Court File and Parties
COURT FILE NO.: 54216/13 DATE: 2017/04/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marineland of Canada Inc. Plaintiff/Defendant by Counterclaim
AND:
Phillip Demers Defendant/Plaintiff by Counterclaim
COUNSEL: Andrew Burns, for the Plaintiff/Defendant by Counterclaim Krista Bulmer, for the Defendant/Plaintiff by Counterclaim
HEARD: April 7, 2017 The Honourable Justice J. R. Henderson
DECISION ON MOTION
[1] These motions by Marineland of Canada Inc. (“Marineland”) and Phillip Demers (“Demers”) were heard together.
[2] This round of motions started with Marineland’s motion for an order that Demers deliver a further and better Affidavit of Documents, which was originally returnable in December 2015. Thereafter, there have been various affidavits, examinations, cross-examinations, amended motions, and cross-motions. Now, both of the parties have consolidated their outstanding requests into their Amended Notices of Motion returnable today.
[3] There are two broad categories of relief contained in the motions. First, there is an issue as to which person will be produced as a representative of Marineland for the examination for discovery, and on what terms. Second, there is an issue as to whether either or both parties should be required to deliver a further and better Affidavit of Documents.
MARINELAND’S REPRESENTATIVE
[4] Demers requests that John Holer (“Holer”) be produced as a representative of Marineland for the examination for discovery. In my view, that is not an unreasonable request given that Holer was the operating mind of Marineland for approximately 50 years. However, there are some obstacles to Demers’ request.
[5] The first obstacle is the fact that there is a Discovery Plan that was incorporated into an order of this court dated May 28, 2015. The Discovery Plan provides that Carmen Grimaldi (“Grimaldi”) would be produced as Marineland’s representative for the examination for discovery.
[6] In my view, this first obstacle is easily overcome. The Discovery Plan actually contemplates Demers’ motion for the production of another representative for Marineland, and in particular refers to the possible production of Holer for the examination for discovery. Thus, in my view, this motion by Demers is not precluded by the Discovery Plan.
[7] The second obstacle to Demers’ request is Marineland’s submission that Holer has some health problems and he may not be able to participate fully in an examination for discovery. I accept that Holer is now 81 years of age and has multiple health issues. I also accept that as a consequence of his deteriorating health, Holer resigned as an officer and director of Marineland as of May 2016.
[8] That being said, I agree with counsel for Demers that Holer likely has the best firsthand knowledge as to the relationship between Marineland and Demers.
[9] Dr. Sidhu, Holer’s current family doctor, provided an opinion letter with respect to Holer’s health. In addition, Dr. Sidhu attended at the examiner’s officer and was cross-examined by counsel for Demers with respect to Holer’s health.
[10] In summary, Dr. Sidhu stated that she has been Holer’s doctor since February 2016; that Holer underwent major heart surgery in the fall of 2015; that Holer is a man with multiple medical conditions; that Dr. Sidhu has seen Holer for four visits since February 2016; that on one occasion at her office Holer had difficulty sitting for 15 minutes and he suffered shortness of breath; and that in Dr. Sidhu’s opinion Holer cannot attend a full-day examination, but could, depending upon his condition, attend for two to four hours per day.
[11] Accordingly, I will require Marineland to produce Holer as its representative for the examination for discovery, on certain conditions set out herein. Also, I will not permit the examination for discovery to continue for more than seven hours in total. Further, I will provide for an alternate person to be examined for discovery if Holer is unable to complete the full seven hours, or if counsel for Demers chooses to examine the alternate representative for part of those seven hours.
[12] In my view, the alternate representative of Marineland should be Grimaldi because Grimaldi was the original person selected, and agreed to, in the original Discovery Plan.
[13] On the motion before me today, Demers’ counsel sought the production of a different alternate person, namely Tracy Stewart (“Stewart”). However, I find that Grimaldi has been heavily involved in this proceeding, and has at least as much relevant information as Stewart.
[14] Accordingly, on this portion of the motion, an order will go as follows:
(i) Holer shall be examined as a representative of Marineland for two full hours per scheduled discovery day, excluding time for breaks, conditional upon Holer’s health permitting him, in Holer’s opinion, to participate for the full two hours in any given day. (ii) Holer may take as many breaks during a scheduled discovery day as may be necessary to accommodate his health. (iii) Holer’s examination for discovery shall take place in Niagara Falls, Ontario. (iv) Demers will not examine Holer for discovery for more than seven hours in total, excluding time for breaks. (v) Demers may choose to examine Grimaldi in place of Holer for some or all of the total of seven hours allotted for the examination for discovery.
PRODUCTION OF DOCUMENTS
[15] As a result of his first cross-examination, Demers produced an additional 836 documents that had not been produced prior to that day. Then, on his second cross-examination he was asked about communications between himself and Camille Labchuk (“Labchuk”). Counsel for Demers has responded to this request in writing by stating that the communications between Demers and Labchuk would be provided in a detailed Schedule B.
[16] Therefore, it is ordered that Demers shall forthwith provide an updated Affidavit of Documents which will include the additional 836 documents, and which will also include a detailed Schedule B.
[17] Regarding Demers’ request for a further and better Affidavit of Documents from Marineland, it became obvious during argument that the list of documents requested by Demers in his Notice of Motion is an extensive, yet very vague, list. For example, Demers requests that Marineland produce “any internal financial documents”. If this court were to make such an order, it would require Marineland to literally turn over all financial records it ever generated to Demers. This is not appropriate.
[18] In my view, Demers will likely be entitled to production of some further documents from Marineland, but at this point it is difficult to specifically identify those documents. The production of financial records, veterinary records, and investigation records is an issue that would be more efficiently resolved after examinations for discovery, or after Marineland particularizes its claim.
[19] Therefore, I will not order that Marineland deliver a further and better Affidavit of Documents at this point. This decision is without prejudice to Demers bringing another motion at a later date for production of specific documents.
[20] As part of the case management of this proceeding, I confirm that all parties have agreed that Marineland must particularize its damages claim, and that once Marineland does so, Marineland will likely be required to produce further financial documents. Accordingly, it is ordered that Marineland provide particulars of its damages claim, with all supporting documentation, on or before August 1, 2017.
[21] Finally, regarding Demers’ obligation to produce electronic records, I find that Demers has created a multitude of electronic records because of the fact that Demers regularly uses social media and public websites to post comments, post videos, and engage in conversations. Demers has provided a list of websites and social media accounts on which he has created these electronic records, and that list is attached as Schedule A to this decision.
[22] I accept that it would be an onerous task to require Demers to provide hard copies of all of the electronic records that he has created. In my opinion, if these electronic records are publicly available, counsel for Marineland should be able to easily access them in electronic fashion.
[23] Therefore, I declare that Demers is not required to provide a hard copy of any electronic record that he has created or posted to the websites listed in Schedule A, and he is not required to make a list of those electronic records, provided that those electronic records are publicly accessible.
[24] The parties may draft a formal order in accordance with these reasons.
[25] If there are any issues arising out of this decision, including costs, I direct that the party seeking relief shall deliver written submissions to the trial coordinator at St. Catharines within 14 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves.
J. R. Henderson J. Released: April 10, 2017