Court File and Parties
MOTION HEARD: 20200110
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: West Liberty Financial Corp., Plaintiff
AND:
Gregor Flavell, Ocar Capital Group Inc., Ocar Energy LLC, State Street Trust Company Canada also known as State Street Bank and Darcy Forster, Defendants
BEFORE: Master B. McAfee
COUNSEL: N. Kotnala, Counsel for the Moving Party, the Plaintiff
Gregor Flavell, defendant in person, and for defendant Ocar Capital Group Inc.
HEARD: January 10, 2020
REASONS FOR DECISION
Background
1This is a motion brought by the plaintiff West Liberty Financial Corp. (the plaintiff) for an order compelling compliance with the order of Master Jolley dated July 2, 2019, and other relief.
2On October 27, 2016, Justice Chiappetta granted default judgment against the defendant Gregor Flavell (Flavell), the defendant Ocar Capital Group Inc. (Ocar Capital), and the defendant Ocar Energy LLC (Ocar Energy) in the amount of $382,283.35, costs in the amount of $3,000.00, plus interest.
3On February 24, 2017, Flavell was examined in aid of execution in his personal capacity and as representative of Ocar Capital and Ocar Energy.
4On July 2, 2019, Master Jolley ordered Flavell to answer undertakings given at the examination in aid of execution, as set out in Schedule “A” to the order, within 30 days, ordered Flavell to re-attend on an examination in aid of execution to answer questions arising from the answers ordered, ordered Flavell to pay costs of the motion in the amount of $1,000.00, within 30 days, and other relief.
5The main issue on this motion is whether the undertakings that Master Jolley ordered to be answered have in fact been answered. It is the plaintiff’s position that many undertakings remain outstanding. It is Flavell’s position that the undertakings have been answered or best efforts to answer the undertakings have been made. Flavell agrees that he has not paid the costs ordered by Master Jolley. Flavell’s position is that he is unable to pay costs at this time due to financial constraints.
Preliminary Issue
6As a preliminary issue on this motion, Flavell also appeared and responded to the motion on behalf of Ocar Capital. Flavell had not sought leave to represent Ocar Capital (see Rule 15.01(2) of the Rules of Civil Procedure). On an unopposed basis, for the purpose of this motion only, leave was granted to Flavell to represent Ocar Capital on this motion. Flavell advised that he is no longer associated with Ocar Energy and is no longer able to bind Ocar Energy.
Rulings on Undertakings
7An undertaking is not to be taken lightly, particularly if compliance with the undertaking is the subject matter of a court order. If a party is not able to provide the information and or documentation that the party undertook to provide, the party must be able to satisfy the court that genuine and substantial efforts or best efforts have been made to seek out the information and or documentation to answer the undertaking. Best efforts are what a reasonable person would conclude to be a best effort based upon the specific facts of the case and the nature of the undertaking (see Linamar Transportation Ltd. v. Johnson, 2014 ONSC 4415 (Ont. S.C.J.) at paras.14-16).
8What follows are my rulings on the undertakings that are the subject matter of Master Jolley’s order and that remain at issue. The question references have been taken from the chart appended to the order of Master Jolley as set out in the version of the chart provided to the court at the return of the motion.
9Undertaking No. 1, Q. 9, P. 7: The answer provided does not answer the undertaking. Best efforts have not been demonstrated. Flavell shall send a letter to the appropriate government department requesting confirmation of the information. If no response is received, a written follow up shall be sent.
10Undertaking No. 2, Q. 10, P. 9: The answer provided does not answer the undertaking. Best efforts have not been demonstrated. See ruling regarding undertaking no. 1.
11Undertaking No. 3, Q. 22, P. 9: It is agreed that this undertaking was answered during the motion when Flavell executed a consent.
12Undertaking No. 4, Q. 140, P. 26: It is agreed that this undertaking has been answered.
13Undertaking No. 4(b), Q. 141, P. 26-27: The undertaking has been answered. Flavell has confirmed that he does not have a current bank account with TD and no current statements exist.
14Undertaking No. 5, Q. 145, 27: The answer provided does not answer the undertaking. Flavell shall send a letter to TD requesting confirmation of the time frame when Flavell had the account, when the account was closed and why it was closed. If no response is received, a written follow up shall be sent.
15Undertaking No. 7, Q. 219, P. 38-39: The answer provided does not answer the undertaking. Flavell shall send a letter to Revenue Canada for production of the last Notice of Assessment and the precise date subsequent to which tax returns have not been filed. If no response is received, a written follow up shall be sent.
16Undertaking No. 8, Q. 229, P. 40: The undertaking has not been answered. Best efforts have not been demonstrated. Flavell shall send a letter to KPMG seeking the information. If no response is received, a written follow up shall be sent. Flavell will need confirm with KPMG the appropriate location to send the written enquiry.
17Undertaking No. 9, Q. 232, P. 41: The undertaking has not been answered. See ruling for undertaking no. 8.
18Undertaking No. 12, Q. 264, P. 47: This undertaking is no longer at issue.
19Undertaking No. 13, Q. 287-288, P. 50-51: This undertaking and undertaking nos. 14 and 15 were not pursued further on the motion on the basis that Flavell agreed to provide to plaintiff’s counsel with detailed evidence as to how Flavell is no longer involved with Ocar Energy and why Flavell can no longer bind Ocar Energy.
20Undertaking No. 14, Q. 289, P. 51: See ruling for undertaking no. 13.
21Undertaking No. 15, Q. 290, P. 51: See ruling for undertaking no. 13.
22Undertaking No. 16, Q. 302-303, P. 53: During argument Flavell provided further details. The question was resolved on the basis that Flavell agreed to send a copy of the document containing the particulars to plaintiff’s counsel by email.
23Undertaking No. 17, Q. 305, P. 53-54: The undertaking has not been fully answered. The name of counsel has been provided. The balance of the undertaking, being the address on the statement of claim and other documents filed with the court, has not been provided. The balance of the undertaking remains outstanding and shall be answered.
24Undertaking No. 19, Q. 403, P. 70: On the motion Flavell confirmed that he has no objection to answering this question notwithstanding that he is no longer involved with Ocar Energy. The undertaking has not been answered. Particulars have not been provided. The undertaking remains outstanding and shall be answered.
25Undertaking No. 20, Q. 407, P. 71: The undertaking has not been answered. No documents have been provided. The undertaking remains outstanding and shall be answered.
26Undertaking No. 21, Q. 430, P. 75: On the motion Flavell confirmed that he has no objection to answering this question notwithstanding that he is no longer involved with Ocar Energy. Flavell does not object to sending a follow up enquiry. A written follow up enquiry shall be sent.
27Undertaking No. 22, Q. 432-433, P. 75-76: See ruling regarding undertaking no. 13.
28Undertaking No. 23, Q. 434, P. 76: See ruling regarding undertaking no. 13.
29Undertaking No. 30, Q. 553, P. 96: Flavell agrees to continue efforts to obtain this information. A letter shall be sent to Revenue Canada requesting the information. If no response is received, a written follow up shall be sent. The undertaking remains outstanding and shall be answered.
30Undertaking No. 31, Q. 554, P. 96-97: The undertaking has not been fully answered. There is no evidence of enquiries of third parties. The undertaking remains outstanding and shall be answered.
31Undertaking No. 32, Q. 610, P. 107: The undertaking has been answered. There may be relevant proper follow up questions arising from the answer given, but the question has been answered.
32Undertaking No. 33, Q. 612, P. 107-108: The undertaking has been answered. See ruling for undertaking no. 32.
33Undertaking No. 35, Q. 653, P. 114-115: The undertaking has not been fully answered. On the motion Flavell confirmed that he does not object to answering this question as it relates to Ocar Energy notwithstanding that he is no longer involved with Ocar Energy. Although a list of different accounts was provided in response to undertaking no. 24, no other information has been provided. The undertaking remains outstanding with respect to the balance of the undertaking and shall be answered.
Compliance Timeline
34Flavell shall answer all outstanding undertakings within 90 days. All initial written enquiries shall be sent within 30 days. Any follow up enquiries shall be sent within 60 days. All written enquiries shall be copied to plaintiff’s counsel.
Previous Costs and Re-attendance
35There is no issue that the costs ordered payable by Master Jolley have not been paid. Flavell’s evidence is that he has no source of income or savings and that he intends to pay the costs once funds are available. Flavell is in breach of the order of Master Joelly with respect to payment of costs. I make no further order with respect to payment of these costs.
36Master Jolley also ordered a re-attendance. There is no issue that the order in that regard remains in force.
Costs of this Motion
37With respect to the issue of costs of this motion, although Flavell submits that no costs ought to be payable to the plaintiff, I am satisfied that some costs are payable. The plaintiff was substantially successful on this motion. The order of Master Jolley has not been complied with. No responding material for this motion was delivered in advance of initial return date for this motion. Only 20 minutes was originally confirmed for the hearing of this motion.
38I am mindful of Flavell’s evidence with respect to his ability to pay costs. However, in all of the circumstances, I am satisfied that Flavell ought to pay some costs of this motion. In my view a fair and reasonable amount that Flavell could expect to pay for costs is the all-inclusive sum of $1,000.00. Costs of the motion are fixed in the all-inclusive sum of $1,000.00 payable by Flavell to the plaintiff within 120 days.
Disposition
39Order accordingly.
Master B. McAfee
Date: January 22, 2020