Court File and Parties

COURT FILE NOs: CV-18-00602802 DATE: 2020-02-21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2281610 Ontario Inc. and Ford Motor Company, Plaintiffs – AND – 2620466 Ontario Limited, Bradley Nullmeyer, Timothy Quocksister, 2093150 Ontario Inc. carrying on business as Engineered Automotive and Steve Hudson, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Christopher Dunn, for the Third Party, Jeffrey Seigel Corey Groper, for the Plaintiffs Christopher Belsito, for the Defendants, Timothy Quocksister and 2093150 Ontario Inc.

HEARD: February 20, 2020

MOTION TO VARY

[1] On November 13, 2019, I rendered a judgment on a motion in this action in which I dismissed a motion by the Defendant, Timothy Quocksister, to set aside an interlocutory injunction granted by Koehnen J. on August 29, 2018 which prohibited the re-sale of a high-end sports car. In the course of that ruling, I noted that counsel for Mr. Quocksister had made submissions on the credibility of Jeffrey Seigel, an automobile broker who was examined under Rule 39 of the Rules of Civil Procedure, and I reflected on those submissions and Mr. Seigel’s credibility.

[2] Mr. Seigel is a Third Party in a Third Party Claim related to this action, but no relief was sought against him in the motion. Mr. Seigel’s counsel attended and was on record at the Rule 39 examination and was served with all motion materials. However, he did not make an appearance at the motion.

[3] As it turns out, Mr. Seigel’s credibility was front and centre in the arguments made by Mr. Quocksister. Mr. Seigel’s counsel says that the way in which his client’s credibility featured in my judgment took him by surprise, as he had not anticipated that Mr. Seigel’s credibility would be under attack at the motion. He now moves to vary my reasons for judgment of November 13, 2019. His specific concern is over paras 13 and 14 of my reasons:

[13] Counsel for Quocksister submits that Seigel is not a credible witness, which may well be the case. Seigel was caught in his examination trying to hide the fact that he knew or had any direct dealings with Andrew Nullmeyer, but it turns out that he had been paid a secret commission of $200,000 by Andrew Nullmeyer on the sale to Quocksister and submitted an invoice directly to Andrew Nullmeyer for that amount.

[14] Catching a witness in a lie like that does give me pause, but it does not entirely convince me that I should take Quocksister’s word over Seigel’s. Seigel testified that anyone in Quocksister’s position would have known about the restrictions on re-sale of this type of Vehicle. As he put it, “I think if you’re a car person at all, never mind in the car business, you know the restrictions.” Given the notoriety of these rare, ultra high-end cars among car dealers, Seigel’s statement makes a certain amount of sense. One does not pay $1,500,000 for an automobile without knowing a little something about it.

[4] I am not sure why it would surprise Mr. Seigel or his counsel that this issue of credibility over Mr. Seigel’s relationship, if any, to Andrew Nullmeyer, would be a feature of Mr. Quocksister’s case. Mr. Seigel was examined on the issue and his counsel was in attendance. Moreover, the point about Mr. Seigel receiving a secret commission from Andrew Nullmeyer was emphasized by counsel for Mr. Quocksister in his factum, which was served on counsel for Mr. Seigel in advance of the motion. Paras 48 and 50 of Quocksister’s November 2019 factum state:

[48] Unbeknownst to Quocksister, on or about April 23, 2018 Seigel had submitted an undisclosed commission invoice to Andrew Nullmeyer in the amount of $226,000.00. The invoice stated “As per our agreement, upon wire transfer completion in the amount of $1,500,000.00 received by 2420466 Ontario Limited…

[50] It is worth noting that during the examinations of both Nullmeyer and Seigel, Nullmeyer denied the existence of the payment of this second commission payment entirely and counsel refused to allow Seigel to answer any questions related to it. Subsequent to Nullmeyer’s examination, his counsel admitted that the undisclosed payment to Seigel was made by Andrew in the amount of $226,000.00 and a copy of the Seigel Motor Company’s invoice referred to above was produced.

[51] It is submitted that the inference to be drawn is that Nullmeyer lied in his examination in an attempt to protect his son, Andres, from being added to the litigation. It is further submitted that Seigel refused to answer these questions to protect himself from the Third Party Claim wherein Quocksister seeks damages for breach of their agreement along with the monies paid to Seigel… In any event, Quocksister is now aware Seigel earned a second commission without disclosing it and submits that this is a violation their agreement as Quocksister is entitled to half of the $226,000.00 paid to Seigel.

[5] The same issue of Mr. Seigel’s dealings with Andrew Nullmeyer were thoroughly reviewed during the Rule39 examination of Mr. Seigel. The thrust of this part of the examination was, as set out in the portions of Quocksister’s factum quoted above, whether Mr. Seigel had any dealings with Andrew Nullmeyer. Mr. Seigel denied that he had any such dealings, and counsel for Mr. Quocksister confronted him with evidence that he had, in fact, got an undisclosed commission from Andrew Nullmeyer.

Questions 412-418:

Q: You don’t recall any dealings directly with Bradley [Nullmeyer]?

A: No. The only communication that I had is putting that…one person, being Quocksister, there together with Mr. Nullmeyer for the company.

Q: You keep on saying ‘putting them together’. What I’m trying to get at, I’m interested in, is how did you…how did you put them together?

A: Phone. Phone, ‘Here is a phone number.’

Q: Okay, so that’s what you would have done. You would have said, ‘Here is Nullmeyer’s phone number’?

A: Yes.

Q: Okay. So you don’t recall any conversation directly with Nullmeyer?

A: Not that I recall, no.

Q: And what about Hudson?

A: No, I have never had communication with Hudson about this car.

Q: Okay, and what about Andrew Nullmeyer?

A: No, the only communication I ever had with Andrew was just for one second, wen I was sitting with his…at that point, I found out his dad…in a truck sitting outside of EA…sorry, Engineered Automotive.

Questions 424 -427:

Q: We received…I’m going to show you a document. This is wat we got from Mr. Nullmeyer’s lawyer. I’m giving a copy to you and your counsel.

A: M’hm.

Q: An invoice sent to Andrew Nullmeyer…

A: Okay.

Q: …April 23rd, 2018, from you, $200,000. With HST it comes to 26, and it says: ‘…As per our agreement, upon wire transfer completion in the amount of $1,500,000 received by 2620466…”

Mr. Dunn [for Mr. Seigel]: Okay, go ahead.

Q: So did you charge Andrew Nullmeyer $226,000 in connection with this transaction?

Mr. Dunn: Don’t answer the question. I’m not sure, counsel, that’s relevant to the issues on the motion.

[6] Mr. Seigel certainly was on notice that the apparent contradiction in his testimony was a live issue – i.e. that, on one hand, Mr. Seigel says that he had no more than fleeting contact with either of the Nullmeyers and had only ever communicated with Andrew Nullmeyer for “one second” while sitting in a truck, while, on the other hand, he had been paid on an invoice for $226,000 which he issued to Andrew Nullmeyer in respect of the transaction in issue. He was questioned closely about it by counsel for Mr. Quocksister, and his own counsel intervened in that questioning to protect him from answering or explaining the very contradiction that was at the heart of this portion of the cross-examination.

[7] Counsel for Mr. Seigel now brings a motion to vary on the basis that since he did not appear at the hearing of the original motion, the court never got to hear Mr. Seigel’s explanation of what transpired with respect to his invoice to Andrew Nullmeyer. With respect, that is not a cogent ground on which to seek a variance. Whatever explanation might exist, Mr. Seigel could have presented it at the hearing of the motion. It was front and centre as an issue and had been put fairly and squarely to Mr. Seigel in his Rule 39 examination.

[8] Counsel for Mr. Seigel relies on Rules 59.06(1) and (2)(a) in bringing the present motion:

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made…

may make a motion in the proceeding for the relief claimed.

[9] The paragraphs complained of by Mr. Seigel are not an accidental slip, nor do they arise from fraud or from facts arising or discovered after my judgment was rendered. They reflect submissions made by counsel for Mr. Quocksister based on evidence that was fully present in the evidentiary record and fairly canvassed with all relevant parties.

[10] What counsel for Mr. Seigel really complains of is not that the evidence was not in the record, but that the evidence was presented to me by counsel for Mr. Quocksister without my having had the benefit of having heard Mr. Seigel’s perspective on that evidence. That, however, is not an error that can now be corrected. Mr. Seigel’s perspective on the evidence in the record was not presented to the court because no one appeared in court to present that perspective; and this was despite the fact that Mr. Seigel had been examined on and was aware of the challenge to his credibility in minimizing his dealings with Andrew Nullmeyer in the face of his issuing a $226,000 invoice to Andrew Nullmeyer.

[11] Counsel for Mr. Seigel has explained that the situation in which Mr. Seigel finds himself is a difficult one, and I do understand that. Since no specific relief was sought against him in the motion, Mr. Seigel sought to economize and did not instruct his counsel to attend at the hearing. At the same time, he had his counsel attend at his Rule 39 examination to protect his position, which is also understandable and proper. As it turned out, his counsel then voiced an objection to Mr. Seigel having to put on the record the very explanation that he is now anxious to present.

[12] There are no grounds here on which to vary anything in my reasons of November 13, 2019. The issue of Mr. Seigel’s credibility as reviewed in paras 13 and 14 of my reasons was squarely in the record and had been put to Mr. Seigel in his examination.

[13] For the record moving forward, it is fair to point out that my comments about Mr. Seigel’s credibility were made in the absence of any explanation from Mr. Seigel except what I read in his Rule 39 examination. In a future context as the main Claim and Third Party Claim progress, counsel for Mr. Seigel or Mr. Seigel himself may have an opportunity to revisit the issue and articulate for the record Mr. Seigel’s perspective on the matters covered in paras 13 and 14 of my November 13, 2019 reasons for judgment.

[14] The motion to vary is dismissed.

[15] Counsel for Mr. Quocksister and counsel for the Plaintiff were in attendance at the motion, but they prepared no materials and made no submissions (except to answer a question asked by me). There will be no costs of this motion for or against any party.

Date: February 21, 2020
Morgan J.