Court File and Parties

Court File No.: CV-14-503817 Date: 2019-02-21 Ontario Superior Court of Justice

Between: SORAYA EMAMI, also known as SHEILA EMAMI, Plaintiff – and – MARYAM FURNEY and ALEX FURNEY, Defendants

Counsel: Cameron Wetmore and Rajiv Joshi, for the Plaintiff Howard Crosner, for the Defendants

Heard: February 20, 2019

Before: M. D. FAIETA j.

Reasons for Decision

[1] The Plaintiff brings this action for the repayment of money that she lent on various occasions to the Defendants. The central issue at trial is whether the Defendants have repaid these loans.

[2] The Defendant provided the Plaintiff with a Book of Documents on the morning day of the first day of this trial. The Plaintiff states that the Book of Documents contains 36 documents that have not been produced by the Defendant. The Defendants state that only 32 documents have not been produced. The Plaintiff asks that these documents be excluded from evidence at trial, or alternatively, that she be permitted to examine the Defendants on these documents prior to the commencement of trial. Counsel for the Defendants was retained about one month ago and advises that the Defendant Alex Furney provided him with these additional documents this morning. He states that the Defendants did not deliver an Affidavit of Documents but rather produced documents and attended examinations for discovery.

[3] Regardless of whether it is demanded, there is a positive obligation on a litigant under Rule 30.03 of the Rules of Civil Procedure to deliver an affidavit of documents unless it is waived or an order under Rule 2.03 has been obtained that exempts a litigant from that obligation: Iannarella v. Corbett, 2015 ONCA 110, paras. 35 & 53. There is no evidence that any such Order or waiver was obtained by the Defendants. Rule 30.08(1)(a) of the Rules of Civil Procedure provides that where “… a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking, if the document is favourable to the party’s case, the party may not use the document at the trial, except with leave of the trial judge...”.

[4] Rule 53.08(1) of the Rules of Civil Procedure provides that leave under Rule 30.08(1) shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. Rule 53.08 In this context: (1) “prejudice” means prejudice for which costs are not an adequate answer or compensation; (2) “undue delay” means a delay that is unreasonable: Glass v. 618717 Ontario Inc., [2011] O.J. No. 2157, para. 12. In granting leave the court may, under Rule 1.05, impose such terms and give such directions as are just.

[5] In these circumstances, given that the documents delivered this morning go to the heart of the lawsuit, justice requires that leave be granted on the following terms which mitigates any concern regarding prejudice and undue delay:

• The trial of this action is adjourned to 10 am on February 25, 2019;
• The Defendants shall attend an examination on the 36 documents on February 22, 2019; and
• The Defendants pay the Plaintiff’s costs thrown away resulting from the adjournment of this trial and the examination of the Defendants.

[6] The Defendant raises a further matter. By letter dated February 18, 2019, counsel for the Plaintiff delivered several handwritten notes written by the Plaintiff not previously disclosed and corrected one answer given by the Plaintiff at the examination for discovery. These matters were discovered as counsel for the Plaintiff prepared for trial. The Defendants seek to examine the Plaintiff in respect of these matters. This request is unopposed. I order that the Plaintiff shall attend an examination in respect of these matters on February 22, 2019.

Mr. Justice M.D. Faieta Released: February 21, 2019