COURT FILE NO.: CV-17-3725
DATE: 20190822
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TITANIUM LOGISTICS INC. V. B.S.D. LINEHAUL INC., B.S.D. LOGISTICS INC., ANDREW SHIM and DAVID DAL BELLO
BEFORE: Van Melle J.
COUNSEL: Philip Holdsworth, for the Plaintiff
J. Sebastian Winny for B.S.D. Linehaul Inc., Kim G. Ferreira for David Dal Bello and Scott A. Rosen for B.S.D. Logistics Inc., and Andrew Shim
HEARD: August 21, 2019
E N D O R S E M E N T
[1] The plaintiff moves for an order: requiring the defendants to attend at their own expense to be cross-examined by plaintiff’s counsel on their respective affidavits of documents; requiring the defendants to serve a further and better affidavit of documents; and costs on a substantial indemnity basis.
[2] The motion is dismissed for the reasons that follow.
[3] The defendants, Andrew Shim and David Dal Bello were sales employees of the plaintiff, Titanium. Both resigned on July 31, 2017 having taken positions with the defendant B.S.D. Logistics (“Logistics”). Titanium, Logistics and B.S.D. Linehaul (“Linehaul”) are all trucking companies.
[4] The Statement of Claim was issued on August 28, 2017. A motion for an interlocutory injunction dated August 31, 2017 was eventually heard on September 22, 2017. Justice Shaw declined to order the interlocutory injunction with reasons released on December 15, 2017.
[5] In October 2017 Linehaul brought a motion for summary judgment on its counterclaim. Justice Seppi determined that Linehaul’s counterclaim required a trial. Linehaul waived examinations for discovery and set the action down for trial in October 2018. Prior to setting the action down for trial, Linehaul notified the other parties of its intention and pointed out that pursuant to the Rules of Civil Procedure any parties wishing to conduct examinations for discovery would have 60 days to do so.
[6] Titanium then proposed a form of discovery plan on October 25, 2018 and suggested that a conference call should occur in order to identify dates for all the various steps in the discovery process. No call was arranged.
[7] Titanium’s draft discovery plan called for examinations for discovery to be completed by February 15, 2019. Subsequently, when examinations had not been scheduled, a Discovery Plan was agreed to and signed on March 20, 2019. The examinations for discovery were to occur during the week of May 6, 2019.
[8] Titanium did not serve Notices of Examination and did not book the examinations with the court reporter’s office. On May 2 Titanium’s counsel advised that Titanium would not be attending for discovery and that a motion would proceed.
[9] The motion was not scheduled until all counsel attended Trial Scheduling Court on June 17, 2019.
[10] Regarding the ability to have cross-examinations on affidavits of documents in advance of examinations for discovery, Master McLeod (as he then was) in RCP Inc. et. al. v. Manfred Wilding et. al. 2002 CarswellOnt 2275, [2002] O.J. No. 2752, 115 A.C.W.S. (3d) 33 said at paragraph 9:
Bow Helicopters v. Textron Canada Ltd. (1981), 23 C.P.C. 212 (Ont. Master) is often cited for the proposition that it is inappropriate to make an order for a further and better affidavit of documents based on evidence of documents which should or must exist. That is the result in Bow Helicopters and in the case the usual practice of proceeding to discovery and asking the question about the existence of documents before bringing such a motion was endorsed. Bow Helicopters was decided under the "old rules" but was cited with approval by Henry J. in Greymac Trust Co. v. Burnett (1987), 1987 CanLII 4397 (ON SC), 59 O.R. (2d) 50 (Ont. H.C. )Read carefully, however, those cases really stand for the proposition that there must be evidence that documents have been withheld before an order under Rule 30.06 is appropriate and "speculation, intuition or guesswork are insufficient". They do not stand for the proposition that the only appropriate procedure in every case is to commence discovery and then to move for further production after obtaining admissions.
[11] At paragraph 12 Master McLeod enunciated the test:
The following principles should therefore guide the outcome of this motion:
a) Rule 30.06 continues to require evidence (as opposed to mere speculation) that potentially relevant undisclosed documents exist;
b) The level of proof required should take into account the fact that one party has access to the documents and the other does not;
c) The onus for reviewing documents and determining relevance in the first instance remains with the party having the obligation to produce;
d) While court inspection of contested documents is an option, that is not an efficient use of judicial resources and should not be the preferred procedure;
e) When dealing with categories of documents such as business records, it may not be possible to determine the extent or depth of the required production until preliminary questions have been asked or a preliminary level of production of a category of documents has been made;
f) If a more efficient solution exists, without creating unfairness to either of the parties, the costs and delay inherent in successive rounds of examinations and production should be avoided;
g) Rules 1.05 and 77 and in particular Rule 77.11 (1) (e) provide flexibility to devise an order other than those specifically contemplated by Rule 30.06.
[12] Titanium alleges that the affidavits of documents tendered by the defendants are deficient and that there is no reference to certain documentation (primarily emails) that must exist. There is, however, no persuasive evidence that there is any additional documentation. There is no persuasive evidence which would compel me to order cross-examinations on affidavits of documents prior to the examination for discovery. Given the issues before the court in this action, the better course would have been to proceed with the already scheduled examinations for discovery, ask questions about documents, and if it transpired that documents existed that had not been produced, bring any applicable motions at that time. There is no compelling evidence before me that there are any documents that are in the possession, power or control of any of the defendants that have not been produced. The argument that the plaintiff is unable to properly prepare for examinations for discovery without further documentary production is extremely weak. It appears that it has the information it requires to at least conduct the examinations. The best course in this matter is to proceed with the examinations.
[13] I must comment here on the evidence before me on this motion. The motion record contains the affidavit of Lorraine Bajada who deposes that she is a legal assistant at the firm representing the plaintiff. She attaches to her affidavit over 300 pages of affidavits from the parties and witnesses that have been used on other motions in this proceeding. Her affidavit does not comply with Rule 39.01(4). While affidavits may contain statements of the deponent’s information and belief as long as the source of the information and fact of the belief are specified in the affidavit. As well, a deponent must be capable of being cross-examined on his or her affidavit. In this case, simply attaching much of the material used on previous motions does not meet this requirement.
[14] The plaintiff’s failure to comply with the Rules of Civil Procedure insofar as they deal with the Discovery Plan is also troubling. The purpose of the Rules is to have matters before the court dealt with fairly and as expediently as possible. The plaintiff’s conduct in agreeing with three other counsel, to hold examinations over three days in May and then cancelling those examinations at the last minute does not seem to be a civil way for counsel to conduct themselves.
[15] As stated at the outset, the motion is dismissed. Mr. Rosen on behalf of Andrew Shim and B.S.D. Logistics claims partial indemnity costs of $2000. Mr. Ferreira on behalf of David Dal Bello claims partial indemnity costs of 3,794.77. Mr. Ferreira’s Costs Outline includes costs for the aborted examination for discovery in May. I am not awarding costs relating to the examination for discovery. Those costs can be dealt with at another time. I award Andrew Shim and B.S.D. Logistics costs of $1,500 inclusive of disbursements and HST. I award David Dal Bello costs of $1,500. inclusive of disbursements and HST.
[16] Mr. Winny, who did the heavy lifting on this motion for all the defendants, seeks partial indemnity costs of $9,353. His costs outline includes time spent at trial scheduling courts. Those costs are not properly part of the costs on this motion. I award costs to B.S.D. Linehaul Inc. in the amount of $8,200. All costs are payable by the plaintiff within 30 days.
Van Melle J.
DATE: August 22, 2019
COURT FILE NO.: CV-17-3725
DATE: 20190822
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TITANIUM LOGISTICS INC. V. B.S.D. LINEHAUL INC., B.S.D. LOGISTICS INC., ANDREW SHIM and DAVID DAL BELLO
COUNSEL: Philip Holdsworth, for the Plaintiff
J. Sebastian Winny for B.S.D. Linehaul Inc., Kim G. Ferreira for David Dal Bello and Scott A. Rosen for B.S.D. Logistics Inc., and Andrew Shim
ENDORSEMENT
Van Melle J.
DATE: August 22, 2019