COURT FILE NO.: CV-18-75993
DATE: 2019/12/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LE GROUPE CONSEIL BRONSON CONSULTING INC. and COX & KINGS LTD.
Plaintiffs
– and –
ATTORNEY GENERAL OF CANADA
Defendant
– and –
GREG THOMPSON, GRAY COLLETTE, and STEVE TREMBLAY
Peter N. Mantas and Christopher McLeod, for the Plaintiffs
Alexander Gay and Adrian Johnston, for the Defendant
Marc McLaren-Caux, for the Non-Party Respondents
HEARD: July 23 and 24, 2019
ENDORSEMENT
Corthorn J.
Introduction
[1] This action concerns the outcome of a procurement process with respect to Visa Application Centre Services in numerous locations around the world. The plaintiffs participated in that process. Ultimately, they were not awarded the contract for those services (“the Contract”). In this action, the plaintiffs claim damages of $195,000,000.
[2] To date, the parties have exchanged pleadings and demands for particulars; the defendant sought and was granted leave to amend its statement of defence; the parties brought motions to address documentary disclosure obligations; and the defendant served a notice of motion for an order for summary judgment and an order striking a portion of the statement of claim (“the Motion”).
[3] In the context of the Motion, the defendant served a summons to witness on three individuals for an examination out of court. Each individual was served in their respective capacity as a representative of a corporation said to be involved in the Bronson Consulting Group bids for the Contract (“the Non-Parties”).
[4] The summonses were served in early April 2019 and required each individual to attend for examination on April 12, 2019. A request made by the individuals for postponement of the examinations was rejected by the defendant. The examinations proceeded on April 12, 2019. The witnesses refused to answer a significant number of questions. Several undertakings were given by or on behalf of the witnesses.
[5] The defendant now seeks an order compelling the witnesses to answer the questions that the witnesses refused to answer, and an order to continue their respective examinations. In response, the plaintiffs and the Non-Parties request an order quashing the summonses. The parties and Non-Parties agreed that the request for an order quashing the summonses would be argued first and followed by argument on the defendant’s motion.
Background
[6] The Motion was originally returnable on March 19 and 20, 2019. The return of the Motion was adjourned to July 23 and 24, 2019. Ultimately, the Motion was not heard on those dates; they were instead used for argument on the matters described immediately above.
[7] The sequence of events with respect to the summonses to witness is as follows. On Monday, April 8, 2019, three individuals were served with a summons:
• Greg Thompson of Greg Thompson Consulting Inc.;
• Gray Collette of GC Cyber Corporation; and
• Steve Tremblay of Fifalde Consulting Inc.
[8] The three individuals and the three corporations are collectively referred to as “the Non-Parties”. The Non-Parties are all located in the Ottawa area. The individuals were summonsed to attend on the morning of April 12, 2019 at a local examiner’s office. The summonses informed the Non-Parties that they were required to attend for “[e]xamination out of court as witness before hearing”.
[9] In the summons, the Non-Parties were directed to bring with them and produce at the examination:
Any and all relevant documentation in [their] possession relative to th[e] action.
The Teaming Agreements between [name of non-party corporation] and Le Groupe Conseil Bronson Consulting Inc. for solicitation number B8694-150140/C and solicitation number B8694-150140/D.
[10] In addition, the Non-Parties were informed that they were required to produce at the examination “the documents mentioned in sub-rule 30.04(4) of the Rules of Civil Procedure”.
[11] In response to the summonses, the Non-Parties retained counsel. On April 11, 2019, their counsel spoke by telephone with and, later that day, sent an email to counsel for the defendant. In the email, counsel for the Non-Parties set out the bases for the request that the examinations be postponed.
[12] Amongst other matters, the bases relied on included that none of the pleadings in the action were attached to the summonses when served. The Non-Parties were, as a result, unable to determine the relevance of documents requested in the summons or that might be requested during the examinations. In addition, the defendant’s notice of motion for the Motion was not included with the summonses when served. This also had the effect of preventing the Non-Parties from determining the relevance of documents requested in the summons or that might be requested during the examinations.
[13] In his email to counsel for the defendant, counsel for the Non-Parties acknowledged that copies of the pleadings were produced to him following the morning telephone call on April 11, 2019. He noted that counsel for the defendant refused to produce copies of the affidavits filed in support of the Motion.
[14] Lastly, in the same email, counsel for the Non-Parties asserted that there was a lack of connection between the Non-Parties, the documents requested, and the issues raised on the Motion. Counsel noted that, as a result, the Non-Parties considered the summonses to be an abuse of process, and that they might move to quash the summonses.
[15] The request for postponement of the examinations was refused. The examinations proceeded on April 12, 2019. The witnesses each refused to answer a significant number of questions. Each examination was therefore terminated, with counsel for the defendant taking the position that, because of the nature and number of objections raised, it was not possible to complete the examination. Each of the examinations lasted approximately 40 minutes.
[16] The refusals to answer the questions posed range in number from approximately 25 to 35 per examination. The defendant relates the refusals to one or more of three issues it says are relevant on the Motion. Those issues are:
a) the status and role of one of the plaintiffs, Cox & Kings Ltd. (“CKL”), in the bidding process;
b) the relationship between subcontractors (including CKL) and the defendant; and
c) whether CKL was a typical subcontractor.
The Issues
[17] There are two issues raised on and in response to the defendant’s motion:
Are the summonses to be quashed because they constitute an abuse of process?
If not, is the defendant entitled to an order requiring the Non-Parties to re-attend and continue their respective examinations, including to answer questions previously refused?
Disposition
[18] All summonses shall be quashed without prejudice to the defendant to serve another summons on each of the Non-Parties in the future. The defendant’s motion with respect to refusals and re-attendance is dismissed.
Issue No. 1 – Are the summonses to be quashed because they constitute an abuse of process?
a) The Law
[19] Subrule 39.03 of the Rules of Civil Procedure deals with evidence obtained by examination of a non-party witness (R.R.O. 1990, Reg. 194). Subrule 39.03(1) provides that, “[s]ubject to sub-rule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.”
[20] In Seelster Farms Inc. v. Ontario, Emery J. summarizes the law with respect to motions to quash a summons to a non-party witness (2017 ONSC 4756, 139 O.R. (3d) 687). Factors to be considered or addressed on a motion to quash include the following:
• The party who seeks to examine the non-party has the onus to satisfy the court, on a reasonable evidentiary basis, that:
▪ the non-party has evidence that is possibly relevant to the action; and
▪ the proposed witness is in a position to offer the relevant evidence (Seelster Farms, at para. 38); and
• If the party seeking to conduct the examination satisfies this onus, the burden shifts to the party (or person) challenging the summons to demonstrate that the examination is an abuse of process (Seelster Farms, at para. 41).
[21] At paragraph 42, Emery J. notes that the test for relevance is not to be set too high. In Manulife Securities International v. Society Générale, Campbell J. concluded that the degree of relevance required is such that the court “must be satisfied that … there will likely be evidence obtained relevant to the [moving party’s] motion” [emphasis added] (2008 13367 (ON SC), 2008 ONSC 13367, 90 O.R. (3d) 376, at para. 14). Commenting on that decision in Coburn v. Barber, Master Haberman stated that “[t]he term ‘likely’ brings the standard closer to one of probability than possibility” (2010 ONSC 3342, at paras. 102-103).
[22] An examination under r. 39.03 cannot be a fishing expedition or the equivalent of an examination for discovery: Seelster Farms, at para. 42. Where the request for documents to be produced is overly broad, it is open to the court to infer that the purpose behind a summons is a fishing expedition: see generally, Dietrich v. Home Hardware Stores (2008), 46 C.P.C. (6th) 304 (Ont. S.C.) and Coburn, at para. 101.
b) Positions of the Parties and of the Non-Parties
[23] The Non-Parties request that the summonses be quashed. They seek to be “disentangled” from what they describe as a “ridiculous procedural crossfire”. The Non-Parties submit that, because of the very short notice that they were given regarding the timing of the examinations and the scope of the documents they were asked to produce, it is clear that the summonses were served for an improper purpose.
[24] The Non-Parties also point to the fact that, at the time the summonses were served, the defendant intended to seek leave to amend its pleading. Leave in that regard was granted to the defendant, on consent, approximately three weeks after the date on which the examinations were conducted.
[25] The Non-Parties submit that the amended statement of defence demonstrates that the defendant has, over time, developed a different understanding of the role played by CKL in the plaintiffs’ first and second bids on the Contract. The defendant’s notice of motion (on the Motion) reflects the defendant’s original understanding of CKL’s role in the bid process, has not been amended, and—at least with respect to that issue—is inconsistent with the defendant’s pleading. The Non-Parties question how, without the benefit of an amended notice of motion from the defendant, they will be able to assess relevance of documents requested and the relevance of questions posed.
[26] The plaintiffs’ position is that, as of July 2019, when these motions were argued, there was no “pending motion”. There is no return date for the Motion. The plaintiffs acknowledge that, as of April 2019, when the summonses were served, the Motion was scheduled to be argued on July 23 and 24, 2019. The plaintiffs point out that, regardless of the indefinite adjournment of the Motion, the defendant has not delivered a motion record in support of the Motion. The plaintiffs submit that the Motion is not before the court and, therefore, cannot be said to be a “pending” motion.
[27] The plaintiffs also point to the defendant’s stated intention, as of April 2019, to amend their notice of motion for the Motion. The plaintiffs question how the parties and Non-Parties can address relevance in the absence of a notice of motion in final form. The plaintiffs argue that a party cannot proceed with an examination pursuant to r. 39.03 until all materials on the motion have been finalized.
[28] For some of the same reasons as the Non-Parties, the plaintiffs question the potential for the Non-Parties to be in the possession of relevant evidence and documents. The plaintiffs characterize the examinations of the Non-Parties as fishing expeditions and an unwarranted imposition on the Non-Parties.
[29] The defendant’s position is that the examinations of the Non-Parties are relevant to both the original and proposed amended notice of motion. The defendant highlights that the key issue on the Motion was and remains the role of CKL within the Bronson Consulting bids. The defendant questions whether, given its role, CKL has standing to advance the claims set out in its pleading.
[30] The defendant submits that the Non-Parties, who were integral to the first and/or second bids by Bronson Consulting, likely have evidence to assist in understanding what role CKL played in the bid process on each occasion. The defendant acknowledges that, for it to succeed in opposing the motion to quash, the court must draw an inference and find that the Non-Parties potentially have knowledge about the involvement of other entities, including CKL, in the two Bronson Consulting bids.
[31] The defendant acknowledges that it was in error in relying on r. 30.04 and in referring, in the summonses, to “all documentation … relative to the action.” The defendant submits that those errors are not fatal, however. They assert that, when the remaining, specific description of the documents requested is considered, the request is entirely proper and sufficiently narrow in scope.
c) Analysis
[32] I find that the defendant did not approach the examination of the Non-Parties as required by the Rules of Civil Procedure or in keeping with the civility which parties and Non-Parties are entitled to expect as part of the litigation process. I find that the timing of service of the summonses, the refusal to grant a postponement of the examinations, the deficiencies in the summonses, and the continued pursuit of a broad scope of documents are such that they collectively constitute an abuse of process.
[33] I make that finding without first making a finding as to whether the defendant has satisfied the onus it has to demonstrate that the Non-Parties have evidence that is possibly relevant to the action and that the proposed witnesses are in a position to offer the relevant evidence (Seelster Farms, at para. 38).
[34] I shall deal first with the timing of service of the summonses and the refusal to grant a postponement of the examinations.
[35] The summonses were served on April 8, 2019. Each of the individuals served had to cancel previously arranged business meetings in order to be able to attend on April 12, 2019. One of the individuals summonsed had to cancel a meeting that had been organized over a period of six weeks. This meeting involved 23 clients of the Non-Party.
[36] There is no evidence provided by the defendant to support a finding of urgency such that, at a minimum, a brief postponement of the examinations could not have been granted. There is no evidence that the defendant would have been prejudiced in any way by a brief postponement of the examinations. By its conduct, the defendant denied the Non-Parties the opportunity to bring a motion to quash the summonses prior to the date on which the examinations were scheduled to proceed.
[37] This action is being case managed. If timing issues arose, including with respect to the return date for the Motion, those issues could have been addressed at a case conference.
[38] I turn next to the manner in which the defendant addressed the production to the Non-Parties of documents they required in order to respond to the summonses.
[39] First, it was not until April 11, 2019—the day prior to the date on which the examinations were scheduled—that the Non-Parties were provided with copies of the pleadings (as they then existed) and a copy of the defendant’s notice of motion on the Motion.
[40] Second, at no time prior to April 12, 2019 did the defendant inform the Non-Parties that the defendant had made an error by (a) referring to r. 30.04, and (b) requesting the production of “[a]ny and all relevant documentation in [the Non-Parties’] possession relative to this action”. The Non-Parties were given less than 24 hours to (a) review the pleadings in the action, (b) review their respective files for the documents requested; (c) consult with counsel, and (d) prepare for their respective examinations. It was unreasonable and unnecessary for the defendant to put the Non-Parties in that position. Doing so did not advance the issues on the Motion in any way.
[41] Third, the defendant continued to pursue production of documents, as broad in scope as identified in the summonses, when the examinations were conducted on April 12, 2019. For instance, on examination, Mr. Thompson was specifically asked whether he brought with him documents mentioned in rr. 30.04(4)-(5) and as otherwise itemized in the summons. When Mr. Thompson responded that he had not done so, he was asked to explain his objection to bringing the documents that day.
[42] It was not until argument on the motion to quash that counsel for the defendant acknowledged the errors in the contents of the summonses.
[43] Lastly, I address the timing of the Motion. As of July 23 and 24, 2019, when the parties and Non-Parties were before the court on these matters, there was no return date for the Motion. As of the date of this ruling, it is still unclear whether the defendant intends to pursue the Motion.
[44] The defendant is in no way prejudiced by the quashing of the existing summonses. If the defendant remains intent on examining the Non-Parties for the purposes of the Motion, the defendant may serve a new summons on each of the Non-Parties.
Issue No. 2 – Refusals
[45] Given that the summonses are quashed, it is not necessary to make a ruling on this issue.
Costs
[46] If the parties and Non-Parties are unable to agree on the costs of the defendant’s motion, they shall make written submissions as follows:
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;
c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;
d) The submissions, the documents referred to therein, and case law and other authorities shall be on single-sided pages;
e) The plaintiffs and the Non-Parties shall deliver their respective costs submissions by 4:00 p.m. on the fifteenth business day following the date on which this ruling is released;
f) The defendant shall deliver its costs submissions by 4:00 p.m. on the thirtieth business day following the date on which this ruling is released; and
g) The reply submissions, if any, of the plaintiffs or the Non-Parties shall be delivered by 4:00 p.m. on the thirty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.
Madam Justice Sylvia Corthorn
Released: December 04, 2019
COURT FILE NO.: CV-18-75993
DATE: 2019/12/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LE GROUPE CONSEIL BRONSON CONSULTING INC. and COX & KINGS LTD.
Plaintiffs
– and –
ATTORNEY GENERAL OF CANADA
Defendant
– and –
GREG THOMPSON, GRAY COLLETTE, and STEVE TREMBLAY
Non-Party Respondents
endorsement
Madam Justice Sylvia Corthorn
Released: December 04, 2019