoice dated May 28, 2014. The defendant produced ingredients lists for four of the cookies and they advised that three or four cookies have been discontinued since the May 28, 2014 order. The defendant has not made best efforts as there is no evidence of requests of the supplier to obtain the ingredient lists for the discontinued items, or a letter to the supplier requesting that it verify the discontinuance and explain why the ingredient lists are not available. Secondly, best efforts have not been made to obtain the ingredient lists for the balance of some 15 items on the invoice. Further, as stated above in paragraph (b) (ii), the defendant is required to make best efforts in accordance with paragraph 3 of the Order.

(d) Paragraph 1(c) of Order: Paragraph 40 of the affidavit filed by the defendant attests to there being no further documents than those produced. However, that evidence fails to be specific regarding what efforts were made to support that statement.

Paragraph 1(c) of the Order requires the defendant to produce “all correspondence and other documentation with the suppliers of the items delivered or of their ingredients.” Therefore, I do not agree with the plaintiff’s submission as it appears Mr. Rachlin is taking the position that the defendant is required to produce all results of their investigation (as referenced in Sonya Philipsz’s email of July 23, 2015). In my view, the term of the Order is specific as to what is to be produced and it refers only to correspondence and documents with the “suppliers of the items delivered.” Counsel at the hearing advised the court that both counsel consented to the terms of Master Short’s Order; therefore, it is unlikely that defence counsel would have agreed to terms of an order that would require their client to produce privileged documents.

However, it is my view that the defendant has not made best efforts to determine whether it has complied with paragraph 1(c) of the Order by: (1) enquiring of Ms. Philipsz as to whether she delivered her entire file to defence counsel, and (2) by defence counsel conducting a review of their file, the adjuster’s file and the insurer’s file, if there is one, to ascertain whether the defendant has produced all documents required to be produced to comply with the Order. Once those steps have been conducted, those efforts must be communicated and copies of the request letters sent to plaintiff’s counsel in order for plaintiff’s counsel to bring a Rule 30.10 motion.

[4] Further, with respect, I do not agree with the defendant’s submission that the production requirements as set out in the Order do not meet the test for proportionality. The fact that the defendant is unable to specify what exact items it placed on the platters of food is the reason that it must now provide ingredient lists for all items on the invoices. This is not the fault of the plaintiff. When the plaintiff placed the order with the defendant, he specified “no seeds or nuts,” which is set out twice on the defendant’s email dated May 26, 2014 that was filed at my request at the hearing of the motion. As well, the defendant’s invoice, also filed at the hearing, specifies twice “no seeds or nuts.” I disagree that because it was the defendant’s procedure or policy not to keep a record of the items that were placed on the platters, particularly in a situation where a customer specified “no seeds or nuts” that the plaintiff is then required to tell the defendant what he ate that day.

[5] Despite my findings above that the defendant has failed to comply with several terms of Master Short’s order, I am not prepared to strike the statement of defence as the defendant has been fully involved in defending this action and moving it ahead to trial. Therefore the following orders shall be issued:

(a) the plaintiff’s motion to strike the statement of defence is dismissed;

(b) the defendant shall comply with paragraph 1(a) of Master Short’s order as follows:

(i) regarding the pesto sauce, to verify whether the label that was produced was the same as the label on the pesto sauce supplied to the plaintiff on May 28, 2014;

(ii) regarding the items ordered from Dufflet Pastries, to verify and advise the plaintiff whether the invoice dated May 12, 2014 is the last invoice in which Dufflet delivered products to the defendant, and to produce the ingredient lists for the remaining five cookies. If the defendant is unable to produce the ingredient lists, it shall make best efforts to obtain and produce them, including letters and follow-up letters to the supplier in compliance with paragraph 3 of Master Short’s order;

(iii) regarding the items ordered from Baxter Kitchens (Circles & Squares), the defendant shall produce the ingredient lists for the balance of the items listed on the invoice. If the defendant is unable to produce the ingredient lists, it shall make best efforts to obtain and produce them, including letters and follow-up letters to the supplier in compliance with paragraph 3 of Master Short’s order. Further, if the defendant is unable to obtain the ingredient lists for items that were discontinued, it shall make best efforts to obtain and produce letters and follow-up letters to the supplier requesting that it verify the discontinuance and explain why the ingredient lists are not available, in compliance with paragraph 3 of Master Short’s order;

(iv) regarding paragraph 1(c) of Master Short’s order, the defendant shall make best efforts to comply by (1) enquiring of Ms. Philipsz as to whether she delivered her entire file to defence counsel, and (2) by defence counsel conducting a review of their file, the adjuster’s file and the insurer’s file, if there is one, to ascertain whether the defendant has produced all documents required to be produced to comply with Master Short’s order. Once those steps have been conducted, the defendant shall advise the plaintiff, in writing, of all steps taken and to produce to the plaintiff copies any request letters.

[6] The plaintiff was successful on this motion, therefore, he is entitled to his partial indemnity costs which are fixed in the amount of $1,915.91, as claimed, which in my view is reasonable. Costs are payable within 30 days.

_(original signed) __

Master Lou Ann M. Pope

Amended and Released: October 31, 2016