Court File and Parties

COURT FILE NO.: CV-13-115776

DATE: 20201207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Victor Fradkin, Plaintiff

AND:

Irina Vialykh, Serguei Vialykh, Antoine & Muse Ltd., A&M Gourmet Foods Inc. and 2218207 Ontario Inc., Defendants

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Leo Klug, Counsel for the Plaintiff

Michael I. Binetti and Karen Bernofsky, Counsel for the Defendants

HEARD: In-Writing

ENDORSEMENT

[1] The plaintiff, Victor Fradkin, brings this motion in writing for an Order that the defendants produce a further and better affidavit of documents together with relevant documentation to be produced prior to the examination for discovery of the defendants.

[2] In addition, the parties have consented to an order extending the time to set this matter down for trial to May 2021.

[3] Since this is an opposed motion in writing, it proceeds in accordance with the procedure set out in Rule 32.12.1(4) and (5) of the Rules of Civil Procedure, R.R.O., 1990, Reg. 194.

[4] The defendants have requested an adjournment of this motion. Having reviewed the material filed by the plaintiff, I agree with the defendants that it would be unfair to both the defendants and the court to permit this motion to proceed at this time.

Facts

[5] The plaintiff’s claim against the defendants arises out of his alleged ouster from the defendant corporations in 2012. The plaintiff was an officer and director and a 50% shareholder in both corporations. He alleges that his shares in the company were improperly transferred. The plaintiff alleges that he was in charge of sales and marketing and was instrumental in the growth of the company from its inception until the fall of 2012.

[6] The Statement of Claim was issued on August 16, 2013.

[7] The Statement of Defence and Counterclaim was served on August 25, 2013. The defendants allege that the plaintiff forfeited his shares by defaulting on the terms of the shareholder agreement and that he stole money from the defendants.

[8] The Reply and Defence to the Counterclaim were served on October 16, 2013.

[9] The action languished for some seven years. The parties were not able to agree on a Discovery Plan. The plaintiff swore his Affidavit of Documents on May 13, 2019 and a Supplementary Affidavit of Documents on August 15, 2019.

[10] The defendants’ Affidavits of Documents were sworn on April 27, 2020.

[11] The parties agreed to conduct the examinations for discovery in September, 2020, but, on August 11, 2020, plaintiff’s counsel cancelled the examinations and brought this motion.

Positions of the Parties

[12] The plaintiff takes the position that the documents requested relate to liability, damages, or both. In particular, the plaintiff argues that the financial position of the company in 2012 is central to the issue of his improper ouster from the company. The plaintiff has also retained an expert business valuator to calculate his damages. The plaintiff has provided a letter from this expert stating that she requires ten categories of documents from January 1, 2010 to the present to determine the fair market value of the companies as of November 12, 2012 (the date of the plaintiff’s alleged ouster) and the present date.

[13] The plaintiff takes the position that all of these documents should be produced prior to examination for discovery because they are relevant to the issues in the action.

[14] Pursuant to Rule 37.12.1(4), the plaintiff served its Motion Record and factum in support of its motion in writing on the defendants on September 17, 2020. As indicated, the first motion record included a letter from the plaintiff’s expert listing the ten categories of documents that she required for the period January 1, 2010 to the present.

[15] Pursuant to Rule 37.12.1(5), which requires responding material within ten days after being served with the moving party’s material, the defendants’ responding motion record and factum were served and filed on September 25, 2020. The defendants have agreed to produce some of the documents requested for the period 2010 – 2012, but have objected to producing the other documents listed in the Notice of Motion.

[16] Following the service of the defendants’ factum, the plaintiff served a Supplementary Motion Record on September 30, 2020. This Supplementary Motion Record related to an issue that was tangential to the disclosure issue. The defendants objected to the filing of this Supplementary Motion Record.

[17] The plaintiff then filed a Further Supplementary Motion Record on October 19, 2020. That record contained a second letter from his expert, dated October 16, 2020. In this letter, the plaintiff's expert provided a “condensed list” of requested documents and further explanation for the documents requested.

[18] On October 20, 2020, counsel for the defendants emailed the plaintiff’s counsel and the Newmarket Court office objecting to the filing of this Further Supplementary Motion Record. Rule 37.12.1(4) requires the moving party to file its motion record and factum at the same time, and before the responding party files its motion record and factum. The rules do not permit the moving party to file supplementary motion records after it has filed its factum, and certainly not after the responding party has filed its factum.

[19] The defendants argue that they would be irreparably prejudiced if the Supplementary and Further Supplementary Motion Records were accepted and the motion is not adjourned to give the defendants an opportunity to respond. The defendants left the country on October 5, 2020, without having seen the content of the Further Supplementary Motion Record and are not in a position to swear an affidavit in response until they return to the country. Accordingly, the defendants have requested an adjournment to allow them to respond when they return to Canada.

[20] In my view, the letter contained in the Further Supplementary Motion Record significantly moves the goal posts in this case. The “condensed list” of documents requested by the plaintiff’s expert does not correspond with the argument advanced in the plaintiff’s factum or the order requested by the plaintiff. It is unclear to me whether the plaintiff is still requesting the documents set out in the order requested or is now seeking the documents in the “condensed list”.

[21] Similarly, some of the argument presented in the defendants’ factum is now moot. The defendants are entitled to a fair opportunity to respond to the plaintiff’s material filed after the defendants filed their factum.

[22] Opposed motions in writing are intended for motions where “the issues of fact and law are not complex”. Opposed motions in writing only work if the factums filed reflect the issues in dispute between the parties. Opposed motions in writing only work if the moving party files a single motion record, not a jumble of motion records, supplementary motion records and further supplementary motion records that do not correspond to the factum.

[23] If this motion is going to proceed in writing, the plaintiff should consider filing a revised factum addressing the “condensed list” of documents. The plaintiff should also consider filing a new draft order corresponding to the “condensed list” if that is what he is seeking. Either way, the plaintiff must file a single motion record and factum in accordance with Rule 37.12.1(4)(b), and the plaintiff’s opposed motion in writing shall not proceed until that rule is complied with.

[24] Upon receipt of that single motion record, factum and draft order, the defendants are entitled under Rule 37.12.1(5) to ten days to respond. The defendants may either file a new factum and/or record, or, pursuant to Rule 37.12.1(6), the defendants may indicate their intention to make oral argument, and a date will be scheduled for that purpose.

[25] The plaintiff’s motion is adjourned sine die. I am not seized.

Justice R.E. Charney

Date: December 7, 2020