Court File and Parties

Court File No.: CV-17-00585570 Motion Heard: 2019-03-20 Superior Court of Justice - Ontario

Re: Benecaid Health Benefit Solutions Inc., Plaintiff And: Kevin Trainor, 2072985 Ontario Inc. and Eclipse EIO, Defendants

Before: Master B. McAfee

Counsel: M. Sokolsky, Counsel for the Moving Party, the Plaintiff, Defendant to the Counterclaim R. Quance, Counsel for the Responding Parties, the Defendants and for the Plaintiffs to the Counterclaim Kevin Trainor and 2072985 Ontario Inc.

Heard: March 20, 2019

Reasons for Decision

[1] This is a motion brought by the plaintiff, defendant to the counterclaim (the plaintiff) for answers to questions refused on the examination for discovery of the defendant, plaintiff by counterclaim, Kevin Trainor (Trainor) in his personal capacity and on behalf of the defendant, plaintiff by counterclaim 2072985 Ontario Inc. (207) and on behalf of the defendant Eclipse EIO (Eclipse) (collectively the defendants).

[2] In response to the court’s concern with respect to the sufficiency of time confirmed for the motion, counsel advised that they did not require additional time and advised that they would keep to their confirmed time.

[3] There are three refusals at issue (Q. 152, P. 33; Q. 163, P. 35; Q. 181, P. 39). The parties agree that the three refusals stand or fall together.

[4] On the motion, the plaintiff confirmed that the refusals are limited to the period 2015 to November 2017, and further confirmed that the plaintiff does not have an issue with redactions.

[5] In determining the propriety of the questions taken under advisement and refused, I have applied the relevance test stated at Rule 31.06 of the Rules of Civil Procedure, the principles of proportionality set out at Rule 29.2.03 and considered the scope of discovery as summarized by Justice Perell in Ontario v. Rothmans Inc., 2011 ONSC 2504, [2011] O.J. No. 1896 (Ont. S.C.J.) at para. 129, as cited by Justice Faieta in Eisen v. Altus Group Limited, 2016 ONSC 1301 (Ont. S.C.J.) at para. 16.

[6] The defendants argue that there is no refusal to answer the questions and that the defendants undertook to answer the questions. I agree with the submission of the plaintiff that the defendants undertook to do something less than what was asked in the questions at issue on the motion. Having reviewed the relevant portions of the transcript referred to on the motion, I am satisfied that the three questions at issue were refused. Although there was an undertaking to provide a portion/example of the documents, there was a refusal to provide all of the documents requested.

[7] I am satisfied that the questions are relevant based on the pleadings and in particular are relevant to the plaintiff’s allegations that the defendants conspired to circumvent the obligations owed by Trainor and 207 to the plaintiff under the Non-Competition Agreement. See paragraphs 5, 11- 17 of the amended statement of claim. The questions shall be answered limited to the period 2015 to November 2017 and may be redacted.

[8] I am satisfied that the plaintiff is entitled to costs of the motion, having been successful on the contested refusals argued. In my view the all-inclusive sum of $2,300.00 is a fair and reasonable amount that the defendants could expect to pay for costs in all of the circumstances of the motion. The costs are payable by the defendants to the plaintiff within 30 days.

Master B. McAfee Date: March 25, 2019