Court File and Parties

Court File No.: CV-14-00502628 Motion Heard: 20181206 Superior Court of Justice - Ontario

Re: Gary Curtis, Plaintiff And: Bank of Nova Scotia, Defendant

Before: Master B. McAfee

Counsel: Gary Curtis, Plaintiff, in Person Ian R. Dick, Counsel for the Defendant

Heard: December 6, 2018

Reasons for Decision

[1] This is a motion brought by the plaintiff for an order directing the defendant to produce and preserve certain documents.

[2] With respect to the relief sought at paragraph (a)5 of the notice of motion, at the return of the motion the defendant consented to an order that the defendant shall produce the employment file (employee #50789380) for inspection on December 11, 2018, at 10 a.m. at the office of defendant’s counsel. The relief sought at paragraph (a)5 of the notice of motion was resolved on this basis on consent.

[3] The defendant opposes the balance of the relief sought in the notice of motion.

[4] On February 28, 2018, the defendant served an affidavit of documents. On July 26, 2018, the defendant served a supplementary affidavit of documents.

[5] Rule 30.06 of the Rules of Civil Procedure provides:

30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may, (a) order cross-examination on the affidavit of documents; (b) order service of a further and better affidavit of documents; (c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and (d) inspect the document for the purpose of determining its relevance or the validity of a claim for privilege.

[6] I will now turn to the plaintiff’s request for production of six classes of documents set out at paragraph (a)1-6 of the notice of motion.

Document Production Requests

1. Barry Ray’s Toronto Region Delinquency report (monthly, quarterly, semi-annual and annual) for the period of November 1, 2010 to October 31, 2012

[7] It is the defendant’s evidence that copies of all delinquency reports that are still in the defendant’s possession have been produced to the plaintiff and that the documents are listed as document 196 in the defendant’s affidavit of documents and 214 in the defendant’s supplementary affidavit of documents (see affidavit of S. Roberts sworn November 27, 2018 (the Roberts affidavit), at para. 9). The specific documents as listed at 196 and 214 were not attached as exhibits.

[8] The delinquency reports are relevant based on the pleadings and in particular based on paras. 60-64 of the amended fresh as amended statement of claim and para. 30 of the amended reply (to the amended statement of claim).

[9] To the extent that the defendant has not yet produced these delinquency reports in their possession, control or power, a further and better affidavit of documents shall be served listing the documents in schedule “A” and the documents shall be produced.

2. The mortgage payment and interest history on all the 17 alleged fraud mortgage files

[10] I am satisfied that these documents are relevant documents that exist and that have been omitted from the defendant’s affidavits of documents. The documents are relevant based on the pleadings and in particular based on paras. 27, 28, 60-62 of the amended fresh as amended statement of claim and paras. 8-11 of the amended statement of defence (to the fresh as amended statement of claim).

[11] A further and better affidavit of documents shall be served listing these documents in schedule “A” and the documents shall be produced.

3. Gary Curtis’s Final Horizon Report showing his termination status

[12] The plaintiff’s position is that the document has not been produced. The evidence of the plaintiff is that the Horizon Report for the plaintiff’s first term of his employment (employee #2004429) was produced but it has not been produced in its entirety for the last term of the plaintiff’s employment (employee #5078938). The Horizon Reports that the plaintiff submits have been produced to date are attached as an exhibit (see affidavit of Gary Curtis sworn October 12, 2018 (the Curtis affidavit) at para. 23 and exhibit V).

[13] The defendant’s position is that the document has been produced. The defendant’s evidence is that the plaintiff’s updated Horizon Report reflecting the plaintiff’s resignation was provided to the plaintiff on or about July 26, 2018, and is listed as document 213 in the supplementary affidavit of documents (see para. 17 of the Roberts affidavit). The updated document was not attached as an exhibit.

[14] The most current version of the Horizon Report in the material before me was printed on February 27, 2012, prior to the plaintiff’s resignation. Accordingly, the defendant shall produce a copy or further copy of this document showing the plaintiff’s termination status.

4. The BNS Termination Policy, BNS Progressive Discipline Policy and BNS Suspension Policy on Suspension

[15] The plaintiff relies on para. 17 of the amended statement of defence (to the amended fresh as amended statement of claim). Although this pleading references “Bank policy/Bank’s policies/Bank policies” this pleading does not reference these specific policies.

[16] The evidence before me does not satisfy me of the existence of these specific documents at this time (see paras. 19-21 of the Roberts affidavit).

[17] The motion in this regard is dismissed without prejudice to bring a further motion with respect to these documents on further evidence following examinations for discovery. At examinations for discovery questions can be asked about the existence of the allegedly missing documents.

5. The complete hard copy of the employee file #5078938 (with original content) along with all the documents stated in their affidavit of documents

[18] The relief with respect to (a)5. was resolved on consent as noted above.

6. All documentation (emails and letters) from Sue Pimento, Barry Ray and Kevin Conroy to the plaintiff, making the plaintiff aware that there were issues with 17 of his mortgage files

[19] In support of the relief in this regard, the plaintiff referred in part to redacted emails at pages 57-59 of the plaintiff’s supplementary motion record dated November 27, 2018.

[20] The evidence of the defendant is that all relevant communications from Sue Pimento, Barry Ray and Kevin Conroy to the plaintiff were listed in the affidavit of documents and copies produced (see paras. 25-26 of the Roberts affidavit).

[21] The evidence before me does not satisfy me that additional documents in this class of documents exist.

[22] The motion in this regard is dismissed without prejudice to bring a further motion with respect to these documents on further evidence following examinations for discovery. At examinations for discovery questions can be asked about the existence of the allegedly missing documents.

Preservation of Documents

[23] With respect to the plaintiff’s request that the defendant preserve the documents listed at (a)1-6, and further to my interim order dated October 24, 2018, to the extent that the documents exist, they shall continue to be preserved, subject to further order of the court. The documents have either been ordered to be produced or the request for production has been dismissed without prejudice. As it is possible that documents not ordered to be produced at this time may be ordered to be produced in the course of this litigation, the preservation order shall continue.

[24] With respect to the relief at paragraph (b) of the notice of motion, I decline to continue the interim preservation order. The request is in this regard lacks specificity. In addition, I was not referred to any pleading concerning the individuals listed at paragraph (b). Although a formal preservation order with respect to these documents is no longer in place, it is possible that certain specific documents in this category of documents may be ordered to be produced during the course of the litigation. Counsel for the defendant acknowledged his obligations in this regard. In declining to grant this relief I am also mindful of the Note of Master Abrams set out in her Reasons for Decision dated October 23, 2018 (2018 ONSC 6349).

Costs

[25] There was divided success on this motion. I award no costs of the motion including the attendance on October 24, 2018.

Conclusion

Master B. McAfee Date: December 11, 2018