Court File and Parties
COURT FILE NO.: 07-CV-336695 (TORONTO) MOTION HEARD: JANUARY 13, 2017 and MAY 5, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gus Calderone
v.
Bruno Vatri, Virgil Vatri, The Squires Apartments Limited, The Squires Apartments (West) Limited, Travit Development Company Limited, Lenran Realty Limited, Joseph Calderone, The Estate of Frank Calderone by its Estate Trustees John Calderone and Gus Paul Calderone, The Estate of Norman H. Solmon by its Estate Trustee Melvin Solmon, Albert Melchoir and the Estate of James Cirillo by its Estate Trustee Violet Cirillo
BEFORE: MASTER R.A. MUIR
COUNSEL: Michael Tamblyn and Elissa Ferrari for the Estate of Frank Calderone Steven J. Weisz and Kiran Patel for Joseph Calderone Emilio Bisceglia for Gus John Calderone in Action No. CV-13-494915 (Toronto) David Hager for the non-party David Young Lucas Lung for the non-party PricewaterhouseCoopers LLP Dan MacDonald for the non-party McMillan LLP
REASONS FOR DECISION
1This is a family dispute. In the late 1940’s Frank Calderone (“Frank”) along with his brothers Gus V. Calderone (“Gus Sr.”) and Joseph Calderone (“Joe”) started a retail shoe business. The business was very successful. It grew and prospered. By 1990 the Calderone shoe business operated out of more than eighty stores across Canada.
2The Calderone brothers were involved in other joint ventures as well. At some point in the 1950’s the brothers formed a joint business venture which the parties have referred to on this motion as the Calderone Brothers Syndicate (“CBS”). CBS was operated separately from the shoe business. The three brothers agreed to share in the profits of CBS on an equal basis. CBS appears to have been managed by the brothers in a rather informal manner. Most of the brothers’ discussions and decisions were made over lunch meetings. No minutes or notes were taken. It does not appear that CBS operated with any formal reporting or record keeping requirements.
3CBS’ chief line of business involved the purchase, management, occasional development and sale of various properties in and around the greater Toronto area. For the purposes of this motion, the moving party, The Estate of Frank Calderone (the “Estate”) has alleged, as part of a proposed amended crossclaim, that several corporations and properties were part of the CBS investment portfolio. The Estate claims a one third interest in those alleged investments. Those corporations and properties have been identified by the Estate as:
(a) Annovator Investments Inc. (“Annovator”); (b) Annagem Investments Limited (“Annagem”); (c) Marvat Holdings Limited (“Marvat”); (d) Caldene Limited (“Caldene”); (e) New Alliance Investments Limited (“New Alliance”); (f) Fernstaff Developments Limited (“Fernstaff”); (g) M.V.C. Investments Ltd. (“MVC”); (h) Tercil Developments Limited; (i) Travit Development Company Limited; (j) Boldco Group Inc. (“Boldco”); (k) Courtney Square Partnership (“Courtney”); (l) Courten Corporation; (m) Devcal Developments Inc.; (n) Calderone Management Services Ltd.; (o) 1020 Brevik Place Mississauga; (p) 705 Surrey Lane Burlington – Georgian Apartments; and, (q) 7150 Tranmere Drive Mississauga.
4Frank passed away in 1992. His estate was initially represented by his spouse Margaret Calderone (“Margaret”). Unfortunately, Margaret passed away while this motion was pending. Frank’s estate is now represented by his sons, John Calderone (“John”) and Gus Paul Calderone (“Gus Paul”) as estate trustees.
5Gus Sr. passed away in 2015. His interest in these proceedings has been assigned to his son, Gus John Calderone (“Gus John”).
6Joe is currently 84 years old.
7This action was started by Gus Sr. in 2007. Gus Sr. sought, among other things, a declaration dissolving CBS along with other related relief. The Estate delivered its statement of defence, counterclaim and crossclaim on or about October 21, 2008. The Estate’s crossclaim was brought against Joe but only makes a claim against Joe in respect of two “businesses” identified in the pleadings as “Squires” and “Squires West”. These businesses were the focus of the claim initiated by Gus Sr. They consisted of two residential apartment buildings, which allegedly formed at least a portion of the assets of CBS.
8Many of the issues in this action were settled by the parties in July 2011. Pursuant to the minutes of settlement, the Squires issues were resolved. The minutes also contained a provision that the settlement be conditional upon Joe providing an accounting and documentation relating to the disposition of any other assets of CBS. This accounting was intended to establish on a reasonable basis, and to the satisfaction of the Estate and Gus Sr., that the disposition of any such other assets was in compliance with Joe’s fiduciary duties to his partners and that the sole remaining assets of CBS at the time were Squires and Squires West. This accounting and documentation was provided on October 14, 2011 and further documents and information appear to have been provided in December 2011. If Gus Sr. and the Estate were not satisfied with this disclosure, they were required to give notice to Joe of their intention to proceed with any such other claims by December 31, 2011.
9It is not disputed that Gus Sr. and The Estate gave the required notice. The Estate gave its notice by way of a letter from its counsel dated December 19, 2011. The letter stated that the Estate was keeping open its claim against Joe and intended to advance the claim unless a satisfactory accounting was received. Gus Sr. preserved his rights to continue with his claims by way of a letter from his lawyer dated December 30, 2011. In that letter, Gus Sr.’s lawyer stated, among other things, that Joe was “in flagrant breach of his duty to his partners” and had “diverted money” from CBS.
10In fact, Gus Sr. commenced a separate action against Joe on December 16, 2013 (the “Gus Senior Action”). That action seeks, among other things, a full accounting of the operation of CBS and references several of the corporations and properties the Estate has identified on this motion. Joe has defended that action and an order has been made that it be tried with or immediately following the Estate’s existing crossclaim. In addition, joint examinations have taken place. As matters presently stand, only the Gus Sr. Action and the Estate’s crossclaim against Joe remain extant. The remaining claims in this action have been dismissed or otherwise resolved.
LEAVE TO AMEND THE CROSSCLAIM
11Despite giving the required notice of its intention to proceed with its claims, the Estate did not commence a new proceeding. Instead, the Estate waited until May 19, 2016 to advise Joe that it intended to amend its crossclaim. The Estate’s notice of motion and proposed amended pleading was not served until August 5, 2016. Leave to deliver this amended crossclaim is the primary relief sought by the Estate on this motion. Joe is opposed.
12The parties are in general agreement with respect to the test to be applied on a motion to amend a pleading. Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) allows the court to grant leave to amend a pleading at any stage of a proceeding on such terms as are just. The language of the Rule is mandatory. The court shall grant leave at any stage of a proceeding unless prejudice would result to the responding party that could not be compensated for by costs or an adjournment. Of course, proposed amendments must disclose a cause of action and must otherwise comply with the rules of pleading. However, it is important to note that a pleading may not be amended so as to relieve against the operation of a limitation period. See Golic v. ING Insurance Co. of Canada, 2008 ONSC 69502, [2008] OJ No. 5408 (SCJ) at paragraphs 16 and 17; affirmed 2009 ONCA 836. [1] The Court of Appeal has also made it very clear that the passing of a limitation period is fatal to a motion to amend a pleading where a new party or cause of action is sought to be added. The common law doctrine of special circumstances no longer applies. See Joseph v. Paramount Canada's Wonderland, 2008 ONCA 469 at paragraphs 23 to 25. As Justice Rouleau stated in Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3 at paragraph 24:
In my view, rule 26.01 does not contemplate the addition of unrelated statute-barred claims by way of amendment to an existing statement of claim. Conceptually, this should be treated no differently than the issuance of a new and separate statement of claim that advances a statute-barred claim.
13In my view, the Estate’s proposed amended pleading clearly seeks to advance new causes of action not previously pleaded. The theme of the proposed amendments is fraud. The Estate is alleging that Joe made fraudulent representations and engaged in fraudulent concealment and other conduct over a period of many years and involving many CBS properties and investments. The crossclaim, as it currently stands, deals with the improper distribution of revenues and only with respect to two investments. There is no mention of fraud in the current pleading. None of the material facts that could support a finding of fraud are included. Nor does the proposed crossclaim simply provide particulars of damages or causes of action already pleaded. It makes very serious allegations of fraud for the very first time.
14The key question for the court is whether substantially all of the material facts giving rise to the new cause of action were previously pleaded or whether new facts are sought to be added and relied upon in support of a new cause of action. Clearly, the required material facts were not originally pleaded in this case. The proposed amendments are extensive and completely re-cast the crossclaim. Many new facts are being alleged for the first time. See Ascent Inc. v. Fox 40 International Inc., [2009] OJ No. 2964 (SCJ – Master) at paragraph 3. Moreover, the requirement for previously pleading the necessary material facts is even more pronounced when allegations of fraud are being advanced. See Ascent Inc. at paragraph 28.
15Section 5(2) of the Limitations Act, 2002, SO 2002, c 24, Sch. B (the “Limitations Act”) provides that a limitation period begins to run on the date the error or omission occurred unless the contrary is proved. The onus to prove discoverability is on the party seeking the amendments. In this case, the Estate must provide a reasonable explanation as to why the new claims could not have been discovered within the limitation period with the exercise of reasonable diligence. See Slack v. Bednar, 2014 ONSC 3672 at paragraph 40 and Jagosky v. Huntsville (Town), 2010 ONSC 4590 at paragraphs 22 to 26; affirmed 2011 ONCA 324.
16I accept, for the purposes of this motion, that the Estate has been at a historical disadvantage in terms of discovering and marshalling the facts and evidence to support the fraud claims it now seeks to advance. I am satisfied from the evidence on this motion that Joe was mainly in charge of the operations of CBS and assumed the responsibility for reporting to his brothers. It appears that for many years, Gus Sr. and Frank, and later Frank’s estate, simply deferred to Joe and assumed that he was operating CBS fairly and honestly. Under this scenario, they would have no way of knowing, or even any reason to suspect, that they were allegedly being defrauded.
17However, all of that began change, at the very latest, when this litigation was started in 2007. Gus Sr. and the Estate made claims against Joe. They began to suspect that they were not being given the full story. In fact, the minutes of settlement entered into on July 14, 2011 were specifically made conditional on Joe providing the Estate and Gus Sr. with documentation establishing on a reasonable basis that his disposition of the assets of CBS was in compliance with his fiduciary duties to his partners. They must have suspected something.
18Information was provided by Joe and presumably reviewed by the parties and their lawyers. It appears that the Estate and Gus Sr. were not satisfied with the information provided as they both reserved their rights, pursuant to the minutes of settlement, to continue with claims against Joe.
19The letter from the lawyer for Gus Sr. dated December 30, 2011 stated that Joe was in “flagrant breach of his duty to his partners” and had “diverted money”. That letter was copied to the lawyer who was acting for the Estate at the time (not Mr. Tamblyn). Gus Sr. ultimately started the Gus Sr. Action against Joe on December 16, 2013, greatly expanding the allegations he had made in the statement of claim in this action and alleging that Joe improperly withheld or diverted assets of CBS.
20It is also clear from correspondence sent by Joe’s lawyer to the lawyer for the Estate on October 14, 2011 and December 23 and 28, 2011 that the Estate had serious concerns about Joe’s operation of CBS. The opening paragraph of the October 14, 2011 letter states that the letter is responding to inquiries made by the Estate about the disposition of assets of CBS. It appears from the letter that the Estate raised specific issues and, in particular, sought information about Caldene, Marvat, Annovator, Annagem, MVC and New Alliance, at the very least. The Estate was apparently not satisfied with this information and on December 19, 2011 sent its letter advising that it reserved its rights to continue with its claims against Joe.
21In my view, the evidence on this motion, as set out above, demonstrates that by December 2011 at the latest, the Estate was in possession of information that gave rise to concerns on its part that Joe may not have been operating CBS in a fair and honest fashion and may have breached his duties to his partners. In my view, as of December 2011, the Estate knew enough of the facts to realize that further investigation was necessary. At this point, the Estate was required to exercise a reasonable degree of diligence in order to “discover” the claims it now seeks to advance in its proposed amended pleading.
22What did the Estate do immediately after December 2011 in order to investigate its concerns about the operation of CBS? Very little it appears. Most of the documents and information the Estate now relies upon in support of these new allegations were not located until 2015 and 2016. Some documents were found by John in his garage. Others were found by Gus Paul in his basement. Additional documents were obtained from lawyers who had previously acted for CBS.
23In my view, all of this information was easily discoverable. The Estate representatives just had to look for it among their own possessions or make simple requests of the CBS lawyers. It is simply not sufficient for the Estate to discharge its burden when it comes to discoverability and due diligence by stating that it did not find the documents until 2015 even though they were in their garage and basement all along. In fact, the actions of the Estate and its new lawyers in 2015 and 2016 in uncovering the facts it now seeks to plead, constitute very compelling evidence of the Estate’s lack of diligence immediately after December 2011.
24The Estate had serious concerns about Joe and CBS in December 2011 but did nothing about those concerns until documents were stumbled upon while cleaning a garage in the spring of 2015. This evidence demonstrates that all of the information the Estate needed to draft its amended pleading could have been discovered with the exercise of a modest degree of diligence within a few months of December 2011. Instead, it appears that the Estate and its representatives did little or nothing until 2015.
25In its factum, the Estate states that “after extensive efforts, the Estate of Frank Calderone has recently been able to uncover at least part of the truth regarding the scope and affairs of CBS and the profits derived therefrom, which were fraudulently concealed by Joseph Calderone”. That may be true. However, there is absolutely no evidence why those “extensive efforts” could not have been undertaken in early 2012, at a time when the Estate was represented by counsel and was clearly concerned about Joe’s management and operation of CBS.
26I do not accept the Estate’s argument that Joe’s alleged fraudulent concealment has served to toll the limitation period applicable to these claims. First, there is no evidence of fraudulent concealment after December 2011. Joe provided the accounting contemplated by the minutes of settlement. If the Estate was not content with that information it could have taken steps to follow up or conduct its own investigations. Second, the doctrine of fraudulent concealment will only toll a limitation period until the time the party making the claim can reasonably discover its cause of action. See M. (K.) v. M. (H.), [1992] 3 SCR 6 at paragraph 61. Fraudulent concealment is only available where the party making the allegation exercised reasonable diligence to discover the alleged fraud. See 1095909 Ontario Inc. v. Westmount-Keele Ltd., 2016 ONSC 2434 at paragraph 37. As I have stated above, the Estate failed to exercise reasonable diligence to discover its new claims immediately after December 2011. It is therefore unable to rely on the doctrine of fraudulent concealment to extend the limitation period.
27One further point must be addressed. A great deal of the evidence and submissions on this motion dealt with the merits of the Estate’s proposed amendments. I appreciate that the Estate and its representatives hold very strong views about Joe’s alleged conduct and wished to make those views clear to the court. However, the merits of proposed amendments are not a factor to consider on a motion to amend a pleading. The allegations are accepted as true and provable for the purpose of the motion to amend. There is no need for the court to consider the merits of the proposed new claims. See Ontario (Securities Commission) v. McLaughlin, [2009] OJ No. 1993 (Div Ct) at paragraph 6. See also the decision of the Court of Appeal in Schembri v. Way, 2012 ONCA 620.
28The Estate could have discovered the claims it now seeks to advance through the exercise of reasonable diligence within several months after December 2011. It did not serve its notice of motion seeking leave to amend its crossclaim until approximately four years later on August 5, 2016. In my view, the claims the Estate now seeks to advance by way of amendment are statute barred. The Estate’s motion for leave to amend its crossclaim is dismissed.
PRODUCTION FROM NON-PARTIES
29The Estate seeks the production of documents from two non-parties.
30The first is a request for the production of certain documents in the possession of PricewaterhouseCoopers LLP (“PWC”). These documents are apparently comprised of 57 paper files involving four corporations: Annagem, Fernstaff, Boldco and Courtney.
31The Estate has reached an agreement with PWC regarding these documents. PWC will provide the documents within 30 days of a court order requiring such production. The Estate will pay PWC for its reasonable costs of doing so up to a maximum of $25,000.00, plus HST, which costs include PWC’s legal expenses. The parties and their lawyers will undertake not to use the documents for any purpose other than in connection with this action (and presumably the Gus Sr. Action). Joe takes no position on this request.
32I am satisfied that the documents in question are relevant to material issues in these actions. Although I have dismissed the Estate’s motion to amend on the basis of an expired limitation period, it does appear that the Gus Sr. Action includes a broad claim for an accounting of all of the financial transactions involving CBS. There is at least some evidence on this motion that Annagem, Fernstaff, Boldco and Courtney may have been CBS investments. The Gus Sr. Action and the Estate’s crossclaim are proceeding in tandem and joint discoveries have taken place. I am also satisfied that it would be unfair for the parties to proceed to trial without these documents. It appears that PWC is the only source for the documents.
33I am concerned that none of Annagem, Fernstaff, Boldco and Courtney were served with the Estate’s motion materials seeking this relief. They would appear to be persons who may be affected by the order sought and notice ought to have been given. However, it appears that Annagem, Fernstaff and Courtney no longer exist. Boldco does continue to carry on business and although a representative from a law firm acting for Boldco appears to have been present at the first return date of this motion, she made no submissions on its behalf. Boldco was obviously aware of this motion but chose not to take a position or seek leave of the court to do so.
34I am therefore ordering that the Annagem, Fernstaff and Courtney documents in the possession of PWC be produced in accordance with the agreement between the Estate and PWC. The Boldco files, however, shall not be produced until 30 days after a copy of these reasons for decision, and a copy of the formal order from this motion, have been served on counsel for Boldco and Mr. Virgil Vatri.
35I am not prepared to make an order for payment into court of the so-called Boldco funds as requested in the Estate’s written submissions dated February 1, 2017. If the parties are unable to agree on the disposition of those funds, a motion for payment into court should be brought on notice to all affected parties and on proper evidence.
36The second request for the production of documents from a non-party seeks the production of various CBS files in the possession of McMillan LLP. Joe does not object to the production of the McMillan LLP files in respect of CBS. However, he does have concerns about whether the files may include other documents or information relating to him personally or businesses he owned separate and apart from his brothers. At the last return date for this motion, the parties and their lawyers were attempting to resolve this issue. Joe and his lawyers were hoping to review the McMillan LLP files to determine whether he intended to make a claim of privilege over any of the subject documents. In my view, it is premature to rule on this request until this review has been completed and the court has been advised of Joe’s position. This relief is adjourned to be determined by me at a future motion date or by way of a case conference.
EXAMINATION FOR DISCOVERY OF DAVID YOUNG
37The Estate seeks leave to conduct an examination for discovery of a non-party, Mr. David Young. Mr. Young is a lawyer. He appears to have provided legal advice to CBS in the 1990’s. His files are now in the possession of McMillan LLP and are the documents the Estate has requested from McMillan LLP. Mr. Young may very well have information relevant to matters in issue in these proceedings. His evidence may be particularly helpful given that Frank and Gus Sr. are deceased and in view of Joe’s advanced age.
38Mr. Young does not object to being examined. He is understandably concerned about privilege issues and wants his costs to be paid. Joe does not take any position in respect of this issue but is also concerned with privilege. Joe is content with Mr. Young answering questions about his work for CBS but is unable to recall whether Mr. Young performed any work for him personally. He objects to Mr. Young being asked to provide information that may be subject to lawyer-client privilege between Joe and Mr. Young.
39The Estate appears to be asking the court to make some form of pre-examination blanket order requiring Mr. Young to answer all questions he is asked without any consideration of lawyer-client privilege. I am not prepared to make such an order. First, the court is not aware of the current status of the review of the McMillan LLP documents. It may be that all of the documents and the work performed by Mr. Young was on behalf of CBS or the three brothers as a group. In that case, there would be no claim of privilege. Second, lawyer-client privilege is a fundamental element of our system of justice. It should not be cast aside lightly. In my view, any determination of a claim of lawyer-client privilege must be made on a specific case by case basis and only after the claim has been made. This would include any exception to privilege on the basis of the future fraud and crime exception relied upon by the Estate. Any dispute over privilege can then be resolved by way of a motion to the court.
40I am therefore granting leave for the Estate to examine Mr. Young for discovery on a date to be determined by the parties in consultation with Mr. Young’s counsel.
41Mr. Young has no interest in this proceeding. He is being brought into this matter at the request of another. While he is more than willing to cooperate, I agree that he is not the one who should have to pay for his cooperation. Mr. Young is entitled to have his costs paid. He is also entitled to have his counsel present at the examination. The Estate shall pay Mr. Young’s costs associated with this motion and this examination. If the Estate and Mr. Young are unable to agree on the amount of those costs they may contact me to schedule a case conference.
42Counsel for Joe and Gus John shall be entitled to attend the examination and may object to any questions being answered on the basis that the communication in question is subject to lawyer-client privilege.
43Any documents ultimately received from McMillan LLP shall be provided to counsel for Mr. Young at least 14 days prior to his examination.
REFUSALS
44The Estate also seeks answers to a number of questions refused on Joe’s various examinations. In determining the issues on the refusals portion of this motion, I have applied the relevance test set out in Rules 30.03 and 31.06. I have also considered the proportionality requirements of Rule 29.2.03. I am also mindful of the principles relating to the scope of examinations for discovery as summarized in Ontario v. Rothmans Inc., 2011 ONSC 2504 (SCJ) at paragraph 129; leave to appeal refused, 2011 ONSC 3685 (Div Ct).
45The Estate’s refusals chart is found at Tab E of the Estate’s factum. The first three refusals in issue relate to the production of additional documents relating to Caldene and Marvat. I am satisfied that these questions have been answered. Joe has repeatedly confirmed in writing from his counsel, and under oath in his affidavit filed on this motion, that he has produced all documents in his possession that relate to these corporations. He has made inquiries of others and relayed that information to counsel for the Estate. He has nothing more to produce. The McMillan LLP documents may relate to these corporations and technically those documents may be within the power of Joe to produce. However, they will presumably be produced by McMillan LLP once the file review is complete and any privilege issues are resolved or determined by the court. Nothing further is required in respect of these questions.
46The next three refusals seek production of Joe’s personal income tax returns. I see no relevance to this request. Joe has advised that his income tax returns do not separate CBS income from other income. They would be of no assistance in determining distributions of CBS revenue. I view this request as a fishing expedition. These questions need not be answered.
47Refusal No. 7 has been answered. This question seeks clarification with respect to a document produced by Gus Sr. This question was answered on January 12, 2017. Joe does not recognize the document in question and is unable to confirm the accuracy of the numbers set out in the document. Nothing further is required.
48Refusals No. 8 and No. 13 relate to PWC documents. They are covered by the order I have made above with respect to the Estate’s Rule 30.10 motion. Nothing further is required.
49Refusals No. 9 and No. 10 are a request for files kept by Mr. Marc Flynn. Mr. Flynn is a lawyer who formerly worked with Blake, Cassels & Graydon LLP. They are Joe’s lawyers of record in connection with this proceeding. The files in question relate to Mr. Flynn’s work on behalf of Joe in respect of this very litigation. They are obviously protected by lawyer-client privilege. These questions need not be answered.
50Refusals No. 11 and No. 12 seek to know whether Joe continues to manage two properties formerly owned by Annovator. Joe purported to answer these questions by advising that the properties were sold by Annovator to two corporations one of which is owned by Joe. This does not, however, answer the question of whether Joe continues to manage the properties. Joe shall answer these questions by advising the Estate whether he continues to manage these properties and if not when he ceased to manage these properties. This answer shall be provided within 30 days.
SUPPLEMENTARY AFFIDAVIT OF DOCUMENTS
51The Estate asks for an order that Joe serve a supplementary affidavit of documents. As set out above, Joe has repeatedly confirmed in writing from his counsel, and in sworn evidence filed in response to this motion, that he has no further relevant documents in his possession, control or power. He makes this statement very clearly in his affidavit sworn November 3, 2016. He was cross-examined on that affidavit. A request for additional production cannot be based on speculation, intuition or guesswork. There must be some evidence of the actual existence of allegedly missing documents. See Bow Helicopters v. Textron Canada Ltd., [1981] OJ No. 2265 (SC – Master) at paragraphs 7 to 9. I see no such evidence in the material filed on this motion. Joe has made significant production to date. The fact that documents may be missing is not surprising given the vintage of the claims being made. The Estate simply argued that Joe was in control. There must be more. This is not sufficient. A supplementary affidavit of documents is not required.
FURTHER EXAMINATION FOR DISCOVERY OF JOE
52The Estate also seeks an order requiring Joe to attend at a further examination for discovery. In my view, no further examination is required. Given that I have dismissed the Estate’s motion for leave to amend its crossclaim there will be no additional pleadings to be examined upon. In any event, many of the issues raised in the proposed amended crossclaim were covered on Joe’s cross-examination on November 29, 2016. Joe has agreed that his cross-examination can be treated as an examination for discovery for the purposes of trial. Moreover, Joe was previously examined for discovery on May 15, 2014 and April 15, 2015. Follow up examinations were held on December 8, 2015. In my view, the examinations to date are more than adequate. They have greatly exceed the permitted seven hours under the Rules. The one refusal I have ordered to be answered, and the question answered after this motion was brought, are not significant enough to warrant further examination. No further attendance is required. The cross-examination of Joe held November 29, 2016 shall be treated as an examination for discovery for the purposes of trial.
CASE MANAGEMENT
53The Estate requests that this action be assigned to case management. The other parties are not opposed. This family dispute has been pending for many years. It needs to be brought to its conclusion as soon as possible. In my view, the parties will benefit from case management. I am hereby assigning this action to case management to be case managed by me pursuant to Rule 77. All interlocutory motions within the jurisdiction of the master will be heard by me. As the future conduct of this proceeding will be supervised by me, no set down deadline is required at this time. The registrar shall not dismiss this action, or Action No. CV-13-494915, without further order of the court.
ORDER
54The court therefore orders as follows:
(a) The Estate’s motion for leave to amend its crossclaim is dismissed; (b) PWC shall produce to counsel for the Estate the 57 paper files referred to at paragraph 11 of the affidavit of Lisa Malloy sworn January 3, 2017; (c) The files in relation to Annagem, Fernstaff and Courtney shall be produced within 30 days of the date of this order; (d) The files in relation to Boldco shall be produced 30 days after the date of service on Boldco of a copy of these reasons for decision and a copy of the formal order from this motion; (e) The Estate shall pay PWC for its reasonable costs of producing these documents up to a maximum of $25,000.00 plus HST, which costs include PWC’s legal expenses; (f) The parties and their lawyers shall undertake not to use the PWC documents for any purpose other than in connection with this action and action CV-13-494915; (g) The relief in respect of the McMillan LLP documents is adjourned to be determined by me at future motion hearing or by way of a case conference; (h) The Estate is hereby granted leave to examine Mr. Young for discovery on a date to be determined by the parties in consultation with Mr. Young’s counsel; (i) The Estate shall pay Mr. Young’s costs associated with this motion and his examination; (j) If the Estate and Mr. Young are unable to agree on the amount of those costs they shall be determined by me at a case conference; (k) Counsel for Joe and Gus John shall be entitled to attend the examination of Mr. Young and may object to any question being answered on the basis that the communication in question is subject to lawyer-client privilege; (l) Any documents ultimately received from McMillan LLP shall be provided to counsel for Mr. Young at least 14 days prior to his examination; (m) Refusals No. 11 and No. 12 shall be answered within 30 days; (n) No other refusals need be answered; (o) The relief with respect to a supplementary affidavit of documents and a further attendance by Joe at an examination for discovery is dismissed; (p) The cross-examination of Joe held November 29, 2016 shall be treated as an examination for discovery for the purposes of trial; (q) This action is assigned to case management to be case managed by me; (r) The registrar shall not dismiss this action, or Action No. CV-13-494915, without further order of the court; and, (s) If the parties are unable to agree on the issue of the costs of this motion they may contact my office to request a further case conference.
Master R.A. Muir
DATE: July 14, 2017
1See paragraphs 22 and 23 of the Court of Appeal decision in Golic.