Court File and Parties

COURT FILE NO.: CV-18-00609450

MOTION HEARD: 20201117

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shruti Gandhi, Westend Centre for Assisted Reproduction Limited, and Dr. Shruti Gandhi Medicine Professional Corporation, Plaintiffs, Defendants to the Counterclaim

AND:

Lamiaa Migahed, Lamiaa Migahed Medicine Professional Corporation, and Centre for Human Assisted Reproductive Medicine, Defendants, Plaintiffs by Counterclaim

BEFORE: Master B. McAfee

COUNSEL: M. Bacal, Counsel, for the Moving Parties, the Plaintiffs, Defendants to the Counterclaim

L. Kantor, Counsel, for the Responding Parties, the Defendants, Plaintiffs by Counterclaim

HEARD: November 17, 2020

REASONS FOR DECISION

[1] The plaintiffs, defendants to the counterclaim (herein “the plaintiffs”) move for an order requiring the defendants, plaintiffs by counterclaim (herein “the defendants”) to serve a further and better affidavit of documents.

[2] The plaintiffs’ original request for a short, opposed motion is dated June 24, 2020. Further to the direction of Administrative Master Muir dated June 29, 2020, the motion was deemed appropriate for summary resolution at a case conference. The motion was assigned to me. A telephone case conference was originally scheduled for July 10, 2020. On consent, the parties requested an adjournment of the case conference while they attempted to resolve the matters at issue. The parties were unable to resolve the matters at issue and requested a further date for a case conference. Two case conferences then proceeded before me. While the matters at issue could not be resolved in their entirety, the defendants did agree to produce certain documentation following one of the case conferences (see endorsement dated September 23, 2020, para. 2).

[3] No facta, briefs of authorities, or responding material were delivered.

[4] It is the position of the plaintiffs that Schedule “A” to the defendants’ affidavit of documents fails to list certain relevant documents. The documents at issue are itemized in a letter from plaintiffs’ counsel dated April 2, 2020. The plaintiffs do not take issue with the defendants’ original affidavit of documents being unsworn, with Schedule “B” not being itemized, or with one affidavit of documents being served on behalf of all defendants.

[5] It is the position of the defendants that the documents remaining at issue are not relevant and are disproportionate. The defendants also rely on Rule 29.1.05(1) of the Rules of Civil Procedure and the failure to agree to a discovery plan as a basis to oppose the motion.

[6] There is no issue of the existence of the documents (see endorsement dated September 23, 2020, para. 3). At the return of the motion the parties further confirmed that all data at issue exists in some form.

[7] At the return of the motion the parties confirmed that they have now agreed to a date range of October 1, 2017 to January 31, 2021, for the documents remaining at issue.

[8] This action arises as a result of an alleged breach of an agreement concerning the sale of a medical practice. The plaintiffs seek damages in the amount of $2,550,000. The amended counterclaim of the defendants seeks damages in the amount of $2,750,000.

[9] Rule 30.06(b) of the Rules of Civil Procedure provides:

30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,

(b) order service of a further and better affidavit of documents;

[10] I have considered the material filed for the motion and the submissions of the parties. What follows are my rulings with respect to the documents remaining at issue.

(i) Lamiaa Migahed Medicine Professional Corporation’s (“MPC”) daily OHIP Billing Sheets, which include billings of blood tests and professional ultrasound codes:

[11] I am satisfied that the documents are relevant based on the pleadings and in particular based on paragraphs 27, 28(a) and 28(b) of the statement of claim. See also section 2.1.1.2 of the Physician Agreement.

(ii) MPC’s monthly OHIP reconciliation:

[12] I am satisfied that the documents are relevant based on the pleadings and in particular based on paragraph 28 of the statement of claim. See also sections 2.1.1.4, 2.3 and 2.5 of the Physician Agreement.

(iii) The Centre for Human Assisted Reproductive Medicine Inc.’s (“CHARM”) daily complete and incomplete intra uterine insemination (“IUI”) billings under the Ministry of Health (“MOH”)’s Transfer Payment Agreement (“TPA”):

[13] I am satisfied that the documents are relevant based on the pleadings and in particular based on paragraphs 28(a) and (c) of the statement of claim. See also section 2.1.1.4 of the Physician Agreement.

(iv) CHARM’s monthly MOH reconciliation of IUI billings under TPA:

[14] I am satisfied that the documents are relevant based on the pleadings and in particular based on paragraphs 28(a) and (c) of the statement of claim. See also section 2.1.1.4 of the Physician Agreement.

(v) The defendants’ daily billing sheets and copies of invoices of all direct billing patients not covered by OHIP:

[15] I am satisfied that the documents are relevant based on the pleadings and in particular based on paragraph 28(a) of the statement of claim. See also section 2.2 of the Physician Agreement.

(vi) The defendants’ daily billing sheets and copies of invoices of all procedures not covered by OHIP, including without limitation sperm washes, and the sale and/or dispensing of medicine:

[16] I am satisfied that the documents are relevant based on the pleadings and in particular based on paragraph 28(a) of the statement of claim. See also section 2.2. of the Physician Agreement.

(vii) Monthly monitoring fees and paid receipts issued by CReATe Fertility Centre indicating the funded and non-funded in vitro fertilization fees paid by CReATe to any of the defendants:

[17] I am satisfied that the documents are relevant based on the pleadings and in particular based on paragraphs 28(a) and (h) of the statement of claim. See also section 2.1.1.8 of the Physician Agreement.

(viii) The defendants’ monthly bank statements indicating all revenue generated from any of the above listed sources:

[18] I am satisfied that the documents are relevant based on the pleadings and in particular based on paragraphs 26, 27, 28, 30 and 31 of the statement of claim, paragraph 46 of the amended statement of defence and counterclaim and paragraph 6 of the reply and defence to counterclaim.

[19] To the extent that the defendants argue that the production of the documents at issue would offend the principle of proportionality, there is no evidence before me from the defendants concerning the time involved in production, associated expense, undue prejudice or undue interference with the progress of the action. There no evidence that the documents are readily available to the plaintiffs from another source. There is no evidence concerning an excess volume of documents. The amounts involved in the claim and counterclaim are significant. Based on the record before me, production of the relevant documents does not offend the principle of proportionality.

[20] The defendants rely on Rule 29.1.05(1) and argue that the relief sought, including costs, ought to be refused because the parties have failed to agree to a discovery plan. In the circumstances of this case, I disagree. The plaintiffs have been requesting the documents for many months. It was not until this motion was requested, and following a case conference, that there was any agreement on the part of the defendants to produce any of the documents at issue. I have determined that the remaining documents at issue are relevant.

[21] The defendants shall serve a further and better affidavit of documents listing the above noted documents, for the agreed upon date range, in Schedule “A.”

[22] The plaintiffs were successful on the contested issues argued. I am satisfied that they are entitled to costs on a partial indemnity basis in the all-inclusive sum of $2,730.00, being a fair and reasonable amount that the defendants could expect to pay for costs in all the circumstances. The costs are payable to the plaintiffs within 30 days.

Master B. McAfee

Date: December 16, 2020