CITATION: Falcon Lumber Ltd v. 2480375, 2017 ONSC 6248
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Falcon Lumber Limited, Plaintiff
AND:
2480375 Ontario Inc., carrying on business as “GN MOULDINGS AND DOORS”, MUHAMMAD ASJID IQBAL, GN TRIM AND DOORS LTD., aka “GN TRIM & DOOR LTD.”, SURINDER P.LOTEY a.k.a. “PAUL LOTEY”, Defendant(s)
BEFORE: Shaw J.
COUNSEL: R. Linton, Counsel, for the Plaintiff
A. Minkin, M. Simaan Counsel, for the Defendants
ENDORSEMENT
1The plaintiff has brought this motion seeking an order that the defendant Surinder P. Lotey, a.k.a. Paul Lotey (“Lotey”) re-attend for cross-examination to answer all undertakings and refusals from his cross-examination of June 22, 2017 and all relevant questions arising therefrom.
2Before this motion was heard Justice Barnes released an endorsement from a motion heard on March 24, 2017. In that endorsement, Justice Barnes ordered that the defendants Lotey and GN Trim and Doors Limited were to produce full disclosure of the last 24 months of their business records, corporate records and financial information, including the last 24 months of financial statements; the last 12 months bank statements and cancelled cheques; and payroll ledger for the prior 24 months. He also ordered that they produce a full and complete affidavit of documents. Justice Barnes ordered that this disclosure be provided within 40 days.
3In paragraph 22 of his endorsement, Justice Barnes noted:
Thus the documents sought by the plaintiff are relevant to the issues raised by the action. The documents can help discover why the amount claimed has not been paid, who may have obtained the benefit arising from failure to pay, whether there is any financial relationship between the defendants and the nature of any financial relationships. All of the items are relevant to the issue of unjust enrichment and whether the corporate veil can be pierced in this action.
4The defendants have not complied with Justice Barnes order. GN and Lotey were to have provided disclosure by August 31, 2017. Counsel for the defendants informed the court during the motion that the disclosure would be provided by September 28, 2017.
5According to Justice Barnes’ endorsement, there is an issue of unjust enrichment and whether the corporate veil can be pierced in this action. In light of that, I will consider the relevancy of the refusals from Lotey’s cross-examination and determine whether they should be answered. If there is an unjust enrichment, it is open to the Plaintiff to argue that the corporate veil should be pierced and Lotey be found personally liable for the amounts owing to the defendant. This was the finding of the Court of Appeal in Shoppers Drug Mart Inc. v. 6470360 Canada Inc. et al 2014 ONCA 85.
6Lotey was asked a number of questions about his personal living arrangements and financial affairs such as the value of his home. Those questions are relevant as they relate to issues of unjust enrichment. Questions 1, 8, 9, 10 and 14 must be answered.
7Lotey was asked who he thought was legally liable to pay the Plaintiff. That is not a proper question to ask and he does not have to answer questions 44, 46, 47 and 49. That is the issue that the court must determine.
8Lotey was asked a series of questions about his financial relationship with GN Trim and Door. Those questions go to the issue of unjust enrichment and questions 72 and 75 should be answered.
9Lotey was asked whether or not GN Trim and Doors would consent to judgment to the action commenced by the Plaintiff. That is not a proper question to ask of the witness and he does not have to answer questions 78 and 81.
10Lotey was asked a question about when his computer runs out of space. This was asked in the context of a series of questions about emails and why emails were not kept for more than a few months. It is a relevant question to ask given the issue about why emails were not kept after a certain period of time. Lotey must answer questions 123 and 124.
11Lotey was asked questions about some meetings and then asked which version he would tell a judge. That is not a proper question and he does not have to answer questions 219 and 220.
12Lotey was asked about a costs cheque from the law firm of the plaintiff’s lawyer and into what account he deposited the cheque. That is not relevant and he does not have to answer question 264.
13I therefore order that Lotey re-attend at cross-examination to answer questions 1, 8, 9, 10, 14, 72, 75, 123 and 124 and any relevant questions arising therefrom.
14In my view, success on this motion was mixed so there is no order as to costs.
Shaw J.
Date: October 19, 2017
[15]
CITATION: Falcon Lumber Ltd v. 2480375, 2017 ONSC 6248
COURT FILE NO.: CV-16-1570-00
DATE: 2017 10 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Falcon Lumber Limited
AND:
2480375 Ontario Inc., carrying on business as “GN MOULDINGS AND DOORS”, MUHAMMAD ASJID IQBAL, GN TRIM AND DOORS LTD., aka “GN TRIM & DOOR LTD.”, SURINDER P.LOTEY a.k.a. “PAUL LOTEY”, Defendant(s)
ENDORSEMENT
Shaw J.
Released: October 19, 2017
