Court File and Parties

COURT FILE NO.: CV-15-521400 MOTION HEARD: 2017-05-03 REASONS RELEASED: 2017-05-17

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

DAVID AXELROD and CHAD-WICK CONSTRUCTION MANAGEMENT INC. Plaintiffs

• and-

PRIMONT MANAGEMENT CORPORATION, PRIMONT HOMES (HARMONY) INC., PRIMONT HOMES (CASTLEMORE) INC., PRIMONT HOMES (MAPLE) INC. and PRIMONT HOMES (MAJOR MACK) INC. Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: Julius Ko Email: jko@dakllp.com -for the Defendants/Plaintiffs by Counterclaim, Primont Management Corporation, Primont Homes (Harmony Inc.), Primont Homes (Castlemore) Inc., Primont Homes (Maple) Inc. and Primont Homes (Major Mack) Inc.

Jordan Goldblatt Email: jgoldblatt@adairbarristers.com -for the Plaintiffs/Defendants by Counterclaim, David Axelrod, Chad-Wick Construction Management Inc. and Kersdale Investments Inc.

REASONS RELEASED: May 17, 2017

Reasons For Endorsement

I. Background

[1] This is a motion by the defendants/plaintiffs by counterclaim, Primont Management Corporation, Primont Homes (Harmony Inc.), Primont Homes (Castlemore) Inc., Primont Homes (Maple Inc.) and Primont Homes (Major Mack) Inc. (collectively, “Primont” or the “Defendants”) seeking to compel the plaintiffs/defendants by counterclaim, David Axelrod, Chad-Wick Construction Management Inc. and Kersdale Investments Inc. (collectively, the “Plaintiffs”) to answer undertakings, questions taken under advisement and refusals arising from the examination for discovery of David Axelrod at his examination for discovery held on July 13, 2015.

[2] A motion by the Plaintiffs seeking to compel the Defendants to provide answers to undertakings given by Joe Monestano of Primont at his examination for discovery on July 14, 2015 was also to have proceeded today. Both motions were adjourned on consent by Master Pope on March 8, 2017 to provide the parties with additional time to exchange positions and answers.

[3] The Plaintiffs’ motion was resolved on consent with only the issue of costs outstanding subject to the Defendants’ undertaking to deliver the documents with respect to Question 599. It was apparent from the materials filed on the Defendants’ motion and my discussions with counsel that, as with the Plaintiffs’ motion, in the days leading up to the court attendance, the outstanding questions and requests continued to be resolved and narrowed. In fact, the chart relied upon by the Defendants was revised materially immediately prior to this attendance.

[4] Many of the undertakings which are the subject of the Defendants’ motion appeared to relate to best efforts taken by the Plaintiffs or follow-up questions or requests by the Defendants. This ongoing exchange of documents and positions in advance of this attendance led to the resolution of the Plaintiffs’ motion. Therefore, I urged counsel to continue these discussions and exchanges given that additional time might assist in resolving these issues without the need for a contested motion.

[5] However, discussions in court and between counsel outside of court failed to result in an agreement. Counsel advised that they did not believe that any further discussion would change the parties’ positions on the outstanding questions and that direction was required in advance of a scheduled attendance in To Be Spoken To Court on May 29, 2017. Therefore, the motion proceeded with respect to 11 undertakings, 12 under advisements and 8 refusals.

[6] This is an action by the Plaintiffs for wrongful dismissal arising from the termination of Mr. Axelrod’s employment as a construction supervisor for Primont, a residential home builder. Mr. Axelrod invoiced Primont through his corporation Chad-Wick Construction Management Inc. (“Chad-Wick”). Mr. Axelrod was employed with Primont from December 2010 until his termination on November 28, 2014. In their Statement of Claim dated March 2, 2015, the Plaintiffs claim general and special damages in the amount of $60,000 for breach of contract, unpaid amounts of $3,911.54 and punitive damages in the amount of $25,000.

[7] In their Statement of Defence and Counterclaim dated February 27, 2015 (the “Counterclaim”), the Defendants allege that that Mr. Axelrod fundamentally breached the terms of his employment and his fiduciary duties by, among other things, utilizing the trades, materials, equipment and supplies of Primont on other projects and for homeowners who had purchased homes from Primont in competition with Primont without Primont’s consent or knowledge. The Defendants claim general damages in the amount of $500,000 and punitive damages in the amount of $100,000.

II. The Law and Analysis

[8] The parties did not file any written legal submissions.

[9] Rule 31.06 of the Rules of Civil Procedure provides that:

(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action….

[10] In considering the submissions of the parties and arriving at my conclusions, I have considered and relied on Rule 29.2.03 of the Rules of Civil Procedure which sets out the proportionality factors which apply to both oral and documentary discovery:

(1)In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[11] Relevance, the scope of discovery and proportionality were explained and applied comprehensively by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504. In particular, discovery questions must be relevant to the issues as defined by the pleadings. Overbroad and speculative discovery and “fishing expeditions” are not permitted.

[12] Some of the Defendants’ requests for additional documents relate to documents which the Plaintiffs state do not exist and/or where the Plaintiffs say that they have produced all relevant documents in their possession or control. In my view, such circumstances are similar to Arenza Global Technologies Corp v. Cue Network Ltd in which Master Haberman (as she then was) ordered the defendants to re-attend at examinations for discovery rather than deliver a further and better affidavit of documents where it was not clear that the documents which the plaintiffs were seeking even existed. In Master Haberman’s view, it was not appropriate to order the delivery of a further and better affidavit of documents at that time, rather, the appropriate time for further productions would be if further documents were identified on oral discovery.

[13] Counsel for the Defendants advised that, with respect to certain requests, the Defendants may require that Mr. Axelrod re-attend on discovery to answer questions, including about documents which have been produced or documents that may exist. Counsel also advised the Defendants may bring a motion under Rule 30.10 of the Rules of Civil Procedure for the production of documents and records from non-parties which are the subject of this motion.

[14] The chart of undertakings, questions taken under advisement and refusals which counsel relied on is attached to this Endorsement as Schedule “A” (the “Chart”). My conclusions with respect to each are set out in the paragraphs below and correspond with the answers, updated answers and comments set out in the Chart.

[15] Undertaking #3 – As a follow-up question, the Defendants ask when work at the Rothbury site ended. The Plaintiffs have advised that worked ended on or about September 30, 2011. Defendants’ counsel advises that the Defendants now agree that this undertaking has been answered. This undertaking is satisfied.

[16] Undertaking #5 – As a follow up question, the Defendants ask when all plans from the architect for the Estrin project were received. The Defendants submit that date of the architectural plans is relevant because it will show when Mr. Axelrod was working on this competing project. The Plaintiffs have already advised that Mr. Axelrod has provided all information to the best of his knowledge, information and belief: “a complete set of proposed drawings for final budget purposes was received February 15, 2015.” Defendants’ counsel could not distinguish how the date of the architectural plans is or might be different from the February 15, 2015 date for the complete set of proposed drawings or how this might be relevant. In any event, the Plaintiffs say that this is all of the information they have in response to this question. In my view, this undertaking is satisfied and any further follow-up questions can be asked on re-attendance on discovery and any additional documents identified at that time.

[17] Undertaking #6 and Under Advisements #6-#10 – This 1 undertaking and 5 questions taken under advisement were addressed as a group. All of these questions relate to the production of financial statements or income tax returns for the Plaintiffs. With respect to the income tax returns for Mr. Axelrod and Chad-Wick, the Plaintiffs state that they have produced all of Mr. Axelrod’s tax returns and all of Chad-Wick’s financial statements from 2010 to the present. As above, I conclude that the undertaking and under advisements with respect to these requests are satisfied and any further relevant questions and documents can be addressed on re-attendance at discovery. With respect to the Defendants’ request for the bank statements, financial statements and tax returns of Kersdale Investments Inc. (“Kersdale”) from March, 2014 to the present (Under Advisements #9-#10), the Plaintiffs take the position that these documents are not relevant to the issues in dispute. However, the Defendants named Kersdale as a defendant by counterclaim, making them a party to this litigation and at paragraph 22 of the Counterclaim, the Defendants allege that Mr. Axelrod “used Chad-Wick and Kersdale to carry out his competing activities and breach his fiduciary and employment duties”. Accordingly, in my view, based on the pleadings, the Defendants’ requests are relevant to matters at issue in the Counterclaim, namely, any role or use of Kersdale in the breaches alleged by the Defendants. Therefore, the Defendants are entitled to this information, which the Plaintiffs have already produced for Chad-Wick and the Plaintiffs shall produce these documents within 30 days.

[18] Undertaking #7 - In response to a request for invoices of costs of any of Mr. Axelrod’s or Chad-Wick’s replacement jobs, the Plaintiffs state that all costs were paid directly by the homeowners and Mr. Axelrod and Chad-Wick invoiced for their services. As a follow-up question, the Defendants ask if any inquiries have been made to the homeowners “for copies of invoices and purchases”. The Plaintiffs advise that they have no copies and their position is that they are not obligated to request these documents from the homeowners which the Defendants can request directly from the homeowners or seek on a motion under Rule 30.10 of the Rules of Civil Procedure. I am not convinced that the documents requested by the Defendants are anything more than marginally relevant given that the costs were paid by the homeowners and they have already received full production on the relevant issue of how much the Plaintiffs profited from or were paid for these jobs. Further, it would be contrary to proportionality for the Plaintiffs to be ordered to incur the time and cost of obtaining these documents from the homeowners where the relevance is questionable. Accordingly, this undertaking is satisfied and the Defendants have the option of bringing a Rule 30.10 motion to seek these documents directly from the homeowners.

[19] Undertakings #11, #13, #17 –These undertakings deal primarily with the Defendants’ requests for lists of trades, subcontractors and suppliers used on jobs by Mr. Axelrod and Chad-Wick, including the Kersdale job, the 10 Church Street project and all other Chad-Wick projects. The request with respect to the Kersdale job requested names and contact information for trades that were not doing work for Trimont. The Plaintiffs have provided the only list which Mr. Axelrod has for the trades with contact details for the Kersdale job. The Defendants state that “no list has been provided for the trades on the Kersdale job that were not doing work for Primont”. Similarly, with respect to the request for all trades, subcontractors and suppliers for all jobs, the Plaintiffs state that they have provided all information and documentation in their possession or control. On both these requests, since the Plaintiffs have produced the only list they have, there is nothing more to produce at this point and any further relevant questions regarding the list or the trades can be asked on re-attendance on discovery. With respect to the Church Street project, the Defendants requested the names of the trades and to advise if Mr. Axelrod was paid a fee for this project. The Plaintiffs have provided the names of the trades and confirmed that Mr. Axelrod was not paid a fee while noting that the trades were either paid directly by the owner or by Mr. Axelrod by personal cheque. The Defendants take issue because no copies of these cheques have been provided, however, they did not and have not requested them. Therefore, as above, any further relevant questions regarding these cheques or other relevant documents can be asked on re-attendance on discovery. All three of these undertakings are satisfied.

[20] Undertaking #15 – Mr. Axelrod undertook to produce any receipts for gas purchased personally or through Chad-Wick for the Primont vehicle from March to November, 2014. Mr. Axelrod searched his records but could not find any receipts, however, he has produced his bank statements for this period which list purchases from Petro Canada. As a follow-up question, the Defendants ask if the Petro Canada entries indicate gas purchased for the Primont vehicle. Mr. Axelrod states that he has no further information. Accordingly, as above, any further questions can be asked on re-attendance at discovery. This undertaking is satisfied.

[21] Undertakings #21-#22 – These two undertakings relate to documents from non-parties, Central Fairbank Lumber (Undertaking #21) and the owner of the Connaught Ave. project (Undertaking #22). Mr. Axelrod advised that he does not have any delivery bills, receipts for pick-up or packing slips for any Chad-wick project from Central Fairbank Lumber. The Plaintiffs sent a letter dated March 28, 2017 to Central Fairbank Lumber requesting these documents and undertook to deliver these documents as soon as they are available. As a follow-up question, the Defendants ask if the Plaintiffs have made any follow-ups with Central Fairbank Lumber. I am uncertain why such a question is the subject of a motion particularly given how recent the letter was sent. The Plaintiffs will follow up in due course and once they have done so, if the documents are not provided by Central Fairbank Lumber, then this undertaking will be satisfied. The Defendants have the option of requesting the documents directly from Central Fairbank Lumber or bringing a Rule 30.10 motion. With respect to the Connaught Ave. project, the Defendants request any written communication between the Plaintiffs and the owner regarding the termination of this project. Mr. Axelrod has searched for any records and advised that he no longer has any such documentation in his possession or control and does not usually retain copies of documentation from projects which have been terminated. The Defendants have asked if the Plaintiffs have requested any such documentation from the owner of the Connaught Ave. project. The Plaintiffs’ position is that the Defendants can request the documents themselves or bring a Rule 30.10 motion. I agree with the Defendants that the Plaintiffs should, as they did with Central Fairbank Lumber, make best efforts to request and obtain any relevant documentation including copies of communications regarding the termination of the Connaught Ave. project within 30 days.

[22] Undertakings #25-#26 – These undertakings relate to particulars and facts with respect to the Plaintiffs’ damage claims. In Undertaking #25, the Plaintiffs undertook to provide particulars for general and special damages and advised that there are no particulars other than what is outlined in the Statement of Claim. The Defendants’ position is that this answer is non-responsive and that the Plaintiffs should “either provide particulars or withdraw the claim”. This is not a particulars motion or a motion to strike a pleading and counsel for the Defendants provided no legal basis to support their position that the Defendants are entitled to any additional particulars at this time or that the Plaintiffs should withdraw their claim. In Undertaking #26, the Defendants requested what facts the Plaintiffs rely upon for their claim for punitive, aggravated and exemplary damages. In response, the Plaintiffs have advised that the manner of termination, the suggestion that Mr. Axelrod was in competition with Primont, the communications made by Primont to other builders trades and suppliers and the breach of Mr. Axelrod’s privacy right give rise to these damages. The Defendants ask a series of follow-up questions and state that examples do not help, that they are entitled to “all the facts and evidence”. Again, counsel for the Defendants was unable to provide any legal basis for this alleged entitlement. In my view, in addition to the absence of any specific legal entitlement, proportionality dictates that both of these undertakings are satisfied, that no further costs or efforts should be expended and any further relevant questions can be asked on re-attendance on discovery.

[23] Under Advisements #1, #2, #3 – These questions all relate to Mr. Axelrod’s son Chad, who Mr. Axelrod hired as site superintendent on the Kersdale property project. The Defendants request that the Plaintiffs produce Chad’s superintendent log and any records, including invoices and payroll records that show the number of hours that Chad put in on the Kersdale project. The Plaintiffs have produced all of the records in their possession or control with respect to costs, invoices and contacts for trades and any records regarding the hours Mr. Axelrod put in with respect this project and take the position that the information with respect to Chad, a non-party, is not relevant. Counsel for the Defendants submits that the documentation with respect to Chad may provide information with respect to when and how much Mr. Axelrod was on the Kersdale project. In my view, this is mere speculation at best as I fail to see how Chad’s hours and records will reflect when and how much his father was on site, making its relevance marginal at best. I conclude that the Plaintiffs are not required to answer these questions.

[24] Under Advisements #11, #12, #13 - These questions arise from requests by the Defendants for all bids submitted by the Plaintiffs on other projects from November 28, 2014 to the present; all invoices, quotations or other communications received from any trades with respect to the Kersdale project or other projects; and to provide all invoices paid to all other trades and suppliers with respect to the other work that Chad-wick performed from 2010 forward. In each case, the Plaintiffs advise that they have produced all documents in Mr. Axelrod’s possession or control which are responsive to these requests: the Construction Agreement for the 234 Delhi Project and the invoices for the Kersdale project, noting again that all trade invoices were paid directly by the project owners. Counsel for the Defendants state that if the payor of the invoices is controlled by the Plaintiffs then they are entitled to disclosure, otherwise, if the payor is a non-party, they can bring a Rule 30.10 motion to obtain disclosure. The Plaintiffs have advised that none of the invoices were paid by any of the Plaintiffs and in any event, they have produced all of the relevant documents in their possession or control. Accordingly, as with similar requests discussed above, the Defendants can ask further questions on re-attendance on discovery or, as their counsel acknowledges, bring a Rule 30.10 motion to seek production from non-parties. The Plaintiffs are not required to answer these questions.

[25] Under Advisement #14 – This question arises from the Defendants’ request for the Plaintiffs’ witness statements or summaries of anticipated evidence of witnesses on the basis that the Plaintiffs have set this matter down for trial and seek a trial date. Counsel for the Defendants could not provide any legal basis which gives rise to the requirement to provide witness statements or summaries, which are typically addressed at the pre-trial conference to schedule the trial. Accordingly, the Plaintiffs are not required to answer this question.

[26] Refusals #1, #2, #5, #9, #10 – The Plaintiffs have refused these related requests by the Defendants to produce Mr. Axelrod’s cellular phone records for the period when he was employed by Primont; authorization to obtain these records from Rogers; access to Mr. Axelrod’s cellular phone to obtain any copies of any e-mails sent and received; consent to contact his cellular phone service provider for access to any e-mails; and access to Chad-Wick’s server to review any e-mails with respect to the Kersdale project. The Plaintiffs submit that these requests are not relevant and are overly broad. Defendants’ counsel submits that these records will show who Mr. Axelrod was speaking with, texting and/or emailing while he was supposed to be a full-time site supervisor for Primont and that Mr. Axelrod has not produced any such e-mails. In my view, all 5 of these requests are overly broad, speculative and contrary to proportionality, particularly, the requests for access to Mr. Axelrod’s cellular phone and Chad-Wick’s server which constitute “fishing expeditions”. The Defendants have not made any meaningful attempt to limit these requests by date or issue which would address not only relevance but the number of documents which would be generated and the time and cost required to obtain and review them. While the Plaintiffs have an ongoing obligation under Rule 30 of the Rules of Civil Procedure to produce relevant documents, including e-mails, the Plaintiffs state that they have produced all relevant documents in their possession or control. The Defendants cannot point to any evidence which casts doubt on the Plaintiff’s documentary discovery efforts to date and therefore, any further relevant questions regarding additional relevant documents which may exist are more properly posed on re-attendance on discovery. The Plaintiffs are not required to answer these 5 questions.

[27] Refusal #4 - The Plaintiffs refuse to provide information with respect to who Mr. Axelrod and Chad-Wick are currently pricing projects for. The Plaintiffs have provided this information for the alleged 8-month notice period after Mr. Axelrod’s termination to address mitigation and take the position that anything beyond that date is not relevant. The Defendants appear from the Chart to have accepted this information in full satisfaction of this request. However, to the extent to which they do not, I agree with the Plaintiffs that any information regarding the identity of who Mr. Axelrod and Chad-Wick are pricing for beyond the 8-month notice period is not relevant and need not be produced.

[28] Refusal #7 – The Plaintiffs refuse to advise if Mr. Bloom, a partner in Kersdale, entered into a contract with some entity respect to certain projects. Counsel advised that Kersdale incorporated entities to bid for and complete jobs. The Defendants state that Mr. Bloom likely contracted with Chad-Wick in some capacity while the Plaintiffs were still employed with Primont. It is not clear to me, nor did counsel’s submissions make it any clearer, how any personal contracts entered into by Mr. Bloom, a non-party, would be relevant to matters at issue in this litigation. Given that Kersdale is a party to these proceedings, it would appear that any contracts which Kersdale entered into might be relevant but that is not what has been requested. Therefore, as currently framed, I conclude that this question is speculative, not relevant and need not be answered by the Plaintiffs. Any further, properly framed and relevant questions can be asked on re-attendance on discovery.

[29] Refusal #8 - The Plaintiffs refuse to answer who from the Eversfield group of investors would have been in contact with Icon Plumbing on the basis that both Eversfield and Icon are non-parties. The Defendants submit that this is relevant to the issue of competition given that Icon, a Primont trade, may have been directed by Eversfield or Mr. Axelrod and that this information will help determine if the Plaintiffs were directing Icon while employed by Primont. Given that Eversfield and Icon are non-parties, are not under the control of the Plaintiffs and the speculative, marginally relevant and remote nature of this request, in my view, the question as currently framed need not be answered.

[30] Based on my review and consideration of the circumstances and factors set out above, I conclude that, other than with respect to Undertaking #22 and Under Advisements #9 and #10, the relief sought by the Defendants on this motion should be dismissed.

III. Disposition

[31] Order to go as follows:

i.) the Plaintiffs shall make best efforts to request and obtain any relevant documentation including copies of communications regarding the termination of the Connaught Ave. project from the owner of the project within 30 days of the date of this Order;

ii.) the Plaintiffs shall produce the bank statements, financial statements and tax returns of the defendant by counterclaim Kersdale Investments Inc. from March, 2014 to the present to the Defendants within 30 days of the date of this Order;

iii.) the balance of the Defendants’ motion is dismissed.

[32] Counsel exchanged costs outlines at the conclusion of the motion. If the parties are unable to agree on the costs of both motions, they may file costs outlines and written costs submissions not to exceed 2 pages (excluding costs outlines) with me through the Masters Administration Office on or before June 30, 2017.

Released: May 17, 2017

Master M.P. McGraw

SCHEDULE “A”

Court File No. CV-15-521400

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID AXELROD and CHAD-WICK CONSTRUCTION MANAGEMENT INC. Plaintiffs

• and -

PRIMONT MANAGEMENT CORPORATION, PRIMONT HOMES (HARMONY) INC., PRIMONT HOMES (CASTLEMORE) INC., PRIMONT HOMES (MAPLE) INC., PRIMONT HOMES (MAJOR MACK) INC. Defendants

A N D B E T W E E N:

PRIMONT MANAGEMENT CORPORATION, PRIMONT HOMES (HARMONY) INC., PRIMONT HOMES (CASTLEMORE) INC., PRIMONT HOMES (MAPLE) INC., PRIMONT HOMES (MAJOR MACK) INC. Plaintiffs by Counterclaim

• and -

DAVID AXELROD and CHAD-WICK CONSTRUCTION MANAGEMENT INC., KERSDALE INVESTMENTS INC. Defendants by Counterclaim

CHART OF UNDERTAKINGS, REFUSALS AND QUESTIONS TAKEN UNDER ADVISEMENT FROM THE EXAMINATION FOR DISCOVERY OF DAVID AXELROD , CONDUCTED ON JULY 13, 2015.

UNDERTAKINGS No. Ques. No. Page No. Specific undertaking Answer Comments

1. 32 6
2. 62 10
3. 200 - 202 32 - 33 To advise when work at the Rothbury site ended, if Chad-wick continued to be contracted with Primont or if Mr. Axelrod continued as an employee of Primont Mr. Axelrod was never personally contracted by Primont. Chad-Wick construction was contracted in December, 2010. The Torthbury projected ended approximately September 30 and Chad-Wich was brought back to the Harmony Site in December, 2011 Updated Answer on April 7, 2017: 2011 When in 2011 did the work at the Rothbury site end?
5. 272 46 To advise when Mr. Axelrod received plans from architect for Estrin project Permit plans were received April, 2015. Updated Answer on April 7, 2017: A complete set of proposed drawings for final budget purposes was received February 15, 2015. When were the plans (all plans) received from the architect?
6. 279 48 To produce Mr. Axelrod's personal tax returns from 2010 to present Please see attached at Tab A Mr. Axelrod’s personal tax returns for 2010 and 2011. There are no further tax returns that have been filed at this time. Updated Answer on April 7, 2017: These are the only tax returns Mr. Axelrod has filed during the relevant period. Please See Tab G of the Plaintiff’s Answers to Undertakings, where there is an Invoice from Miller Bernstein LLP, dated December 14, 2015 for the preparation of Income Tax Statements for 2014 year end. No explanation has been provided.
7. 302 54 To provide invoices of costs and indicate revenue or profits of any of the replacement jobs Chad-wick / Mr. Axelrod had. • Please see attached at Tab B Bernard Invoice • Cohen’s paid the trades directly and paid Mr. Axelrod $6,000.00 cash to manage the project. There is no available documentation as the trades were paid directly by the property owner • Delhi/Estrin-project was a fixed management fee ($60,000.00) and Mr. Axelrod received a $10,000.00 deposit in December, 2014. The project did not start until May 29, 2015 and Mr. Axelrod received another $5,000.00 in June, 2015. Please see attached at Tab C copies of the invoices paid to Mr. Axelrod Updated Answer on April 7, 2017: There are no invoices in Mr. Axelrod’s possession or control. All costs were paid directly by the homeowner. Have there been inquiries made to the homeowner for copies of invoices and purchases?
11. 433 76 To provide names and contact information of trades used on Kersdale job that were not doing work for Primont Please see attached at Tab E spreadsheet of Kersdale trades with notations indicting which trades were doing work for Primont. Please also see attached at Tab E document with contact information for trades used on Kersdale job that were not doing work for Primont. Updated Answer on April 7, 2017: Mr. Axelrod confirms that this is the only list he has for the trades and contact details of the trades on the Kersdale project. No list has been provided for the trades on the Kersdale job that were not doing work for Primont.
12. 440 78
13. 494 - 495 89 To provide a list of the trades, subcontractors, and suppliers that were Primont trades, subcontractors, and suppliers that did work on other Chad-wick projects. Please see attached at Tab E . This is the only record of trades that Mr. Axelrod has in his possession or control. Updated Answer on April 7, 2017: Mr. Axelrod is not able to prepare a further list as he has no additional record of the trades used on other projects beyond what has already been provided. Answer not Complete. A list was requested for all trades, subcontractors for all projects.
15. 518 95 - 96 To produce any receipts for gas purchased personally or through Chad-wick with respect to the Primont vehicle from March to November, 2014 Mr. Axelrod has searched for these documents and has found none. These receipts were not retained. Updated Answer on April 7, 2017: The undertaking refers only to receipts for gas purchased. Mr. Axelrod has produced his bank statements for this period. Do the entries of purchases from Petro-Canada in the Bank Statement(s) indicate the gas purchased for the Primont vehicle?
17. 566 105 To advise if Mr. Axelrod was paid a fee for 10 Church Street and to provide the names of the trades for that project Mr. Axelrod was not paid a fee for 10 Church Street. There is no record of trades for that project. The trades were either paid directly by the owner of the property or by Mr. Axelrod by way of personal cheque. Updated Answer on April 7, 2017: Wayne McDougall – 705-331-5466, Kitchen, trim and flooring installer Mike Mathews – 416-902-2378, Tile installer Elivir – 416-897-8571 – Drywall installer No copies of cheques have been provided.
21. 717 129 - 130 To produce any delivery bills, receipts for pickup, or packing slips for any Chad-wick project from Central Fairbank Lumber Mr. Axelrod has does not have any such documents in his possession or control. Updated Answer on April 7, 2017: We have written to Central Fairbank Lumber to request these documents-please see attached letter. We will deliver these documents to counsel as soon as they are available. The Letter attached is dated March 28, 2017, has any follow-ups been made since then?
22. 751 135 To produce any written communication with Connaught owner regarding termination or withdrawal from the project Mr. Axelrod has searched for these documents and has found none . Mr. Axlerod no longer has in his possession or control any documentation (including copies of communications) regarding the Connaught Ave project. Updated Answer on April 7, 2017: Mr. Axelrod does not usually retain copies of written communications in respect of projects that have been terminated. Please see 8 above. Has the Connaught owner been contacted to request documentation regarding termination or withdrawal from the project?
25. 864 155 To provide particulars of claim for general and special damages in regards to paragraph 1(a) No other particulars other than those set out in the claim. Updated Answer on April 7, 2017: The particulars of the claim for general and special damages are outlined in the statement of claim. Not answered. Either provide particulars or withdraw the claim.
26. 864 156 To advise what facts are relied upon for claim of punitive, aggravated, and exemplary damages in regards to paragraph 1(c) Mr. Axelrod please that the manner of the termination gives rise to punitive and/or aggravated damages, including the allegation of cause for termination; the invocation and suggestion that Mr. Axelrod was in competition with Primont; the communications made by Primont post-termination to other builders, trades and supplies; the breach of Mr. Axelrod’s reasonable expectation of privacy (i.e., by Primont acquiring invoices from third party supplies that were not addressed to it). Updated Answer on April 7, 2017: This undertaking has been answered sufficiently. Not completed. What is it about the “manner of termination”? What “communications” with “other builders, trades, suppliers”? What breach of privacy? Examples do not help...provide full particulars and all the facts and evidence.

UNDER ADVISEMENTS No. Ques. No. Page No. Specific Under Advisement Answer or precise reason for not so doing Comments

1. 86 14 To produce Chad’s superintendent log Not relevant to issues in dispute Not Answered
2. 102 17 To produce records that show the number of hours Chad put in for the Kersdale project. Please see attached at Tab E Updated Answer on April 7, 2017: Mr. Axelrod did not keep track of his personal hours on this project as he was not required to do so. Answer is not Complete. Mr. Axelrod has not provided the hours of Chad for the Kersdale project, but rather contacts for trades.
3. 105 18 To produce any invoices and payroll records maintained by Kersdale or any other records maintained by Kersdale that shows the number of hours that Chad put in for Kersdale. The only record Mr. Axelrod has in his possession or control of the hours he put in for the Kersdale project is attached at Tab E Same as above.
6. 279 48 To produce financial statements and tax returns of Chad-wick from 2010 to present Please see attached at Tab F Chad-Wick Financial Statements for 2010 and 2011. There are no Chad-Wick Financial Statements available for 2013, 2014 or 2015. Only the financial statements and tax returns of Chad-wick from 2010 and 2011 were provided. See UT #6.
7. 279 49 To produce financial statements and tax returns of Chad-wick from November 1, 2014 to present Please see above at 6. Same as above.
8. 279 49 To produce financial records including ledgers for Chad-wick, if there are no financial statements or tax returns during the relevant period (December, 2010 to present) Please see 6 above. There are no further financial records available for Chad-Wick from December 2010 to the present. Same as above.
9. 279 50 To produce Kersdale Investments bank statements from March, 2014 to present Not relevant to issues in dispute Not Answered
10. 280 50 To produce financial statements and tax returns for Kersdale Investments from March 20, 2014 to present Not relevant to issues in dispute Not Answered
11. 306 55 To produce all bids submitted to perform work on other projects from November 28, 2014 to present Mr. Axelrod completed work for people whom he personally knew. As such, there was no formal bidding process for these projects. Mr. Axelrod produced a budget based on architectural drawings and a management fee. Updated Answer on April 7, 2017: Mr. Axelrod did not submit any proposals or budgets for any other projects other than 234 Delhi. The 234 Delhi is included in the Construction Agreement attached. No bids provided, as work was done through personal referrals. Produce quote, budget whether formal or informal. Only the Construction agreement for 234 Delhi has been produced.
12. 610 112 To produce invoices, quotations or any other communications received from any trades with respect to Kersdale or any other project worked on Please see attached at Tab G copies of invoices paid for the Kersdale Project. Updated Answer on April 7, 2017: Mr. Axelrod has produced all the documents he has in his possession or control. Answer not Complete. As only copies of invoices were provided for the Kersdale Project.
13. 822 147 To produce the invoices paid to all other trades and suppliers with respect to the other work that Chad-wick performed from 2010 forward Chad-Wick was not a contractor of record on any other projects. Chad-Wick was strickly a financial partner. Chad-Wick did not pay any trades or suppliers with respect to work on other projects from 2010 forward. Updated Answer on April 7, 2017: Mr. Axelrod has produced the only invoices he has for these projects. All trade invoices were paid directly by the owners of the projects. Answer not Complete. Mr. Axelrod claims that he does not have any other records, but if trades paid through another entity, then we need to know who the payor was. If controlled by Axelrod/Chadwick, then we need disclosure or to bring a Rule 30.10 to obtain disclosure.
14. 864 154 To provide witness statements or summaries of anticipated evidence of witnesses To be delivered in advance of trial. Updated Answer on April 7, 2017: Witness statements do not need to be produced at this time. Not Completed. Axelrod has set the matter down for trial and seeks a Trial date.

REFUSALS No. Ques. No. Page No. Specific Refusal Answer or precise reason for not so doing Comments

1. 117 19 - 20 To produce cell phone records of Mr. Axelrod for the period when he was employed at Primont Overly broad; not relevant Refusal maintained. Cell phone records will show who he was speaking with, texting and/or emailing while he was supposed to be a full-time super for Primont.
2. 120 20 To provide authorization to obtain from Rogers the cell phone records of Mr. Axelrod Overly broad; not relevant Refusal maintained. As above #1.
4. 306 54 To answer who Mr. Axelrod / Chad-wick is currently pricing projects for Updated Answer on April 7, 2017: Not relevant-relevant only until July 31, 2014. Any information regarding who Mr. Axelrod is currently pricing projects for is irrelevant. Refusal maintained. Needed for period starting from termination to end of “alleged notice period”.
5. 439 77 To provide access to Chad-wick's server to see the emails that Mr. Axelrod / Chad-wick sent and received from the trades with respect to the Kersdale project. Not relevant Refusal maintained. Axelrod produced no emails from and to trades to show email traffic with trades on other projects while he was supposed to be a full-time super for Primont.
7. 578 107 To advise if Mr. Bloom entered into a contract with some entity for the renovation Not relevant. Refusal maintained. Bloom was the partner in Kersdale and likely contracted with Chad-wick in some capacity while still a site-super for Primont.
8. 591 108 To advise who from the Eversfield group of investors would have been in contact with Icon Plumbing Not relevant. Refusal maintained. Icon was a Primont trade and need to know if Icon was directed by Axelrod in completion to Primont or whether Icon was directed by Eversfield.
9. 874 158 To provide access to Mr. Axelrod's cell phone to obtain any copies of any emails sent and received. Overly broad ; not relevant Refusal maintained. As per #1, 2 and 5 as Axelrod has produced no email or text traffic with the trades he was using on other jobs while being paid to be a full-time site super for Primont.
10. 874 158 To provide consent to contact Mr. Axelrod’s cell phone service provider to get access to the emails sent and received on Mr. Axelrod’s cell phone Overly broad; not relevant Refusal maintained. As per #9.