COURT FILE NO.: FS-19-94161
DATE: 2021 03 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shahinda Lokhandwala
Sarah Boulby and Kenneth Fishman, for the Applicant
Applicant
- and -
Imran Khan, 9633880 Canada Inc., Zarinataj Khan and Ishaq Khan
Heather Hansen and Jonathan Robinson for Imran Khan, and as agents for Zarinataj and Ishaq Khan
Respondents
COURT FILE NO.: CV-20-3977
DATE: 2021 03 17
BETWEEN:
Zameer Lokhandwalla, also known as Zameer Lokhandwala, and Sherazad Lokhandwala
Hershel Sahian, for the Plaintiffs
Plaintiffs
- and -
Shahinda Lokhandwala, Imran Ishak Khan and 0932293 B.C. Ltd. operating as Cellicon
Katherine Lee and David Milosevic for the Defendant Shahinda Lokhandwala
Scott Price, for the Defendants Imran, Zarinataj and Ishak Khan and 0932293 B.C. Ltd.
HEARD: March 2nd, 2021. Further appearances March 8th and 11th, 2021
REASONS FOR DECISION
LEMAY J
[1] I have been case-managing the family law litigation in this matter since late May last year. There have been a series of motions in this matter since I became the case management judge, including a motion for sale of the matrimonial home (2020 ONSC 3209), a motion on disclosure (2020 ONSC 6857), an urgent motion on whether or not a planned sale of business could proceed, in which oral reasons were given during the first week of December 2020, and a motion on variation of spousal and child support (2020 ONSC 7705). I also conducted an all-day settlement conference in mid-December of 2020. In short, this case has consumed a significant amount of judicial resources.
[2] The style of cause reflects that there is a related debt action that has been brought by Shahinda Lokhandwala’s brothers against Ms. Lokhandwala and Mr. Imran Khan. The debt action is not at issue for these motions, but I did provide procedural directions on the debt action at the beginning of the first day of hearing and counsel on the debt action were all present on all days of the hearing.
[3] Before me is a pair of motions that have been brought relating to undertakings, under advisements and refusals that were provided at the questioning that took place in the family law matter between the first week of January and the first week of February of this year.
[4] The trial in this matter remains scheduled for May of 2021. As a result, I was originally required to provide the parties with a decision within seven days of hearing the motion. Events have overtaken that requirement as Cellicon has been petitioned into bankruptcy by operation of the Bankruptcy and Insolvency Act R.S.C. 1985 c. B-3. As a result, I conducted two further case conferences in this matter, one on March 8th, 2021 and one on March 11th, 2021. The end result of those appearances is that all parties and the Trustee in Bankruptcy have consented to me releasing my decision as long as any relief directly against Cellicon is stayed pending the issuance of the lift stay order. Given the impending trial date, these reasons are of necessity of a summary nature.
[5] As part of the materials on this motion, the parties provided charts showing the outstanding refusals and items taken under advisement. I have attached the completed copies of the charts to the parties’ copies of this decision. I have not included them in the reported copy, as the charts contain financial information that should remain confidential.
[6] In order to provide the parties with some context to the decisions in the chart, I will set out the background facts, some guiding principles as well as some observations on the major categories of questions that are in dispute between the parties.
Background Facts
a) The Parties
[7] The Applicant Shahinda Lokhandwala and the Respondent Imran Khan were married in September of 2002 and separated in September of 2018. It was an arranged marriage. In addition, the parents of Imran Khan, Ms. Zarinataj Khan and Mr. Ishaq Khan, are Respondents to this litigation. All the personal parties were represented by counsel or an agent on this motion, so I will refer to them by their first names.
[8] There are also two corporations that are parties to the litigation. One is 963380 Canada Inc. (“963 Corporation”), and the other is 02932293 B.C. Ltd. (“Cellicon”). Neither corporation was a moving party on these motions, and neither corporation filed responding materials or made any submissions. However, Imran Khan was questioned in both his personal capacity and as a representative of the companies, and he was present in person at the hearing dates.
[9] Therefore, some of the undertakings that I have directed to be answered affect Cellicon in particular, which is why further hearings were held in this matter. While ordered, those undertakings are stayed pending the parties’ negotiations over a lift stay motion.
[10] Shahinda and Imran moved to Canada in 2012, and incorporated a business selling cell phones. This company was operated as Cellicon. At the time of incorporation, Cellicon was incorporated in the name of Zarinataj Khan, who is Imran’s mother. The parties have a different version of events as to both why Zarinataj incorporated the company, as well as who providing the financing. As a result of a reorganization in 2015, Imran now owns 50 percent of the shares of this company. Shahinda alleges that Cellicon is beneficially owned equally by herself and Imran. Imran does not accept this position. I do not have to resolve this issue on this motion, but it is necessary to set out some of the background facts to provide context for the decisions that I have made.
[11] In 2016, Imran and a business partner incorporated 963 Corporation. This company is a purchaser, warehouser and reseller of cell phone inventory. Many of the clients of 963 Corporation are Cellicon stores, including the corporate stores.
[12] Since I conducted an all-day settlement conference in this matter in mid-December, there has been a change of counsel. In the Affidavits filed on this motion, Imran Khan deposed that he was unable to continue paying his former counsel and, as a result, had to be self-represented. Imran also deposed that, as a result of receiving monies from his family, he was able to retain his current counsel.
[13] Imran’s current counsel also appeared on this motion as agents for his parents. However, counsel was still reviewing the file and could not determine whether she could appear as counsel for Zarinataj and Ishaq, as the possibility of conflicts had not been ruled out. Given the rapidly approaching trial date, counsel was advised that she had until March 12th, 2021 to advise as to whether she would be acting for Zarinataj and Ishaq at trial.
b) The Business
[14] Cellicon was established shortly after Imran and Shahinda moved to Canada. There is a dispute over where the money to establish the business came from. Imran and Zarinataj say that the money (and the idea) to establish the business came, in part, from Zarinataj. Shahinda says that Cellicon was always a joint venture between herself and Imran, and that a substantial portion of the funds to establish the business came from loans from Shahinda’s family. It is these alleged loans that form the basis of the debt action brought by Shahinda’s brothers against her, Imran and Cellicon.
[15] Cellicon operates a series of stores across Canada, with the bulk of them based in British Columbia and Ontario. Some of these stores are owned and operated by Cellicon directly, while others are run by third party operators under what can best be described as Franchise Agreements.
[16] As I understand it, a key part of the Cellicon business comes from the leases that it controls. One of the ways that Cellicon has run its business is to obtain leases on properties in prime mall locations and then sublet these properties to the operators.
[17] As I have mentioned, 963 Corporation purchases cell phone inventory and re-sells it to the operators. These sales may be mandated by the Franchise Agreements. The two companies are related entities, and Imran owns a significant portion of the shares of 963 Corporation.
[18] In addition, there is a corporation owned by Essaadia Elmouimine and Shahinda. The company is 9263817 Canada Inc. This company operated approximately five (5) Cellicon locations in the Province of Quebec. Shahinda has been having difficulties obtaining information about this company from Ms. Elmouimine.
[19] It is common ground that both Imran and Shahinda played a role in the business prior to the parties’ separation in September of 2018. It is also common ground that Shahinda was no longer involved in the business as of November 5th, 2018. However, the relative roles that each played in the businesses is a question of significant dispute. I need not resolve that dispute on this motion.
[20] In the last year or two, Imran’s niece, Zeeba Dholakia has been involved in the business. Indeed, one of the questions that was originally refused by Imran was to advise of the tasks that Ms. Dholakia had been asked to do for Cellicon. Imran has now agreed to answer that question. In addition, Ms. Dholakia has set up her own companies, and there are questions about the establishment and purposes of these new companies.
[21] The two businesses controlled by Imran provided the bulk of the income for this family, if not all of it. It is much less clear how much money the business earned, or has been earning, both before and after separation. That question has founded a great deal of the litigation in this case, and the financial state of the corporation is hotly contested.
[22] There are also significant disputes between the parties about whether Cellicon had cash transactions, whether Cellicon paid for personal expenses for the family and how much of Cellicon’s revenue was in cash that was used to pay for these expenses. Both sides have retained business valuators in order to address this question and others.
[23] The report from Imran’s valuator has been provided to Shahinda and her counsel and was the subject of questioning. Given the very significant delays in this matter, the valuation report was only provided on January 28th, 2021. As a result, Shahinda’s valuation report remains to be completed.
[24] Imran alleges that the pandemic has caused very significant losses to Cellicon and 963. He has provided several Affidavits to the Court (on both this motion and on others) advising that Cellicon is insolvent and/or is on the verge of bankruptcy.
[25] In his Affidavit filed on February 26th, 2021, Imran advised that he had retained the services of a trustee in bankruptcy, as well as counsel at Fogler Rubinoff to assist in various bankruptcy filings. A notice of proposal was filed on February 22nd, 2021. It was not provided to either myself or to Shahinda’s counsel until February 26th, 2021.
[26] Between the filing of this motion and the issuance of these reasons, I have been advised by counsel for Shahinda that Cellicon has filed for bankruptcy protection. I was subsequently advised by Imran and his counsel that Cellicon had been petitioned into bankruptcy. I will return to this issue below as I provided some directions on this issue both at the first day of hearing of the motion and at the two subsequent case conferences.
c) Issues Relating to the Children
[27] Imran and Shahinda have two children. Most of the issues in this case have not addressed the children. They are both currently enrolled in Mentor College, which is a private school in Mississauga. In his motion materials, Imran suggests that the private school fees are unaffordable. This is a matter to be determined at trial.
[28] In addition, Shahinda has taken the position that she may be seeking to move the children to Austin, Texas where one of her brothers lives. Shahinda asserts that she would have family supports and be able to get a job with her brother’s business if she is not able to secure what she views as a reasonable amount of ongoing support from Imran.
d) The Genesis of this Motion
[29] Last fall, as part of the case management process, I put in place a process for disclosing documentation between the parties. If the parties had a dispute over what was to be disclosed prior to questioning that dispute would be resolved by way of a motion before me. That process culminated in me issuing the November 13th, 2020 decision outlining additional documents to be produced in advance of questioning.
[30] After the pre-questioning disclosure was mostly completed, the parties attended at questioning in January and February of this year. There are some features of that questioning that should be noted.
[31] First, Imran had terminated the services of his previous lawyer as a result of an alleged inability to pay fees. Imran says that this was as a result of the ballooning cost of the litigation, and because of the collateral litigation that had been commenced by Shahinda’s brothers. Imran’s Affidavit sets out that he was only able to retain his current counsel because of monies that he received from family members other than his parents, who Imran says also had to end their retainer with their counsel.
[32] As a result of this change in counsel, Imran was self-represented when he conducted the examination of Shahinda. He was also self-represented at his own examination. Having already determined that Bielby J.’s support order should not be varied and having subsequently conducted an all-day mediation in this matter, I am not prepared to provide any further comments on Imran’s claims of impecuniosity at this point.
[33] Second, both Ishaq and Zarinataj have described concerns with the way in which their questioning was done. The concerns are described in their Affidavit in almost identical language. I addressed this allegation with counsel during argument and was advised that it was no longer a material allegation given that the parties have agreed on the terms of any reattendance. I will set that agreement out below.
[34] Third, Imran cancelled his original discovery date on the basis that he had to attend at the hospital. The discovery date was originally set for mid-January. Imran cancelled this date on the basis that he had urgent medical issues that required him to go to the hospital. He has produced only redacted documentation to support this assertion. He re-attended at a rescheduled questioning on February 1st, 2021.
[35] As a result of these events, there were significant under advisements and refusals left to be addressed. I discovered this fact during a case conference that was held on February 4th, 2021. At that time, Ms. Boulby advised me that there were “hundreds” of under advisements and refusals that were outstanding. I advised the parties that I would schedule a motion for March 2nd, 2021 but that I was not persuaded that the Court would have the time to hear and decide a motion on “hundreds” of undertakings.
[36] There is some suggestion in Imran’s materials that Ms. Boulby exaggerated the items that were outstanding at the time of the February 4th, 2021 case conference. Having reviewed the under advisements and refusals charts I disagree with this assertion.
[37] At the time the motions were brought, there were six items from Shahinda’s questioning that were outstanding. However, there are 109 separate items on Imran’s chart (attached) that were outstanding. Some of these items include two questions. There were also 22 separate outstanding items on Zarinataj’s chart, again with some of the items including two questions. This number does not include the additional requests that were made for bank records from Zarinitaj. Finally, there were six additional outstanding items on Ishaq’s chart, again with some of the items including two questions. In short, there were approximately 150 separate outstanding items from the questioning of the Khans as of February 2nd, 2021. This was a very significant list of items.
e) The Evidence on This Motion
[38] In my endorsement of February 9th, 2021, I set out a timetable for the serving and filing of materials for this motion. As part of that timetable, I directed that the parties were to file, and jointly complete, charts that would set out the undertaking, under advisement or refusal along with each party’s argument.
[39] Those directions were complied with. As is often the case, this exercise resulted in the narrowing of the issues between the parties. In particular, in the delivery of Imran and Zarinataj’s responding chart on February 26th, 2020, Ms. Hansen agreed to answer more than half of the outstanding questions that had been taken under advisement and/or refused. I understand that the delivery of this chart was the first time that Ms. Boulby became aware that the bulk of these questions would actually be answered. In correspondence dated February 17th, 2021, Ms. Hansen advised that Imran would answer a couple of different questions, but she did not indicate the scope of the questions that Imran had changed his mind about answering.
[40] Each of the individual parties filed Affidavits on this motion. They were specific to evidence relating directly to the questioning. The summary I have set out above comes from those Affidavits, the transcripts that were filed and my previous decisions on this matter.
[41] The summary of facts that I have set out above has been provided for the purposes of explaining my determinations on the relevancy of various items that are sought by the parties. It should not be taken as a final finding of fact on any of the issues in this case and it does not bind the trial judge in any way.
f) Case Management Directions
[42] At the outset of the hearing on March 2nd, 2021 counsel on the loan action also attended. We are in the process of catching the debt action up to the main family law action so that both can proceed to trial and can be heard together, or one after the other, in the discretion of the trial judge.
[43] I understood from counsel on the debt action that discoveries were being held on March 4th and 5th, 2021. As a result, I had assumed that the parties would know after that date whether there were going to be any outstanding refusals or under advisements.
[44] As a result, I provided the following case management directions at the hearing on March 2nd, 2021:
a) A further case conference will be held on March 8th, 2021 to discuss the progress of the debt action and further steps in the litigation more generally.
b) Ms. Hansen is to advise by no later than March 12th, 2021 as to whether she was going to represent Zarinataj and Ishaq.
c) At the case conference, we were also going to discuss whether there are any issues that have arisen as a result of the Notice of Intention.
[45] I also made it clear to the parties, and particularly to Imran and his counsel, that I expected to hear about the bankruptcy proceeding promptly and that I did not expect proceedings to be taking place before a different judge. In other words, I expect the bankruptcy proceeding to come to me so that I can ensure that it is addressed in a manner that is consistent with the family law and debt collection actions to the extent that is possible.
g) Post-Hearing Issues
[46] At the hearing on March 2nd, 2021, I had directed a further case conference take place on March 8th, 2021. I was preparing my reasons on March 5th, 2021 when I received notice from Shahinda’s counsel that Cellicon had made an assignment into bankruptcy pursuant to section 50.4(8)(b.1) of the Bankruptcy and Insolvency Act. This assignment had taken place on March 2nd, 2021 and the certificate from the Registrar is dated March 2nd, 2021. The Applicant’s correspondence of March 5th, 2021 alleges that all of the Khans have behaved in bad faith in this matter by failing to disclose the bankruptcy at the hearing on March 2nd, 2021.
[47] My assistant received the correspondence from Shahinda’s counsel at 9:30 a.m. on March 5th, 2021. My judicial assistant did not receive confirmation of the bankruptcy filing from Imran’s counsel (who is also agent for Ishaq and Zarinataj) until 4:53 p.m. on March 5th, 2021. Imran provided an Affidavit, which outlines the history of this action and various legal decisions, sets out the facts of the bankruptcy and concludes with the following paragraphs:
Among other important consequences of the assignment into bankruptcy, one stands out in particular: following the assignment, I no longer have control of Cellicon. This means I can no longer act or speak on behalf of the company and that I do not have direct access to Cellicon. I cannot access, e.g., Cellicon’s accounts even for the purpose of obtaining historical banking records.
While I remain hopeful that the trustee will facilitate requests for such records in order to comply with my legal obligations, I cannot promise to obtain and share historical records as easily as before. I do think it is appropriate to understand my previous undertakings to disclose various Cellicon-controlled records as being made on a “best efforts” basis. The same is true to the deadlines: some leeway may be needed in the circumstances.
[48] This passage makes it clear that obtaining documents as a result of either Imran’s agreement to produce them or my order will be made more complicated. I will address the issue of “best efforts” below.
[49] In addition, from the contents of Imran’s Affidavit, it certainly appears that Imran may have been aware that Cellicon had been petitioned into bankruptcy prior to the hearing on March 2nd, 2021. I am not reaching a conclusion on that issue, however, as the question of whether the Khans have acted in bad faith appears to be most appropriately dealt with in costs submissions on the conclusion of this motion.
[50] As a result of Cellicon’s bankruptcy filing, the agenda for the March 8th, 2021 case conference changed. All counsel on both actions were present, and advised me that questioning in the debt action had proceeded and been completed for Shahinda only when counsel discovered the bankruptcy. At that point, on consent, the questioning was adjourned pending further directions from me on March 8th, 2021.
[51] At the conclusion of the conference on March 8th, 2021, I provided the following directions:
a) A copy of this endorsement was to be provided to Mr. Khan’s bankruptcy counsel and to the trustee in bankruptcy. Ms. Hansen undertook to do this forthwith upon receipt of the endorsement.
b) The Trustee in Bankruptcy was to advise by the end of the day on Wednesday, March 10th, 2021 whether there are any concerns with having the bankruptcy proceeding for Cellicon transferred from Toronto to Brampton.
c) The Trustee in Bankruptcy was to advise by the end of the day on Wednesday March 10th, 2021 whether there were any concerns with having the automatic stay of either the family law action or the debt collection action lifted.
d) The Trustee in Bankruptcy was to advise by the end of the day on Wednesday, March 10th, 2021 whether there were any concerns with me completing my decision on the outstanding motion heard on March 2nd, 2021 and/or whether there were any concerns with that motion being heard on March 2nd, 2021.
e) It was my expectation that the Trustee in Bankruptcy would be able to provide the substantive answer to the question I set out in paragraph (b) by the end of the day on March 10th, 2021. For the remaining questions, I accepted that it was possible that the Trustee would not be able to provide a substantive answer.
f) As a result, I scheduled a further case conference for March 11th, 2021 at 11:00 a.m. to discuss next steps in this matter. This appearance was peremptory on everyone.
g) Finally, only Ms. Shahinda Lokhandwala was examined for discovery in the debt action. Since no other party has been examined, I ordered on consent that Ms. Lokhandwala’s transcript may not be ordered or used by any other party until the rest of the discoveries are completed.
[52] These directions resulted in another case conference on March 11th, 2021 at 11:00 a.m. At that time, the Trustee in Bankruptcy appeared and advised that the Trustee was opposed to having the bankruptcy action transferred from Toronto to Brampton. Other parties to this action, some or all of whom may have claims that are provable in bankruptcy, are in favour of having the bankruptcy action transferred to Brampton.
[53] After considerable discussion, I directed that a transfer motion would take place before Trimble J. on the 19th of March, 2021. The Trustee also consented to me issuing these reasons and making production Orders that implicate Cellicon as long as the orders against Cellicon were stayed pending the issuance of a lift stay order.
Issues
[54] As I noted at paragraphs 38 and 39, each party provided me with a chart outlining allegedly incomplete undertakings, as well as the under advisements and the refusals on this motion. I have addressed some of the decisions I have to make directly on the charts that were provided.
[55] However, there are some specific issues that have arisen that require a more detailed explanation of my decision, either because they are complex or because they cover more than one undertaking. Those issues are as follows:
a) Whether Shahinda is obligated to disclose whether she knows if either she or any of the members of her family are under investigation by the FBI.
b) Whether Shahinda should provide all of the communications between herself and her brothers since the commencement of this action.
c) When should Imran be required to produce various documents and answer various questions that he has now agreed to answer.
d) Whether, and to what extent, Imran should be required to produce documents relating to his immigration status.
e) Whether, and to what extent, all of the Respondents should be required to disclose information about the hiring of lawyers (including corporate counsel), the payment of fees and communications made by those counsel.
f) Whether information about payments made by Cellicon to Imran and/or Zarinataj should be disclosed.
g) Whether documentation relating to the alleged offer to purchase Cellicon in December of 2020 should be disclosed.
h) Whether documentation from a meeting to potentially sell the business approximately a year before separation should be produced.
i) The extent of the production obligations relating to the source documents prepared by, used by or relied upon by Mr. Mak, the business valuator retained by Imran/Cellicon to value Cellicon.
j) Should information on Imran’s medical reasons for being unable to attend at discovery on January 17th, 2021 be produced.
k) What should be done about the outstanding accounts that Zarinataj was asked to produce.
l) Should Zarinataj be required to produce documentation on her education and her work history.
m) Should stub financial statements be produced for the two corporations.
n) What is the scope for permitting reattendance on answers to the questions?
[56] I will deal with each issue in turn. Before I deal with the specific issues, however, I will briefly set out some of the most relevant legal principles.
Applicable Legal Principles
[57] The court has jurisdiction to order responses to questions that a party has refused to answer. That jurisdiction comes from rule 20(19) of the Family Law Rules, which states:
20(19) If a person being questioned refuses to answer a question,
(a) the court may, on motion,
(i) decide whether the question is proper,
(ii) give directions for the person’s return to the questioning, and
(iii) make a contempt order against the person; and
(b) if the person is a party or is questioned on behalf or in place of a party, the party shall not use the information that was refused as evidence in the case, unless the court gives permission under subrule (20).
[58] Some of the basic principles have been set out in my previous reasons in this case. See Lokhandwala v. Khan 2020 ONSC 6857 at paras. 19 to 23. I adopt the same principles in this case.
[59] There are, however, a couple of additional principles that are applicable to this case. First, there is relevance. Questions should only be answered when they have some relevance to the issues in dispute. Relevance is found where the evidence in question will increase or diminish the probability of the existence of a fact in issue. See Korn v. Korn 2017 ONSC 4934 at para. 32 and the cases cited therein.
[60] Second, there is the principle of proportionality. In Kovachis v. Kovachis, 2013 ONCA 663, the Court of Appeal has described proportionality in the family law context in the following language (at para 34):
[34] In 2010, the Rules of Civil Procedure were amended to incorporate the principle of proportionality. Rule 1.04(1.1) provides:
In applying these rules, the court shall make orders…that are proportionate to the importance and complexity of the issues…in the proceeding.
Before striking Kovachis’ pleadings, consideration ought to have been given to the importance or materiality of the items of disclosure Kovachis had not produced. Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: see Chernyakhovsky v. Chernyakhovsky, 2005 CanLII 6048 (ONSC), 137 A.C.W.S. (3d) 988 (ON SC)at paras. 8, 15; Boyd v. Fields, [2007] W.D.F.L. 2449 (ON SC) at paras. 12-14. Disclosure orders must be fair to both parties and appropriate to the case.
[61] Finally, counsel for the Khans pointed out the burden of proof. Specifically, counsel directed my attention to Saunders v. Saunders 2015 ONSC 926 where Kiteley J. stated (at para 15):
[15] The burden of proof is often overlooked. Absent proof of an allegation, the court will be invited either at a motion or a trial to draw an inference that the allegation cannot be proven and ought not to be relied upon. The party with the burden has a positive obligation to produce evidence in support of positions she or he takes. That positive obligation seems to have been forgotten by adversaries in their relentless pursuit of more information and documentation.
[62] This passage from Kiteley J.’s decision, however, is anchored in a discussion of proportionality and her general concerns that disclosure is “not a weapon and not intended to overreach.” The burden of proof is simply something for the Court to consider when weighing the larger principles of proportionality and relevance.
[63] Counsel for the Khans suggested that the “burden of proof” was a basis for me to not order production and to simply direct that the matter proceed to trial without the documents that were being sought. On the facts of this case, there are three problems with this submission, as follows:
a) There are allegations being made that Cellicon engaged in considerable cash transactions and/or paid personal expenses for the family. Those allegations can only be explored with a complete documentary record.
b) The burden of proof in a case such as this is difficult to specify and will vary from issue to issue. Therefore, where there is documentation that is otherwise relevant, the issue of the “burden of proof” is of lesser importance.
c) This is an imputation of income case and where a party is self-employed, they have an obligation to provide sufficient information to satisfy the Court as to the value of the business. Blaney v. Blaney 2012 ONSC 1777.
[64] I have applied these general principles to the issues I have had to decide. There are also some specific legal issues, such as privilege, that I will address as I deal with the individual issues.
Issue #1 – Involvement With the FBI
[65] Imran argues that Shahinda should be required to disclose whether she or any of her family members are under investigation by the FBI. Imran argues that this information is relevant to the question of whether Shahinda should be permitted to move to Austin to be closer to her brothers. Counsel also points to the pleadings, which apparently reference this issue. I was unable to find the specific reference in the pleadings although I understand from Ms. Boulby that it is there.
[66] Shahinda argues that these requests are inflammatory and have no bearing on the issues before the Court. Counsel also argues that this request does not have anything to do with parenting, as Shahinda is not planning to live with her brothers even if she moves to Texas.
[67] I agree with Imran that the question of whether Shahinda knows if she is under investigation by the FBI is relevant to the question of whether Austin, Texas would be a suitable place for Shahinda to move with the children. However, I agree with Shahinda that the questions about whether her family members are under investigation are irrelevant to the issues on this motion. I have addressed the disposition of these questions in the chart.
[68] On this subject, I note that Imran may also be under a recognizance with respect to Shahinda. Just as the question of whether Shahinda is under investigation by the FBI may be relevant to the parenting issues, the question of Imran’s interactions with the legal system may also be relevant to the parenting issues. It, too, is to be produced.
Issue #2 – Communications Between Shahinda and Her Brothers
[69] There are two requests that have been made by the Khans. First, there is a request for communication between Shahinda and her brothers about the debt action. Second, there is a request for all communications between Shahinda and her brothers about all of the issues in these proceedings.
[70] Shahinda resists these requests on two grounds. First, she argues that the question was posed by former counsel for Zarinataj, Ishaq and Cellicon, who Shahinda says are not involved in the debt action. Second, Shahinda says that these requests, particularly the second one, are overbroad and should not be answered.
[71] There are two problems with Shahinda’s first argument. First, Cellicon is a party to the debt action and, therefore, the question is something that is within the rights of Cellicon to ask. Second, and more importantly, the communications between her and her brothers about the debt action are clearly relevant to an issue that is in dispute between the parties, which is whether the money to establish Cellicon came from Shahinda’s brothers or whether it came from Imran’s family.
[72] There is also no privilege that attaches to these communications. Common interest privilege would only attach if Shahinda and her brothers had a common legal interest. Given that Shahinda is being sued by her brothers in the debt action, the communications cannot be covered by common interest privilege. I did not hear any argument from counsel about any other type of privilege that might apply to these communications. As a result, the communications between Shahinda and her brothers about the debt are relevant and should be produced.
[73] The second request, however, is overbroad and should not be granted. It is essentially a request by Zarinataj, Ishak and Cellicon to go fishing in Shahinda’s private communications with her family about the breakup of her marriage. This is both disproportionate and overly intrusive. The significant intrusion is obvious from the request. It is disproportionate because, once the communications about the debt action are produced, the Khans have all of the information that they need to address the live issues in this case. There would be very little, if anything, to be gained in terms of the pursuit of the facts in this case by acceding to this production request and it would require significant efforts to comply with it. Therefore, I am denying the request.
Issue #3 – When Should Imran be Required to Produce Additional Documents?
[74] There are a number of places in the chart where Imran has now agreed to produce certain documents and answer certain questions, but where he either says will answer through counsel thirty days before trial or will make best efforts to answer.
[75] Shahinda argues that all answers should be provided by Imran within seven (7) calendar days of the release of these reasons. She advances three arguments in support of that position:
a) The trial in this matter is scheduled for May 10th, 2021, and the productions are needed forthwith to ensure that the parties are ready for trial.
b) The questioning was scheduled for mid-January and was delayed on questionable grounds.
c) The questions should have been answered at the appearance on February 1st, 2021.
[76] During the course of argument, I pointed out to counsel for the Khans that they had already conceded that these questions were relevant on February 26th, 2020. As a result, my expectation is that the Khans and counsel for Imran Khan have already begun to work on answering these questions. Therefore, any additional time that I provided would take into account that this decision is being released nearly three (3) weeks after February 26th, 2021, which is the latest date on which the work to produce documents should have begun.
[77] I am particularly concerned about Imran’s recent assertion about the bankruptcy. Imran asserts that he may be unable to completely answer questions or provide all documents because the Trustee in Bankruptcy now has control over the documents.
[78] However, as part of the appearance on March 11th, 2021, counsel for the Trustee in Bankruptcy provided a letter that addressed the documents still in the possession of Imran. The letter states “the Cellicon documentation delivered to the Trustee is all digital, much of which would still be accessible by Mr. [Imran] Khan.” This is an important point. As a result, I am staying the Orders I am making against Cellicon. However, that stay does not apply to documents that remain in Imran’s possession, control or power. Imran has a separate legal identity from Cellicon, and documents in his possession, control or power are not affected by the stay. Imran, Zarinitaj and Ishaq are obligated to produce all records in their possession, even if they are also Cellicon’s records.
[79] I am not persuaded that there should be any delay in the production of documents in this case. As a result, Imran has seven calendar days from the release of these Reasons to produce all of the documents that I have ordered to be produced. There has been plenty of time to produce the documents that Imran agreed to produce on February 26th, 2021. Most of these documents should have been produced (or at least an undertaking to produce them should have been given) by February 1st, 2021. This ruling applies to Ishaq and Zarinitaj as well.
[80] Then, there is the issue of the best efforts undertakings. I understand that the Khans may not be able to produce what has been sought from them. However, many of the requests that have been made should be easy to answer. For, example, Imran has only given a “best efforts” undertaking with respect to correspondence to and from operators about demand letters and payments for monies owing. This is information that Imran should have, and that he should have been keeping as it has been clear for quite some time that this correspondence would be a live issue in this case.
[81] Given that Cellicon has allegedly been having financial difficulties for some time, it would surprise me that Imran did not have information about what debts were owing to Cellicon, what amounts had been paid, and what correspondence had been exchanged about these amounts. The fact that he is only prepared to provide a “best efforts” undertaking about issues that are clearly within his knowledge raises substantial concerns about whether Imran is prepared to disclose all of the relevant documents in this case.
[82] As a result, I am not prepared to accept a “best efforts” undertaking in this case. All of the questions require complete answers and I am of the view that more needs to be done by Imran to produce relevant documents in this case. While each best efforts undertaking has to be considered individually, my general expectation is that all of the documents will be produced. If Imran is unable to produce any of the requested documents, then he must produce:
a) An Affidavit outlining the efforts he made to obtain the document.
b) Copies of all correspondence that either he or his counsel initiated in order to obtain the documents as well as all responses.
[83] For “best efforts” undertakings, the requested information and/or the Affidavit and correspondence must be produced within seven (7) calendar days of today’s date.
[84] The minimal time I have provided may seem draconian. However, there is a trial date that has been set in this matter of May, 2021. This date has been known to the parties for some considerable time, and the work on discovery needs to be completed promptly.
[85] In addition, this is not the first time that there have been issues with respect to disclosure in this case. Specifically, I note that there were considerable disclosure deadlines around the time that Imran attempted to sell the business and that all parties have been waiting a considerable time for the BMO report. In short, the delays in this case are long-standing
[86] Finally, as I have noted, the questioning of Imran was originally scheduled for January 17th, 2021. It was delayed to February 1st, 2021 as a result of Imran’s alleged inability to attend because of medical issues. On February 1st, a whole series of questions were refused that should have been properly answered. For Imran to now say that additional time to answer undertakings should be provided is not reasonable, especially with a trial date looming. To put it another way, the seven additional days I have provided is really a month and a half on one view of the case.
[87] This deadline also applies to the questions refused and taken under advisement by Zarinataj and Ishaq for substantially the same reasons.
Issue #4 – Imran’s Immigration Status
[88] A series of questions were asked about Imran’s immigration file and related documents. Part of the narrative being advanced by Shahinda in this case is that Cellicon was incorporated by Zarinataj because of the fact that Imran had left the United States under threat of deportation and that his immigration status in Canada did not permit him to open any business.
[89] I accept that at least some of the information on Imran’s immigration status is relevant to the issues in this case, as it will provide information on whose narrative is correct. Relevance is determined by whether a fact will tend to prove or disprove an issue in the litigation. Imran’s immigration status, both in the United States as he was leaving and in Canada when he arrived, will assist the trier of fact in understanding whether the development of the business was Zarinataj’s idea or whether Zarinataj’s involvement in the business as an owner was necessary because Imran had immigration issues. This conclusion extends to Zarinataj’s knowledge of Imran’s immigration status.
[90] As a result, subject only to my comments about privilege below, Imran’s immigration documents are relevant and producible.
Issue #5 – Privilege
a) Solicitor-Client Privilege
[91] Solicitor-client privilege is one of the most central privileges known to our law. It should be jealously protected, and courts should be reluctant to permit any breaching of this privilege.
[92] There are three general types of information being sought by Shahinda in this case, as follows:
a) The names and identities of lawyers retained by Imran, Cellicon and/or other entities.
b) The amount of fees paid to lawyers.
c) The advice given by the lawyers.
[93] The third category, the advice given by the lawyers, is clearly covered by solicitor-client privilege. The other two areas are more complex and require some reference to case-law and principles.
[94] A starting point for my analysis is the decision of Re: Ontario Securities Commission and Greymac Credit Corp; Re: Ontario Securities Commission and Prousky (1983) 41 O.R. (2d) 328 1983 CanLII 1894. In that case, at paragraph 24, the Divisional Court held that:
It may be helpful to ask in such a case whether the client himself if he were the witness, could refuse on the ground of the solicitor-and-client privilege to disclose particulars of a transaction directed by him through his solicitor's trust account. The fact that a client has paid to, received from, or left with his solicitor a sum of money involved in a transaction is not a matter as to which the client himself could claim the privilege, because it is not a communication at all. It is an act. The solicitor-and-client privilege does not enable a client to retain anonymity in transactions in which the identity of the participants has become relevant in properly constituted proceedings.
[95] See also Haroon v. Sheikh 2020 ONSC 1284 (at paras 41 and following) and the cases cited therein.
[96] However, the Supreme Court of Canada has noted that it is difficult to demarcate the line between an act and a communication. Specifically in Maranda v. Richer 2003 SCC 67, the Court stated (at para 32):
- While this distinction in respect of lawyers’ fees may be attractive as a matter of pure logic, it is not an accurate reflection of the nature of the relationship in question. As this Court observed in Mierzwinski, there may be widely varying aspects to a professional relationship between solicitor and client. Issues relating to the calculation and payment of fees constitute an important element of that relationship for both parties. The fact that such issues are present frequently necessitates a discussion of the nature of the services and the manner in which they will be performed. The legislation and codes of professional ethics that govern the members of law societies in Canada include often complex mechanisms for defining the obligations and rights of the parties in this respect. The applicable legislation and regulations include strict rules regarding accounting and record-keeping, an obligation to submit detailed accounts to the client, and mechanisms for resolving disputes that arise in that respect (Act respecting the Barreau du Québec, R.S.Q., c. B-1, s. 75; By‑law respecting accounting and trust accounts of advocates, R.R.Q. 1981, c. B-1, r. 3; Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1, ss. 3.03.03 and 3.08.05; Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, (1994) 126 O.G. II, 4691). The existence of the fact consisting of the bill of account and its payment arises out of the solicitor-client relationship and of what transpires within it. That fact is connected to that relationship, and must be regarded, as a general rule, as one of its elements.
[97] Maranda represented an evolution in the law. It was a move away from a categorical claim of privilege over all of the administrative aspects of a lawyer’s file and a move towards a presumption of privilege that can be rebutted. This evolution took place, in part, by taking into account the principles set out in Greymac and has continued in more recent cases.
[98] In Kaiser (Re:) 2012 ONCA 838, the Court of Appeal stated:
[30] From these developments in the jurisprudence, I take the law to be that administrative information relating to the solicitor-client relationship -- including the identity of the person paying the lawyer's bills -- is presumptively privileged. The presumption may be rebutted by evidence showing (a) that there is no reasonable possibility that disclosure of the requested information will [page317] lead, directly or indirectly, to the revelation of confidential solicitor-client communications (Maranda, at para. 34; and Ontario (Assistant Information and Privacy Commissioner), at para. 9); or (b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client (Cunningham, at paras. 30-31).
[99] The passages from these reasons show that there is an obvious tension between privilege and disclosure. This tension exists because solicitor-client privilege is one of the most jealously guarded safeguards in our legal system. I am mindful of the central role that solicitor-client privilege plays in our legal system. However, there are cases where it does not apply or, as noted in Kaiser, where the privilege can be rebutted.
[100] For example, requiring the fact that Cellicon is (or was) paying the bills for the legal work being done for Zarinataj and Ishaq will not result in any legal advice being disclosed. Similarly, identifying the amounts that were paid on behalf of Zarinataj and Ishaq by either Cellicon or the other company will also not result in any legal advice being disclosed.
[101] On the other hand, the amount of money being paid by Cellicon for legal fees for Zarinataj and Ishaq is arguably money that should be added back into Cellicon’s income for the purposes of calculating both the income and value of Cellicon. While I make no final conclusions in that regard, I can certainly see the relevance of the information. It is disclosable.
[102] On the other hand, the identity of counsel retained to assist the corporation from inception to the date of separation seems to be a request that is both less relevant to the issues in dispute and more intrusive. The issue of who instructed corporate counsel will not be determinative of who the directing mind of the corporation was. Similarly, why counsel changed will be of even less assistance in determining the issues in dispute. On the other hand, disclosure of that information might result in the disclosure of legal advice, especially as it relates to why counsel changed. Similarly, the request for the names of Imran’s United States immigration lawyers raises the same risks. As a result, this information should not be disclosed.
b) Litigation Privilege
[103] This brings me to the question of litigation privilege. A detailed discussion of litigation privilege is set out in Kennedy v. McKenzie 2005 CanLII 18295 (ONSC) where Ducharme J. sets out the test (at para 21) that litigation privilege can be found where it can be shown that the communication arose:
a) For the dominant purpose of existing, contemplated or anticipated litigation; and
b) In answer to inquiries made by an agent for the party’s solicitor; or
c) At the request or suggestion of the party’s solicitor; or
d) For the purpose of being liad before counsel for the purposes of obtaining his advice; or
e) To enable counsel to prosecute or defend an action or prepare a brief.
[104] In this case, the communications that Imran seeks to shelter under the rubric of litigation privilege are communications between his former counsel, Mr. Edney, and third party leaseholders.
[105] These communications arose as a result of my November 13th, 2020 decision. At that time, I set out a process (at paragraph 57) for confidentiality to be maintained over the leases, while still assuring Shahinda access to relevant documents. The correspondence from Mr. Edney’s office to the landlords is in furtherance of inquiries made by the opposing solicitor and is correspondence that was sent at the direction of the Court. As a result, I do not see how litigation privilege can protect this correspondence.
[106] In any event, it has been overtaken by my finding that an Order requiring Imran to disclose the efforts he has made to obtain relevant documents is necessary. Those letters are part of the efforts that Imran has made to comply with my orders.
[107] Finally, there are the reasons why this correspondence is being sought. Counsel for Shahinda argues that this information is required to ensure that all of the leases have been produced. Counsel for Imran argues that this is not necessary as Shahinda could create a list of all operator locations and then cross-check it against the leases.
[108] Given the rapidly approaching trial date, Imran’s submission should not be given any effect. The correspondence should be produced in order to ensure that all of the leases have been provided and this should be done in as efficient a manner as possible.
Issue #6 – Payments to Zarinataj and Ishaq by Cellicon
[109] Shahinda has sought information about various payments made by Cellicon to both Zarinataj and Ishaq. In terms of the payments to Zarinataj, counsel states that they are overbroad and impossible to fulfill with certainty.
[110] I reject both of these assertions. The question of what payments were made to a shareholder is something that should clearly be available in both the corporate records and Zarinataj’s records. This is particularly true for payment made to a shareholder who is alleged to be a trustee. The claim that Zarinataj is holding her shares in trust is more than two years old. The payments made to her are clearly an issue, and have been in issue since the claim was initiated.
[111] A similar analysis applies to the monies paid to Ishaq. If he has received payments from Cellicon, this is an issue that goes to Cellicon’s income and these payments should be disclosed.
[112] This brings me to the “impossible to fulfill with certainty” assertion. In essence, the position being advanced by the Khans is that they can’t figure out what monies were paid by a corporation to one of its shareholders. Payments to shareholders are something that every corporation tracks as there are tax implications to those payments for both parties.
[113] This information is to be provided.
Issue #7 – Documentation on the Alleged Offer to Purchase Cellicon
[114] In the last couple of days of November, 2020, Imran got an offer to purchase Cellicon. It allegedly closed less than a week after Imran disclosed the offer to Shahinda. The offer came at a point when significant disclosure from Cellicon was due in this action, and Shahinda expressed significant concerns with the bona fides of this offer.
[115] As a result, an emergency motion proceeded before me in which I considered whether a preservation order should be granted against the assets of Cellicon, including Imran’s shares. After a hearing, I granted that Order. Part of the basis on which I granted that Order was that Shahinda provided an undertaking with respect to damages.
[116] Imran now says that the documents relating to this purchase and sale are an “overbroad request for communications that are now a dead letter due to Shahinda’s actions” and are also now not relevant to Shahinda’s trust claims.
[117] I disagree. The undertaking remains in force. The documentation that Shahinda seeks is relevant to the question of the undertaking and must be produced. However, I anticipate that Imran might abandon any right to enforce the undertaking. The documents are still relevant to the question of what Cellicon’s value is, and was at various times during the course of this action. As a result, these records are all to be produced.
[118] Privilege was not raised by counsel. However, for clarity, the scope of my order should be limited to communications with the other party to the transaction. The communications between Imran and his counsel (or Cellicon’s counsel) are covered by solicitor-client privilege and should not be disclosed.
Issue #8 – The Documentation From the Meeting in 2017
[119] As I understand it, Imran attended a meeting with a Ms. Wozniczko at NAI Commercial in Vancouver. This meeting took place in late 2017, at a point where Imran was considering selling Cellicon. Shahinda has asked for production of all of Ms. Wozniczko’s notes and other records in her file. Imran opposes this request.
[120] Counsel for Shahinda argues that this documentation is relevant because the meetings took place less than a year after separation. As a result, this documentation might tend to prove the value of Cellicon as of the date of separation.
[121] Counsel for Imran originally suggested in the chart that this documentation was irrelevant as it would not disclose the valuation of Cellicon at the time of separation. In argument, counsel seemed to suggest that the more important issue was that the request was overbroad.
[122] I do not agree with either of Imran’s submissions. Determining the precise valuation of Cellicon at the date of separation is a difficult exercise that will require significant consideration of the surrounding facts. Documentation of what Cellicon was worth shortly before separation will assist in that exercise. Further, the entire contents of the file will assist in understanding the valuation number (if any) that Ms. Wozniczko placed on Cellicon.
[123] These records are to be produced to the extent that they are available. Less than complete production must be covered by the Affidavit on best efforts as described herein.
Issue #9 – Documents Provided to the Valuator
[124] In January of this year, Imran delivered a valuation report from a Mr. Alan Mak of BDO. That report was attached as one of the exhibits to the Affidavits that were filed on this motion, and I have reviewed the report. It sets out a detailed analysis of Cellicon’s income as well as valuing the business as of the date of separation.
[125] There were a series of requests that were made at questioning for documentation and for the answers to follow-up questions from Mr. Mak. Some of these are going to be answered by Imran. Others have been refused. The grounds for refusal include:
a) The requests are overbroad.
b) Imran would not know the answers to these questions, which would have to be obtained from Mr. Mak. This is also expressed as Imran would not be qualified to give the answers.
c) The requests are premature given the undertaking to provide the scope of review documentation.
[126] I reject all of these arguments. I start with the claim that the documents are overbroad. The scope of review documents are all being provided on consent. As a result, requests to review those documents and identify certain things within them are not overbroad. Those questions are proper as they go to the conclusions that the valuator has reached.
[127] This brings me to the next ground advanced by counsel for refusing to produce information. In essence, the Khans argue that they should not be required to produce the information because they would have to ask the expert the questions. It is well within the scope of discovery to know what information the expert had in reaching his conclusions. The fact that a party does not, themselves, know an answer to the question does not absolve that party of the responsibility of making reasonable inquires. Further, a failure to make reasonable inquires might result in a third party examination. Fischer v. I.G. Investment Ltd 2016 ONSC 4405.
[128] This brings me to the claim that the requests are premature because of the undertaking to provide the scope of review documentation is not a sustainable position. A trial is currently scheduled in this matter in less than two months. Acceding to this request would be requiring Shahinda’s counsel to address these issues in two steps. In essence, my ruling deals with the question of whether the information is ultimately producible if it is not included in the scope of review documentation.
[129] Finally, I should note that there is the issue of legal fees that are being paid through the company. At paragraphs 101 and 102 above, I have set out the rationale for why the amounts of fees should be produced. The information sought appears to be limited to the fee amounts rather than anything else, and my decision should only be taken as requiring the disclosure of that limited information.
Issue #10 – Imran’s Medical Condition
[130] As I have noted earlier, Imran failed to attend at his questioning on January 17th, 2021. In order to explain his absence, Imran produced redacted medical documents. He refuses to produce any further documents.
[131] On this issue, I accept Imran’s counsel’s argument that Saunders, supra, should be applied. To that end, I am not compelling Imran to produce this documentation for two reasons. First, it is only relevant to the question of whether Imran deliberately delayed the questioning in this case. It does not appear to be relevant to the larger issues in this case.
[132] Second, on the costs submissions for this motions it will be up to Imran to decide what to produce. It is clear that Shahinda will argue that Imran (and the rest of the Khan family) have been behaving in a bad faith manner with respect to both the questioning and this motion. In the absence of unredacted information, it may be more difficult for Imran to argue that he has been acting in a good faith manner but that is a determination that will be left to the costs submissions, and the choice of what to produce is Imran’s
[133] As a result, I am not ordering the production of this documentation.
Issue #11 – Zarinataj’s Outstanding Accounts
[134] This issue concerns questions 374 and 375 from Zarinataj’s questioning. At questioning on January 13th and 14th, 2021, Zarinataj provided an undertaking to review a list of bank accounts to be provided by Shahinda’s counsel and advise whether Zarinataj was prepared to produce those records. On February 4th, 2021, Shahinda’s counsel sent a letter to Zarinataj asking for production of various bank records.
[135] Zarinataj advised that she did not receive this letter. It was attached to the Affidavit filed by Shahinda on this motion, which was served on Zarinataj’s agent on February 16th, 2021. At the hearing of the motion, Zarinataj’s agent advised that they had not seen the letter and were not in a position to respond on the day of the hearing.
[136] As a result, I provided Zarinataj’s agent with an opportunity to provide their position on the requests set out in Shahinda’s counsel’s letter, as long as it was provided by the end of the week that I heard the motion. I duly received this position, which illustrates that there are actually twelve separate requests to be addressed. These requests, and my disposition of them, are set out in a separate chart. In some cases, Zarinataj has agreed to produce some (or all) of the requested statements. In other cases, she has agreed to use her “best efforts” to produce some of the documents.
[137] In terms of the best efforts, I reach the same conclusion about my expectations that I did for Imran’s “best efforts” answers set out at paragraphs 82 and 83 above. If the documents are not produced, then an Affidavit outlining the efforts is required. I do acknowledge counsel’s observation that some of these statements are old and may not exist.
[138] This brings me to the observation made by Zarinataj’s agent that some of these documents are in the possession of Cellicon’s Trustee in Bankruptcy. The production order against Cellicon is stayed. However, that does not relieve Zarinataj from both checking her records for these documents and making reasonable inquiries to find them. For clarity, reasonable inquires includes asking Imran if he has copies of the documents that have been requested, or if he has access to them. The Affidavit must set out these efforts as well.
[139] Some of the other items were refused. The explanations for the refusals are as follows:
a) The amount of documentation is enormous and the requests are not proportional.
b) Some of the documents are for old accounts and are “out of date”.
c) Some of the accounts are held jointly with a third party, Ms. Almas Bandeali, who I understand is Zarinataj’s daughter and the sister of Imran.
d) The bank statements that were reviewed by BMO are only relevant up to the date of the BMO review, and that subsequent account statements are not relevant.
[140] Counsel for Shahinda was given an opportunity to respond to these refusals in a letter that I received at the end of the day on March 5th, 2021. I have considered all of the arguments provided by both sides. Put generally, I am rejecting the arguments advanced by Zarinataj and accepting the reply arguments put forth by Shahinda. The documents requested are all producible. I will now set out my reasons for that conclusion.
[141] I start with Zarinataj’s argument on the amount of documentation that is sought. The fact that there are approximately 650 bank statements may sound like a large number. However, the requests do not violate the proportionality principle for three reasons:
a) There have been thousands of bank statements that have been produced already in this action. The number of additional statements requested is smaller.
b) Of the 650 bank statements that have been sought, Zarinataj has agreed to produce significantly more than half of them if they can be found. This significantly reduces the remaining burden on Zarinataj, and significantly weakens the proportionality argument.
c) Some of the documents that have been refused were listed in the scope of review documents outlined by Mr. Mak in his report. It is difficult to see how it would be disproportionate to produce something that has already been reviewed by Mr. Mak.
[142] The second argument advanced by Zarinataj is that some of these bank statements are too old to be produced. I reject this argument. One of the key issues in this case is where the money to establish Cellicon came from. Considering that question requires an exploration of the bank accounts of both Zarinataj, who allegedly provided the money, and Cellicon as the entity that actually received the money. Shahinda is entitled to explore that issue.
[143] I acknowledge the fact that some of these documents may no longer be in the possession of the relevant financial institutions as they are more than seven years old. That does not relieve Zarinataj of either the obligation to conduct a search of her own records for these documents or the obligation to ask the financial institutions for the records.
[144] Zarinataj’s third argument was that some of the accounts were held jointly with a third party who is not part of this litigation. As a result, that third party had a reasonable expectation of privacy. I reject that argument. The accounts are held jointly with Zarinataj, who is a party to this litigation. The records are the property of Zarinataj, and she has no expectation of privacy in this litigation.
[145] Finally, there is the argument that the documents provided to BMO are only relevant up to the date of the BMO review. I disagree. The issue of support is a live issue in this case, and the post-review documents are relevant to that issue. They may also be relevant to the value of the business.
[146] The bank statements requested are to be produced. This order applies to Cellicon, but is stayed as against Cellicon because of the bankruptcy.
Issue #12 – Zarinataj’s Education and Work Experience
[147] Zarinataj was asked a series of questions about her education and work history and refused these questions on the basis that they were “neither a necessary nor sufficient condition for drawing any conclusions about her skills or capability to start and develop a company.” I reject this argument.
[148] Zarinataj is alleging that she was involved in the development of Cellicon. Whether she had the skills and capabilities to start the company is something that is a live issue of this case. Further, Zarinataj’s knowledge of business is something that she may (or may not) have obtained in university. It is also knowledge that she may (or may not) have developed through her work history.
[149] In short, the evidence being sought might tend to prove (or disprove) Zarinataj’s assertions about her role in the company. A couple of hypotheticals will illustrate why I have reached this conclusion. If Zarinataj’s major for her B.A. was economics, and she then worked in marketing at a retail business for ten years, this might be evidence that would support the claim that Zarinataj had some of the skills necessary to help start Cellicon. If, on the other hand Zarinataj had a B.A. in Psychology and then worked in a doctor’s office for twenty-five years, this might be evidence that supports the claim that Zarinataj did not have some of the skills necessary to help start Cellicon.
[150] These questions are to be answered.
Issue #13 – Stub Financial Statements
[151] The parties separated in September of 2008. Counsel for Shahinda is seeking the production of stub financial statements for the businesses for the first eight or nine months of 2018. The reason for these requests is to show the income both immediately before and after separation.
[152] Counsel for Imran resists this request on the basis that the income earned in the first eight months is going to be approximately similar to the income earned in the last four months because of the fact that much of Cellicon’s income comes from monthly rent. In addition, there is an issue of proportionality in that these statements will be difficult to create.
[153] I accept counsel for Imran’s arguments about proportionality on this issue. In addition, I note that where income varies from year to year, the Courts generally tend to look at a pattern of income over a number of years. Federal Child Support Guidelines, SOR/97-175 as. Am. Section 17. Month to month variations in the income do not seem to be a material issue.
[154] For these reasons, the requests for stub financial statements are denied.
Issue #14 – Scope of Reattendance
[155] The parties are generally agreed on the scope of reattendances on examinations. Counsel agree that these are to be kept to a minimum and that generally, answers can be provided in writing. In the event that a reattendance is required, it is to be limited to one (1) hour per witness.
[156] If there are any disputes about reattendances, the parties may contact my judicial assistant to schedule an appointment to deal with those issues. However, I strongly encourage the parties to work these issues out between them.
Conclusion
[157] For the foregoing reasons, I am directing as follows:
a) Shahinda is to produce the information and documents set out in Schedule “A” to this decision.
b) Imran and Cellicon are to produce the information and documents set out in Schedule “B” to this decision.
c) Zarinataj is to produce the information and documents set out in Schedules “C” and “D” to this decision.
d) Ishaq is to produce the information and documents set out in Schedule “E” to this decision.
e) Unless otherwise specified, the deadline for all productions is seven (7) calendar days from the release of these reasons.
f) Any undertaking where “best efforts” was given requires either complete compliance with the undertaking or an Affidavit including the information set out in paragraph 81 above.
g) Orders that apply as against Cellicon are stayed as against Cellicon only. The stay of these orders as against Cellicon does not affect the obligations of the other Respondents to search their records and produce relevant documents.
[158] This brings me to the subject of costs. The parties are encouraged to agree on the costs of this motion. Failing agreement, each party is to serve and file their costs submissions within fourteen (14) calendar days of the release of these reasons. Those submissions are to be no longer than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law. They are to be filed with the Court office, and a copy provided to my assistant electronically. BOTH methods of filing are required.
[159] Any reply submissions are limited to two (2) single-spaced pages, exclusive of case law. Those submissions are to be served and filed seven (7) calendar days after the receipt of the costs submissions described in the previous paragraph. The filing requirements are also the same as described in the previous paragraph.
[160] There are to be no extensions to the deadlines for providing costs submissions, even on consent, without my leave. If costs submissions are not received within the deadlines I have set out above, then there will be no costs.
LEMAY J
Released: March 17, 2021
COURT FILE NO.: FS-19-94161
DATE: 2021 03 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shahinda Lokhandwala
Applicant
- and -
Imran Khan, 9633880 Canada Inc., Zarinataj Khan and Ishaq Khan
Respondents
REASONS FOR DECISION
LEMAY J
Released: March 17, 2021
COURT FILE NO.: CV-20-3977
DATE: 2021 03 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Zameer Lokhandwalla, also known as Zameer Lokhandwala, and Sherazad Lokhandwala
Plaintiffs
- and -
Shahinda Lokhandwala, Imran Ishak Khan and 0932293 B.C. Ltd. operating as Cellicon
Defendants
REASONS FOR DECISION
LEMAY J
Released: March 17th, 2021