CITATION: Bandiera Jewellers Ltd. v. Grigoros Canada (1989) Inc., 2017 ONSC 5025
COURT FILE NO.: CV-12-00458408
MOTION HEARD: 20170810
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bandiera Jewellers Ltd., Plaintiff
AND:
Grigoros Canada (1989) Inc., Defendant
BEFORE: Master B. McAfee
COUNSEL: A. Marchioni, Counsel for the Moving Party, the Plaintiff
B. Shiller, Counsel for the Responding Party, Maggie La and Agent for the Defendant
HEARD: August 10, 2017
REASONS FOR DECISION
[1] This is a motion brought by the plaintiff. The only issues remaining are one refusal given on the examination in aid of execution of a representative of the defendant, re-attendance at an examination in aid of execution and costs.
Refusal No. 36, Q. 493, P. 118-124
[2] The refusal, as set out in the chart and argued on the motion, is as follows:
To produce the Grigoros Canada (1989) Inc. electronic ‘quickbooks’ bookkeeping data files for the years ended June 30, 2008 up to and including June 30, 2016, plus booking data file for the period July 1, 2016 to date.
[3] The affidavit of David Marchioni sworn July 27, 2017, filed in support of the motion describes the quickbooks data file as “… an electronic data file that stores all of the financial data entered into the quickbooks accounting software program utilized by the judgment debtor, which data relates to the company’s sales, inventory, payroll, accounting, and other financial affairs.”
[4] Rule 60.18(2)(a)-(g) of the Rules of Civil Procedure provides as follows:
(2) Examination of debtor – A creditor may examine the debtor in relation to,
(a) the reason for nonpayment or nonperformance of the order;
(b) the debtor’s income and property;
(c) the debts owed to and by the debtor;
(d) the disposal the debtor has made of any property either before or after the making of the order;
(e) the debtor’s present, past and future means to satisfy the order;
(f) whether the debtor intends to obey the order or has any reason for not doing so; and
(g) any other matter pertinent to the enforcement of the order.
[5] As stated by Justice Charron in Lauzier v. Ranger, [1995] O.J. No. 1943 (Ont.Gen.Div.) at paragraph 3, as is evident from the wording of the Rule, the scope of an examination in aid of execution is wide.
[6] Having regard to the wide scope of the examination, I am satisfied that the question is relevant based on Rule 60.18(2)(a)-(e).
[7] To address the defendant’s concern that the data files contain personal and confidential information of employees, the filing in the court file of copies of any of these files containing personal and confidential information of the employees is prohibited, subject to further order of the court obtained on notice.
[8] In addition, the representative of the plaintiff agrees to provide a personal undertaking not to utilize the personal and confidential information of employees unless a court order is obtained, on notice, permitting the plaintiff to do so.
[9] Upon provision of a written personal undertaking as outlined above, refusal no. 36 shall be answered.
Re-attendance
[10] The plaintiff seeks an order requiring Ms. La to re-attend at an examination in aid of execution. The defendant agrees to answer further relevant questions in writing.
[11] Having regard to the nature and extent of the undertakings (approximately 31 undertakings) and refused questions answered following the original examination in aid of execution and the refusal ordered to be answered, I am satisfied that a re-attendance will serve a useful purpose. I am also satisfied that a re-attendance in person is more appropriate having regard to the nature and extent of the undertakings and refusals now answered or to be answered.
[12] Rule 60.18(4) provides that only one examination in aid of execution under subrule (2) or (3) may be held in a twelve month period unless the court orders otherwise. In my view, the plaintiff is not requesting a second examination but a continuation or re-attendance on the first examination. If I am wrong, and a re-attendance does constitute a second examination, I order otherwise and a second examination shall take place for the reasons outlined above.
Costs
[13] The plaintiff seeks costs of the motion in the all-inclusive sum of $3,000. payable by Ms. La and the defendant. I was not referred to any relief in the notice of motion where costs are sought against Ms. La personally. Ms. La has not conducted herself in any manner that would warrant a costs order against her personally.
[14] No costs outlines were brought to the hearing.
[15] The plaintiff was successful on the contested issues argued and is entitled to costs of the motion. In my view the amount sought is too high. A fair and reasonable amount that the defendant could expect to pay for costs in all of the circumstances of the motion is the all- inclusive sum of $1,500. payable by the defendant to the plaintiff within 30 days.
Summary of Order
[16] Order to go as follows:
- Refusal No. 36, Q. 493, P. 118-124, asked on the examination in aid of execution of Maggie La, a representative of the defendant, held on April 4, 2017, shall be answered on the following conditions:
(a) the filing in the court file of copies of any of these files containing personal and confidential information of the employees is prohibited, subject to further order of the court obtained on notice; and
(b) the representative of the plaintiff shall first provide, on consent, a personal undertaking not to utilize the personal and confidential information of the employees unless a court order is obtained on notice permitting the plaintiff to do so.
Maggie La shall re-attend on an examination in aid of execution in person to answer any relevant and proper questions arising out of the undertakings and refusals answered and ordered to be answered.
Costs of the motion are fixed in the all-inclusive sum of $1,500. payable by the defendant to the plaintiff within 30 days.
Master B. McAfee
Date: August 24, 2017