COURT FILE NO.: CV-09-374829

DATE: 20180601

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LAWRENCE MARK DALE, STEPHEN MORANIS as ASSIGNOR AND REALTYSELLERS (ONTARIO) LIMITED as ASSIGNOR, Plaintiffs

AND:

THE TORONTO REAL ESTATE BOARD, ANN BOSLEY, JANE DOYLE, MARILYN BAUBIE, CYNTHIA LAI, DAVID PEARCE, RON ABRAHAM, DONALD BENTLEY, ANNE BRISCOE, MICHAEL DOSMAN, JOHN DIMICHELE, SHARON FUDA, DANIEL GARGARELLA, WILLIAM JOHNSTON, JOSE RHODES, MICHAEL MANLEY, DOROTHY MASON, PAUL ETHERINGTON, DINA MAGLIETTA, KEN McCLENAGHAN, JOHN MEEHAN, MAUREEN O'NEILL, JEO DE LEO, PAMELA PRESCOTT, BHUPINDER RANDHAWA, DON RICHARDSON, TREB-REN VENTURE INC., THE CANADIAN REAL ESTATE ASSOCIATION, RICHARD WOOD,

SAMIR BACHIR, DAVID GAGNON, GERRY THIESSEN, TIM WALSH,

JOHN FROESE, JOHN FRASER, BRAD GILBERT, JEAN-GUY SAVOIE, NOREEN BARWISE, DOROTHY WOODD, HARRY DELEEUW CALVIN LINDBERG, DANIEL BENNETT, ALAN TENNANT, PETER BRADY, PHILIP NESRALLAH, BRAD SCOTT, PIERRE BEAUCHAMP, RON MERKLEY and TOM BOSLEY, Defendants

BEFORE: Cavanagh J.

COUNSEL: Paul Morrison, Julie Parla and Anu Koshal, for the Plaintiffs, Lawrence Mark Dale, Stephen Moranis as Assignor and Realtysellers (Ontario) Limited as Assignor

William Sasso and Jacqueline A. Horvat, for the Defendants, The Toronto Real Estate Board, Ann Bosley, Jane Doyle, Marilyn Baubie, Cynthia Lai, David Pearce, Ron Abraham, Donald Bentley, Anne Briscoe, Michael Dosman, John Dimichele, Sharon Fuda, Daniel Gargarella, William Johnston, Jose Rhodes, Michael Manley, Dorothy Mason, Paul Etherington, Dina Maglietta, Ken Mcclenaghan, John Meehan, Maureen O’Neill, Jeo De Leo, Pamela Prescott, Bhupinder Randhawa, Don Richardson, Treb-Ren Venture Inc. (the TREB Defendants)

Katherine Kay, Mark Walli and Alexandra Urbanski, for the Defendants, The Toronto Real Estate Association, Ann Bosley, Richard Wood, Samir Bachir, David Gagnon, Gerry Thiessen, Tim Walsh, John Froese, John Fraser, Brad Gilbert, Jean-Guy Savoie, Noreen Barwise, Dorothy Woodd, Harry Deleeuw Calvin Lindberg, Daniel Bennett, Alan Tennant, Peter Brady, Philip Nesrallah, Brad Scott, Pierre Beauchamp, Ron Merkley and Tom Bosley (the CREA Defendants)

HEARD: April 24, 2018

ENDORSEMENT

Introduction

[1] The plaintiff Lawrence Mark Dale and Stephen Moranis co-founded Realtysellers (Ontario) Limited (“Realtysellers”), a real estate brokerage that operated in Toronto from 2000 until November 2006. Realtysellers was founded with the aim of providing buyers and sellers of residential real estate with a more efficient and lower cost alternative to traditional real estate brokerages. The key service that Realtysellers offered was the opportunity for sellers to list their homes for sale on the Multiple Listing Service (“MLS”) for a price that was less than the commissions typically charged by traditional brokerages. Realtysellers key service offering was access to the MLS for a flat fee, without providing any services relating to the receipt, presentation or negotiation of offers to purchase. Mr. Dale is the moving party on this motion.

[2] The Canadian Real Estate Association (“CREA”) is a national trade association and its membership includes local real estate boards across the country, including the Toronto Real Estate Board (“TREB”), the local real estate board operating in the greater Toronto area. CREA, along with its local real estate boards, owns, operates and controls the MLS.

[3] The defendants are (i) CREA and individuals who the plaintiffs submit were officers and directors of CREA during the period of Realtysellers’ first legal action against CREA and TREB in 2003, and (ii) TREB and individuals who the plaintiffs submit were directors and/or officers of TREB during the same period. These groups of defendants are described, respectively, as the CREA Defendants and the TREB Defendants.

[4] The plaintiffs commenced this action in March 2009. They claim damages in the amount of $540,000,000 for breach of settlement agreements relating to matters referred to in an earlier action (the “Settlement Agreement”). The plaintiffs also claim damages for breach of a duty of good faith, and breach of collateral warranty in relation to the Settlement Agreement, as well as damages pursuant to s. 36(1) of the Competition Act for breaches of sections 45 and 61 thereof, damages for civil conspiracy, inducing breach of contract and tortious interference with economic and contractual relations, together with declaratory and other relief.

[5] Mr. Dale set this action down for trial on December 19, 2014 without first moving to require that the CREA Defendants and the TREB Defendants deliver affidavits of documents. No affidavits of documents have been served by these defendants.

[6] The CREA Defendants and the TREB Defendants have moved for summary judgment dismissing the action in its entirety. The plaintiff and moving party on this motion, Mr. Dale, has also brought a motion for summary judgment.

[7] Mr. Dale served notices of examination on the witnesses who have delivered affidavits in support of the motions for summary judgment brought by the CREA Defendants and the TREB Defendants. In these notices, Mr. Dale requires each witness to bring with him to the examination “all relevant Documents” in his power, possession or control (or of CREA or TREB, as applicable) including but not limited to a list of items in four categories. Mr. Dale has brought this motion for an order requiring the defendants to comply with the production of documents set out in the Notices of Examination by producing in advance of the cross-examinations the documents described in the notices of examination.

[8] For the following reasons, I direct the CREA Defendants and the TREB Defendants to deliver affidavits of documents in compliance with the Rules of Civil Procedure. This motion is dismissed, without prejudice to Mr. Dale’s right to renew this motion, if so advised, following service by the CREA Defendants and the TREB Defendants of affidavits of documents.

Procedural Background

[9] The Statement of Claim in this action was issued in March 2009. The Statement of Claim was amended several times, and the current Fresh as Amended Statement of Claim was delivered in February 2011. The Fresh as Amended Statement of Claim describes Realtysellers in the title of proceedings as “Assignor” and the pleading states that Realtysellers assigned to Mr. Dale and Mr. Moranis all of its right, title and interest in the action.

[10] The CREA Defendants delivered a statement of defence in May 2012. The TREB Defendants delivered a statement of defence on May 3, 2012 and a fresh as amended statement of defence on June 15, 2012.

[11] On August 30, 2012, the action was dismissed for delay by the Registrar. The plaintiff brought a motion to set aside this order and it was set aside by order dated October 12, 2012.

[12] The parties then agreed to a timetable. The timetable was attached to an order of Master McAfee dated December 14, 2012 that was made on consent of all parties. The Master ordered that “the parties adhere to the timetable attached and that each party shall carry out the steps assigned to him, her or it by the dates provided”. This order provides that the timetable may be varied by mutual consent of all parties provided that the deadline for setting the action down for trial may be varied only by court order. The Master’s order provides that the Registrar shall dismiss the action for delay with costs unless the action has been set down for trial or terminated by any means on or before December 31, 2014.

[13] The agreed upon timetable that was attached to the Master’s order provides, among other things, that:

a. A discovery plan shall be agreed to by December 14, 2012.

b. The parties shall serve their affidavits of documents and Schedule “A” productions by April 30, 2013.

c. Motions for summary judgment, if any, shall be heard and completed by November 30, 2014, subject to court availability.

d. The action shall be set down for trial by December 31, 2014.

[14] The plaintiff served an affidavit of documents on August 1, 2012, and asked when the defendants’ affidavits of documents would be available.

[15] On January 17, 2013 the parties convened a meeting to confer about a discovery agreement. The defendants sent a draft discovery agreement to the plaintiff the day before the meeting took place. No discovery plan was agreed upon at the January 17, 2013 meeting or ever.

[16] Following this meeting, the plaintiff did not demand delivery of the defendants’ affidavits of documents. The TREB Defendants and the CREA Defendants have not delivered affidavits of documents.

[17] On December 19, 2014, just a few days before the deadline for setting the action down for trial pursuant to the Master’s order, Mr. Dale set the action down for trial on behalf of himself and Realtysellers. An Order to Continue was later issued (dated May 27, 2016) that referenced that Stephen Moranis assigned his interest in the action to Mr. Dale on February 25, 2015. I refer to Mr. Dale in the balance of these reasons as the plaintiff.

[18] On December 3, 2015 and February 29, 2016, respectively, the TREB Defendants and the CREA Defendants moved for summary judgment dismissing the action. In support of the motions for summary judgment, the TREB Defendants rely on two affidavits from Don Richardson (the former President of TREB), and the CREA Defendants rely on two affidavits from Gary Simonsen (the former President of CREA).

[19] On December 19, 2016 the plaintiff served materials responding to the defendants’ motions for summary judgment and they brought a motion for summary judgment granting the relief sought against the defendants. In his Notice of Motion, the plaintiff also seeks an order, if required pursuant to r. 48.04, for leave to bring their motion. The plaintiff’s summary judgment motion was supported by his affidavit. The plaintiff also served a reply affidavit in December 2017.

[20] On January 31, 2018 the plaintiff served Notices of Examination requiring Mr. Simonsen and Mr. Richardson to attend for cross-examination on their affidavits. In the Notice of Examination directed to Mr. Simonsen (the “Simonsen Notice”), he was notified that further to Rule 34.10, he is required to bring with him to the examination “all relevant Documents” in the power, possession or control of himself or CREA, including but not limited to a list of 24 items in four categories. The Notice of Examination directed to Mr. Richardson (the “Richardson Notice”) included a similar notification to bring “all relevant Documents” in the power, possession or control of himself or TREB including but not limited to a list of 23 items in the same four categories. The term “Documents” was defined in the Notices of Examination as “without limitation: notes, emails, meeting minutes, letters, reports, presentations, and all other written communications and documents, as well as “documents” as defined in Rule 30.01(1)(a) of the Rules of Civil Procedure”.

[21] The Simonsen Notice and the Richardson Notice list the requested documents in the following four categories:

a. Documents relating to the Settlement Agreement,

b. Documents relating to the so-called Halifax Proposals (proposed rules that were to be voted on by CREA members at a Special Assembly in Halifax on September 20, 2006),

c. Documents relating to the Interpretations (a series of interpretations to the existing rules of CREA that, according to the plaintiff’s pleading, CREA announced on January 25, 2007), and

d. Documents relating to CREA’s conduct and TREB’s conduct towards Realtysellers.

[22] The plaintiff claims that the Halifax Proposals were effectively the same rules that had been repealed as part of the Settlement Agreement and, if implemented, would be in breach of the Settlement Agreement. He claims that the Halifax Proposals later became the Interpretations. He claims that the implementation of the Interpretations was a breach of the Settlement Agreement and the implied term, collateral warranty and the duty of good faith relating to the Settlement Agreement by the CREA Defendants and the TREB Defendants. The plaintiff claims that these defendants are liable for the causes of action pleaded in the Fresh as Amended Statement of Claim. These claims are denied by the CREA Defendants and the TREB Defendants.

[23] On the motion before me, the plaintiff moves for an order requiring the defendants to comply with the production of documents set out in the Notices of Examination by producing in advance of the cross-examinations the documents described in the Simonsen Notice and the Richardson Notice.

[24] CREA’s counsel, by letter dated April 3, 2018, advised the plaintiff that they regard the expansive document requests to ignore the summary judgment context and to be in the nature of a “fishing expedition”. Counsel for CREA addressed each of the four categories of documents referenced in the notices of examination and advised that (a) CREA considered the documents requested to be irrelevant to the issues to be determined on the summary judgment motions, and (b) CREA considered that the production would involve a burden on CREA which is clearly disproportionate to the relevance, if any, of the documents requested.

[25] In her letter, counsel for CREA advised that CREA is prepared to produce certain identified documents responsive to some of the plaintiff’s requests in three of the four categories, to the extent that they exist, are within CREA’s possession, power or control, can be identified using reasonable efforts, and are not privileged. Counsel for CREA advised that if agreement was not reached on the scope of the documents to be produced, CREA will produce the documents described in the letter a reasonable time in advance of the cross-examination of Mr. Simonsen.

[26] At the hearing of the plaintiff’s motion, counsel for the TREB Defendants advised that TREB will produce a limited set of additional documents that corresponds with the additional documents that CREA has agreed to produce, and that no further documents should be ordered to be produced on this motion.

[27] In his reply factum for this motion, the plaintiff provided a revised description of requested documents that is described as the “Dale Compromise” that, according to the plaintiff, refines the production requests to clarify what is being sought and withdraws a number of requests.

Analysis

[28] On this motion the plaintiff asks for an order pursuant to r. 34.10 of the Rules of Civil Procedure requiring the CREA Defendants and the TREB Defendants to produce, in advance of the cross-examinations of Mr. Simonsen and Mr. Richardson, the documents requested in the Notices of Examination (as limited by the “Dale Compromise”).

[29] The plaintiff submits that the documents requested are relevant to the issues raised on the motions for summary judgment and that the requests for documents are not overly broad. He submits that the defendants have brought motions to have the entire action dismissed and, accordingly, any document relevant to the issues raised in the pleadings is relevant and must be produced, subject to privilege and proportionality. The plaintiff submits that the four categories of documents arise directly from the affidavit evidence delivered on behalf of the CREA Defendants and the TREB Defendants and that his requests are tailored to the evidence of Mr. Simonsen and Mr. Richardson and list the paragraph numbers of each affidavit from which each request arises.

[30] The plaintiff submits that the CREA Defendants and the TREB Defendants were required to serve affidavits of documents pursuant to the order of Master McAfee and under r. 30.03(1) of the Rules of Civil Procedure. He submits that the defendants should not be permitted to resist production of relevant documents that are requested in the Simonsen Notice and the Richardson Notice by (i) failing to serve affidavits of documents, (ii) waiting for the period of time for motions for summary judgment set out in the schedule appended to Master McAfee’s order to pass, (iii) waiting for the plaintiff to set the action down for trial, and then (iv) moving for summary judgment without producing relevant documents.

[31] The Simonsen Notice and the Richardson Notice include a list of 24 and 23 items, respectively, which each witness is required to bring with him and produce at the examination.

[32] The plaintiff submits that even though r. 34.10 requires the party being examined to bring the requested documents to the examination, it is appropriate to require production in advance so as to save time and resources. In support of this submission, he relies upon the decision of Strathy J. (as he then was) in Fairview Donut Inc. v. The TDL Group Corp., 2011 ONSC 247. In Fairview Donut, there was a request for documents was from a non-party who had sworn an affidavit in support of a motion for summary judgment. The documents were a limited collection of a particular kind of document (described as “throw sheets”) which were acknowledged to be available.

[33] In Fairview Donut, the action was a class action. Strathy J. considered that where an affiant who is not a party has made it clear that he/she does not intend to produce a requested document, the court must be able to order its production under r. 30.10 (which governs production from a non-party) and also under the combined operation of r. 34.10 and section 12 of the Class Proceedings Act which permits the court to make “any order it considers appropriate regarding the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.” Strathy J. ordered that the witness produce the documents in question in advance of the examination, reasoning that “[i]t would be a waste of the parties’ time and resources to require that [the witness] attend an examination, refuse to produce the documents and then re-attend if he is ordered to produce the documents when it is clear that he would not produce the documents without a court order.”

[34] This case is unlike Fairview Donut in that the documents in dispute are not a limited and defined quantity of relevant documents that are known to exist. In this case, there is an expansive request for production of a significant quantity of documents, the relevance of which is disputed.

[35] CREA submits that it should not be required to produce the documents requested in the Simonsen Notice (beyond those that it has agreed to search for and, if they can be identified using reasonable efforts, produce) for the following reasons:

a. The plaintiff’s motion is essentially a disguised attempt to obtain wide-ranging documentary discovery from the defendants under r. 30, and such a motion is not permitted under r. 48.04(1) without leave of the court. The plaintiff has not attempted to satisfy the required standards for obtaining leave to obtain discovery after setting the action down for trial, and he does not meet the test for obtaining leave. The plaintiff should not be permitted to transform cross-examination into discovery.

b. The plaintiff’s motion under r. 34.10 is concerned with documents that are needed for cross-examinations of witnesses, which is not meant to be a substitute for the discovery process, and the broad document requests made in the Simonsen Notice in relation to the four categories of requested documents are fundamentally and fatally inconsistent with the principles of relevance and proportionality which inform the production obligations under r. 34.10. The plaintiff has not shown that such documents are relevant to or necessary for the adjudication of the issues raised on the summary judgment motions.

[36] TREB submits that (i) the plaintiff’s document requests were made for the first time long after the TREB Defendants moved for summary judgment and this delay should be taken into account on this motion, (ii) all parties agreed upon, and the court approved, a plan and timetable for the conduct of summary judgment motions without documentary production required, (iii) under r. 48.04(1), the plaintiff may not initiate any form of discovery without leave of the court, and leave has not been sought, and (iv) the plaintiff’s production demands are unreasonably broad and designed to frustrate the use of the summary judgment procedure to secure the just, most expeditious and least expensive determination of the action on its merits.

Is the plaintiff’s motion one that is prohibited without leave of the court under r. 48.04(1) of the Rules of Civil Procedure?

[37] Rule 48.04(1) provides that a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court. Rule 48.04(2)(b) provides that subrule (1) does not relieve a party from an obligation imposed by, among other things, r. 30.07 (disclosure of documents or errors subsequently discovered). Under r. 48.04(3), leave of the court is not required for a motion to compel compliance with any obligation imposed by a rule listed in clause (2)(b).

[38] The plaintiff’s Notice of Motion states that the defendants have an obligation to produce the requested documents pursuant to Rule 34.10 of the Rules of Civil Procedure. Counsel for the plaintiff was clear at the hearing of this motion that the plaintiff moves pursuant to r. 34.10(2)(b). This rule provides:

(2) The person to be examined shall bring to the examination and produce for inspection,

(b) on any examination, including an examination for discovery, all documents and things in his or her possession, control or power that are not privileged and that the notice of examination or summons to witness requires the person to bring.

[39] In Moneris v. Ganesh, 2016 ONSC 157, Emery J. described at para. 25 the requirement of an affiant to bring documents identified in a notice of examination to the cross-examination as one of three methods for documentary production normally used to seek production of documents on an application or a motion. Responding parties to a motion have full recourse to all means available under the Rules of Civil Procedure to seek relevant documents that would enable them to put their best foot forward on a motion for summary judgment. Such means include the right to require those persons to bring with them documents that were listed in a notice of examination under rule 34.10: 1870553 v. Kiwi Kraze Franchise Co., 2015 ONSC 1632 at para. 45.

[40] Although the notices of examination include requests for what may be a very significant number of documents, I do not agree that this motion is one that cannot be initiated without leave of the court because the plaintiff set the action down for trial.

[41] In Iannarelli v. Corbett, 2015 ONCA 110, the Court of Appeal addressed the question of whether the obligation to serve an affidavit of documents is mandatory, or whether it is waived where a party has set the action down for trial. Although the plaintiff’s motion is not a motion to compel documentary discovery under r. 30, in my view, the principles expressed by the Court of Appeal in Iannarelli also apply to this motion.

[42] In Iannarelli, the defendants relied upon a surveillance video at trial that was tendered during the cross-examination of one of the plaintiffs. The existence of this video had not been disclosed in an affidavit of documents and the defendants had not provided particulars of it prior to trial. Lauwers J.A., writing for the court, held that the defendants had failed to comply with the Rules by failing to serve an affidavit of documents which would have disclosed the existence of the surveillance video, and that the trial judge had erred in failing to refuse to admit the surveillance video into evidence, even for the purpose of impeachment.

[43] The Court of Appeal in Iannarelli addressed the defendants’ submission that the plaintiffs were not entitled to an affidavit of documents since they had not sought the affidavit and had waived examinations for discovery before the action was set down for trial. The defendants relied upon r. 48.04 that provides that a party who has set an action down for trial shall not initiate any form of discovery without leave of the court. Lauwers J.A. concluded that r. 48.04 did not excuse the defendants’ failure to serve an affidavit of documents based upon the following reasoning:

[52] The trial judge’s implicit reliance on rule 48.04 as the authority for refusing to make the order requested by the appellants because they had set the action down for trial was misplaced. Unlike rule 31.03(1), which provides that a party “may” conduct an examination for discovery, rule 30.03(1) provides that a party shall serve an affidavit of documents. The obligation to provide an affidavit of documents, which includes listing privileged surveillance in the accompanying Schedule B, is mandatory. This is the way in which a claim to privilege is to be asserted for the purpose of rule 30.09. Further, rule 48.04 (1) specifically provides that even after the matter is set down for trial, a party is not relieved from its obligation under rule 30.07 to disclose documents subsequently discovered or that were not previously disclosed in an affidavit of documents, although rule 48.04(2)(b)(ii) assumes that an affidavit had previously been delivered in compliance with the Rules.

[53] I am alert to the Supreme Court of Canada’s call for a civil litigation “culture shift” to make the conventional trial process more timely and affordable, and the waiver of a party’s strict rights can play an important role in expediting cases. (Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 2) I do not suggest that a party cannot waive discovery. Discovery is often waived in rear-end motor vehicle collisions because the defendant’s liability is not disputed; where damages are the real issue, the individual defendant typically has nothing to provide by way of evidence. I also do not suggest that the requirement for an affidavit of documents cannot be waived. There may be simple cases where that makes good economic sense. However, an effective waiver should be express, rather than implied solely from the fact that the matter was set down for trial, as appears to have happened in this case.

[44] The facts in Iannarelli differ from the facts on the motion before me because in Iannarelli a party attempted to use at trial a document (the surveillance video) that had not been disclosed prior to trial by that party, through an affidavit of documents or otherwise. Iannarelli did not involve a motion for production of documents under r. 34.10. Nevertheless, the Court of Appeal in Iannarelli held that, absent a valid waiver of a party’s obligation to serve an affidavit of documents, the obligation to provide an affidavit of documents is mandatory and continues after the action has been set down for trial.

[45] In 1086471 Ontario Inc. v. 2077060 Ontario Inc., 2008 CanLII 67406 (ONSC), Master Dash addressed whether a party who had set an action down for trial is prohibited from moving without leave to compel answers to questions asked on a cross-examination on an affidavit. Master Dash held at paras. 5-7 that cross-examinations are not a form of discovery, and that r. 48.04(1) does not apply to motions brought in response to and in the context of an underlying motion brought by another party.

[46] I conclude, based upon Iannarelli and 1086471 Ontario, that r. 48.04(1) does not prohibit the plaintiff from moving under r. 34.10 for production of documents in the context of a cross-examination of an affiant in response to a summary judgment motion.

Is the plaintiff precluded from requiring disclosure of documents requested in the Simonsen Notice and the Richardson Notice because of his agreement to the plan and schedule for the summary judgment motions?

[47] The CREA Defendants submit that, having embarked on a process leading to the hearing of summary judgment motions, the plaintiff should not be able to demand documentary discovery because, as it was put by Emery J. in 1870553 Ontario Inc. v. Kiwi Kraze Franchise Co. Ltd. 2015 ONSC 1632 at para. 51, “[t]o ask for an affidavit of documents from the plaintiff after agreeing to a timetable for the delivery of responding materials to a motion is to regret the road not taken”. The TREB Defendants also submit that the plan and timetable for the summary judgment motions did not provide for documentary production from adverse parties.

[48] In response, the plaintiff points to the timetable for the summary judgment motions which expressly provides for “Resolution of document issues (either via production, motion or both)”.

[49] I do not agree that the plan and timetable for the summary judgment motions did not provide for a motion such as this one.

[50] Counsel for CREA emphasizes that the plaintiff has brought his own motion for summary judgment seeking judgment for the relief claimed in the action on the ground that there is no genuine issue requiring a trial. She submits that a substantial quantity of documents has been filed by the parties for use on the summary judgment motions, including some internal documents from CREA and TREB. Counsel for CREA submits that the plaintiff must be taken to be satisfied that these documents are sufficient for a fair and just adjudication of the issues on these motions. She submits that, having brought his own motion for summary judgment, the plaintiff’s submission that he requires additional documents from CREA and TREB in order to put his best foot forward in responding to the motions for summary dismissal of the action should be rejected.

[51] I do not agree that by moving for summary judgment, the plaintiff should be taken to have agreed that no additional documents are needed from the CREA Defendants or the TREB Defendants in order for there to be a fair and just adjudication of the issues raised on the motions for summary judgment brought by these defendants and that, as a result, the document requests are disproportionate. There may be cases where the parties have agreed to limit the evidence to be used on a motion for summary judgment. In Iannarelli, Lauwers J.A. held that a waiver of a party’s right to documentary discovery should be express, and not implied from the fact that the action was set down for trial.

[52] In these circumstances, I do not agree that the plaintiff has expressly or impliedly waived his right to production of relevant documents under r. 34.10 by moving for summary judgment or that, by so doing, his document requests should be regarded as disproportionate to the relevance of the documents that are requested. I also conclude that the plaintiff has not waived the requirement for an affidavit of documents.

Does the plaintiff’s document production motion misuse cross-examination procedure and run afoul of the principles of relevance and proportionality?

[53] The plaintiff submits that he has an obligation to put his best foot forward in responding to the summary judgment motions, and that he must avail himself of the right to disclosure of documents under r. 34.10 in order to do so, or risk losing. He submits that the only grounds to resist production of documents under r. 34.10 are relevance, proportionality and privilege. The CREA Defendants and the TREB Defendants agree that these principles inform the scope of documentary disclosure under r. 34.10.

[54] In support of his submissions, the plaintiff relies upon the following passages from the judgment of Lococo J. in Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2011 ONSC 4277 at paras. 27-29:

A person being cross examined on an affidavit is required to bring to the examination and produce for inspection any non-privileged document in that person’s possession or control that the notice of examination requires that person to bring. The notice of examination may require the person being examined to bring and produce documents that are relevant to any matter in issue on the motion for which the affidavit was sworn. Where a person admits on an examination to having possession or control of any relevant, non-privileged document, that person is required to produce it.

From the foregoing, it is evident that production of documents in connection with cross-examination on an affidavit is limited by the concept of relevance - in this case, documents required to be produced must be relevant to any matter in issue on the main motion.

The production of documents in relation to a cross-examination on any affidavit may also be limited on the basis of proportionality. This limitation is evident from the factors that the Court is required to consider in determining whether the person being examined must answer a question or produce a document, as set out in rule 29.2.03 of the Rules of Civil Procedure...

[55] With respect to Ravenda Homes, the CREA Defendants point out that a number of documents that were described as “underlying documents” (concerning financial documents that were ordered to be produced) were not required to be produced because production of these documents would be out of proportion given the matters in issue.

[56] CREA submits that the document production requests in the Simonsen Notice are fundamentally and fatally inconsistent with the principles of relevance, proportionality, and privilege which inform any document production obligation in connection with cross-examination under r. 34.10. CREA points out that 21 of the 24 document requests in the Simonsen Notice seek “all documents” in relation to the broad category of documents requested and they submit that, on their face, these requests call for production of large quantities of irrelevant information that would be unduly onerous for the CREA Defendants to search for, review and produce. CREA submits that the plaintiff are attempting to transform cross-examination into discovery in contravention of the letter and spirit of the Rules of Civil Procedure. Although at the hearing of this motion the plaintiff agreed to limit or withdraw a number of the items in the Simonsen Notice, CREA submits that the requested documents, even as limited, need not be produced because, other than to the extent that CREA has agreed to produce documents, the request does not comply with the principles of relevance and proportionality that apply to a request for documents under r. 34.10.

[57] CREA, in support of these submissions, relies upon the decision of Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504. In Rothmans, Perell J. decided an appeal from a Master’s order on a refusals motion brought by the plaintiff, the Crown. The underlying motion was brought by the defendants to stay the Crown’s action on the ground that the court lacks jurisdiction over the foreign defendants. Perell J. addressed the differences between evidence obtained on discovery and evidence obtained by cross-examination on an affidavit and, at para. 143, he identified a number of principles that have been developed by the case law about the scope of cross-examination of a deponent for an application or motion.

[58] The principles identified by Perell J. in Rothmans include:

a. The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery.

b. A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure.

c. The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion.

d. The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence.

e. The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion.

f. The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information.

[59] In Rothmans, Perell J. also addressed the proportionality principle, including the principles expressed in r. 1.04(1) that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits, and in r. 1.04(1.1) that in applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. Perell J. held that the Master had erred in his approach to the proportionality principle by failing to consider whether the information requested was readily available or not unduly onerous to obtain, given that the relevant events covered a 60 year period.

[60] The Settlement Agreement, the Halifax Proposals, the Interpretations, and the conduct of the defendants towards Realtysellers are all matters that, broadly speaking, are addressed in the pleadings and in the affidavits that have been delivered for the summary judgment motions. Documents that fall within these categories may be relevant to the matters in issue on the summary judgment motions.

[61] The plaintiff submits that documents in each of the four categories are relevant to the allegations made by CREA and TREB in their Notices of Motion for summary judgment dismissing the action. He points to paragraphs 31 and 33 of TREB’s Notice of Motion which state:

[31] The TREB defendants did not enter into any agreement to injure Realtysellers, nor did they engage or cause TREB to engage in any conduct which breached the terms of the Settlement Agreement, nor have they engaged in any conduct which could give rise to any other cause of action asserted against them in this 2009 Realtysellers Action.

[33] The allegations made in the Statement of Claim against the TREB Defendants are unsupported by any evidence, and there is therefore no genuine issue requiring a trial.

[62] The plaintiff also points to paragraphs 8 and 109 of CREA’s Notice of Motion for summary judgment which includes statements in the grounds for the motion that the “objective of the Interpretations was to protect the validity of CREA’s Trademarks, including MLS and Multiple Listing Service.” This Notice of Motion also states that “[t]here was no ‘conspiracy’ by or among the CREA Defendants, or any of them” and the “ratification of the Interpretations was not intended to harm the Plaintiff.”

[63] The denial by the CREA Defendants and the TREB Defendants of the plaintiff’s allegations does not mean that these defendants must produce all documents that fall within the four categories. In this regard, in Elgner v. Freedman Estate, 2014 ONSC 1989 Morgan J. wrote:

It has been recognized for several centuries in English law that to impose a burden of proof on the party asserting a negative proposition of this nature may be to impose an insurmountable burden. [...]

The primary position adopted by the Plaintiff - that to prove one has nothing, one must produce everything - is, with respect, too clever by half. If that argument were to be accepted, every party in every case could be cross-examined on everything they possess or know in the world, since all parties are required to swear an affidavit of documents that confirms that they have produced everything of relevance. Truly testing that they have no other relevant material would, if taken to the logical extreme that the Plaintiffs’ counsel embrace here, require disclosure of all their non-relevant material.

[64] I agree with the statement made by Morgan J. in Elgner, and I am unable to conclude that all documents that fall within the four categories of documents are relevant to the issues on the summary judgment motions.

Should the CREA Defendants and the TREB Defendants first serve affidavits of documents?

[65] The issues of relevance and proportionality as they relate to the plaintiff’s motion arise, to a significant extent, from the fact that there has been no documentary discovery from the CREA Defendants and the TREB Defendants, other than through documents disclosed in the affidavits of Mr. Simonsen and Mr. Richardson in support of the motions for summary judgment brought by the CREA Defendants and the TREB Defendants. In most actions involving a substantial claim for damages that have progressed over a number of years, the parties would in the usual course have complied with the Rules of Civil Procedure and agreed to a discovery plan and exchanged affidavits of documents disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power. This has not happened in this case.

[66] As a result, the issues of relevance and proportionality were addressed by counsel in their submissions on this motion, without the CREA Defendants or the TREB Defendants having first addressed these issues themselves in the course of deciding which documents are relevant to any matter in issue in the action and are required to be disclosed, subject to the principle of proportionality. I have considered the submissions made on this motion, and I find that I am not in a position, on the record before me, to rule on the scope of documentary disclosure that should be made by the CREA Defendants and the TREB Defendants in advance of the cross-examinations where these parties, themselves, have not disclosed relevant documents in an affidavit of documents.

[67] I conclude that these issues should first be addressed through the CREA Defendants and the TREB Defendants complying with their obligations under the Rules, as confirmed by the Court of Appeal in Iannarelli, by serving affidavits of documents listing and describing all documents relevant to any matter in issue in the action that the party does not object to producing. These defendants, with the guidance of their counsel, will be able to apply a proper standard in order to determine whether a given document is relevant to any matter in issue in the action and, in so doing, give proper consideration to the principle of proportionality. The CREA Defendants and the TREB Defendants know from the plaintiff’s notices of examination the nature and scope of the documents of which the plaintiff seeks production.

[68] If, after service of these affidavits of documents, there is still disagreement concerning whether documents relevant to a matter in issue on the motions for summary judgment have been produced and should be produced in advance of cross-examinations, this motion may be renewed following a case conference with me.

Disposition

[69] For the foregoing reasons, the plaintiff’s motion for an order requiring the defendants to comply with the Notices of Examination served on January 31, 2018 by requiring them to produce the documents listed in the Notices of Examination in advance of the cross-examinations is dismissed, without prejudice to the plaintiff’s right to renew this motion, if so advised and following a case conference with me, following service by the CREA Defendants and the TREB Defendants of affidavits of documents.

[70] If costs cannot be agreed upon, the parties may make written submissions with 20 days, and they may make responding submissions within 15 days of receipt of the submissions of the opposing party or parties. I would be inclined to have costs reserved to be decided on the summary judgment motions, but I will consider submissions if any party considers it proper that I should do so.

[71] I am available for a case conference at the request of any party to address any scheduling issues concerning the time for service of affidavits of documents or concerning the summary judgment motions, or other issues that may arise from my decision on this motion.

Cavanagh J.

Date: June 1, 2018