1151390 Ontario Inc. and Halloway Developments Ltd. v. Metrolinx

COURT FILE NO.: CV-19-618682

MOTION HEARD: 20201116

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1151390 Ontario Inc. and Halloway Developments Ltd., Plaintiffs

AND:

Metrolinx, Defendant

BEFORE: Master Jolley

COUNSEL: Sarah Spitz and Conner Harris, Counsel for the Plaintiffs

Andrew Baker, Counsel for the Defendant

HEARD: 16 November 2020

REASONS FOR DECISION

A. OVERVIEW AND GENERAL PRINCIPLES

[1] The plaintiffs have sued the defendant, alleging that it negligently misrepresented its intention to acquire the plaintiffs’ property for a future GO Train station. Once pleadings closed, the defendant brought a motion for summary judgment to have the action dismissed.

[2] Both parties bring motions for answers to questions refused by the other during their cross examinations on affidavits filed in respect of the defendant’s pending summary judgment motion.

[3] Both parties rely on the principles set out in Ontario v. Rothmans Inc. 2011 ONSC 2504, reproduced below, as setting the scope of questions to be answered on cross-examination:

[143] The case law has developed the following principles about the scope of the cross-examination of a deponent for an application or motion:

• The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery: BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 6.

• A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure: BOT Construction (Ontario) Ltd. v. Dumoulin, supra at para. 7; Westminer Canada Holdings Ltd. v. Coughlan, [1989] O.J. No. 252 (Master), aff’d [1989] O.J. No. 3038 (H.C.J.).

• The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion: Thomson v. Thomson, [1948] O.W.N. 137 (H.C.J.); Toronto Board of Education Staff Credit Union Ltd. v. Skinner, [1984] O.J. No. 478 (H.C.J.) at para. 12; Westminer Canada Holdings Ltd. v. Coughlan, [1989] O.J. No. 3038 (H.C.J.).

• The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence: Superior Discount Limited v. N. Perlmutter & Company; Superior Finance Company v. N. Perlmutter & Company, [1951] O.W.N. 897 (Master) at p. 898; Re Lubotta and Lubotta [1959] 0.W.N. 322 (Master); Wojick v. Wojick, 1971 CanLII 538 (ON SC), [1971] 2 O.R. 687 (H.C.J.); Toronto Board of Education Staff Credit Union Ltd. v. Skinner, [1984] O.J. No. 478 (H.C.J.) at para. 11; BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676 (Master) at paras. 6, 10-11; Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 14-15; BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 4; Shannon v. BGC Partners LP, 2011 ONSC 1415 (Master) at para. 8.

• If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the court: Wojick v. Wojick and Donger, 1971 CanLII 538 (ON SC), [1971] 2 O.R. 687 (H.C.J.), at p. 688; Ferring Inc. v. Richmond Pharmaceuticals Inc. [1996] O.J. No. 621 (Div. Ct.) at paras. 14 and 15; Logan v. Canada (Minister of Health), [2001] O.J. No. 6289 (Master); Guestlogix Inc. v. Hayter, 2010 ONSC 5570 at para. 16.

• The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion: Blum v. Sweet Ripe Drink Inc. (1991), 47 C.P.C. (2d) 263 (Ont. Master); Moyle v. Palmerston Police Services Board (1995), 1995 CanLII 10659 (ON SC), 25 O.R. (3d) 127 (Div. Ct.).

• A question asked on a cross-examination for an application or motion must be a fair question: Superior Discount Ltd. v. N. Perlmutter & Co., [1951] O.W.N. 897 (Master) at p. 898; Canadian Bank of Commerce (CIBC) v. Molony, [1983] O.J. No. 221 (H.C.J.) at para. 3; Seaway Trust Co. v. Markle, [1988] O.J. No. 164 (Master); BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676 (Master) at para. 6. (See discussion below.)

• The test for relevancy is whether the question has a semblance of relevancy: Re Lubotta and Lubotta [1959] O.W.N. 322 (Master); Rodriques v. Madill, [1985] O.J. No. 1666 (Master).

• The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent: Moyle v. Palmerston Police Services Board (1995), 1995 CanLII 10659 (ON SC), 25 O.R. (3d) 127 (Div. Ct.).

• The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information: Bank of Montreal v. Carrick (1974), 1973 CanLII 381 (ON SC), 1 O.R. (2d) 574 (Master), aff’d ibid p. 574n (H.C.J.); Mutual Life Assurance Co. of Canada v. Buffer Investments Inc. (1985), 1985 CanLII 1940 (ON SC), 52 O.R. (2d) 335 (H.C.J.) at paras. 9-13; Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 42, 56; BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 8; Hinke v. Thermal Energy International Inc., 2011 ONSC 1018 (Master) at paras. 36-37.

• The deponent for a motion or application who deposes on information and belief may be compelled to inform himself or herself about the matters deposed: Rabbiah v. Deak, [1961] O.W.N. 280 (Master); Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 42, 46.

[4] I accept that the scope of relevance and proportionality may be greater on a motion for summary judgment which has the potential to finally determine a plaintiff’s claim.

B. THE PLAINTIFFS’ MOTION

[5] The plaintiffs cross-examined Sherrie Barns (“Barns”), a representative of the defendant on two affidavits she swore in support of the defendant’s motion. They argue that they require answers to the questions refused by the defendant to put their best foot forward in response to the defendant’s summary judgment motion.

Undertaking

[6] There is one undertaking admittedly outstanding at Q249 of the April 2020 cross-examination. The defendant shall produce the communications referenced in the report within 30 days of the date of this decision.

Refusals

Grouping 1 – Defendant’s communications with municipalities relating to planning and design requirements associated with the Thornton Road Property and the location of the Thornton Corners GO Station

[7] Under advisement Q168 (9 January 2020) and under advisement Q249 (20 April 2020) fall into this grouping. The plaintiffs argue that Metrolinx’ communications with the municipalities are relevant as they may touch on whether Metrolinx told the municipalities that it would require the plaintiffs’ property. They say that the representations Metrolinx made to the municipalities responsible for approving or rejecting the plaintiffs’ development application are relevant to the allegation that the defendant misrepresented its intentions in the course of the plaintiffs’ development and planning appeal process.

[8] I find these two questions overly broad. They are not limited in time, department or topic. They go beyond discussions between the defendant and the municipalities about potential or proposed acquisition to cover all of land use planning. Metrolinx has provided a memorandum of a multi-party 2017 stakeholder meeting to demonstrate that the discussions at that level are focused on planning integration issues and not particular land requirements. On the acquisition issue, I note that Metrolinx has produced the communications of its property negotiators which go to the acquisition issue in a more focused way. The questions need not be answered.

Grouping 2 – Metrolinx’ practices in drafting and negotiating section 30 agreements

[9] This grouping includes under advisement Q317, Q325 and Q433 and refusals Q377-381 and Q429-433 (9 January 2020)

[10] A section 30 agreement is an agreement between an authority and an expropriated owner that contemplates the property being consensually transferred to the expropriating authority while the parties reserve the right to have compensation determined by the OMB, at the time, as though the property had been expropriated. The plaintiffs allege that they negotiated with Metrolinx on the basis that Metrolinx would acquire their lands through a section 30 agreement. They allege that, based on that understanding, they settled their appeal of the draft plan of subdivision they had proposed to the City of Oshawa for the lands as well as their appeal of a City of Oshawa official plan amendment.

[11] The parties did not come to terms on a section 30 agreement. Metrolinx takes the position that the negotiations failed because the plaintiffs refused to enter into a Permission to Enter (“PTE”) that would have allowed Metrolinx to undertake certain due diligence on the property prior to entering into the section 30 agreement. The plaintiffs argue that the defendant’s due diligence concerns could have been incorporated into the section 30 agreement and that a separate or preliminary PTE was not necessary. The plaintiffs wish to refute the defendant’s position that the defendant was acting in good faith when refused to incorporate the due diligence terms into the section 30 agreement and insisted on a PTE.

[12] On this basis and considering that this is a summary judgment motion, I find that Q317 is to be answered and Metrolinx is to advise whether it has included due diligence provisions in its section 30 agreements in the past. While I accept that there is no legal obligation to include a due diligence clause in a section 30 agreement, even where one has been included in other agreements, the motions judge may find the fact that Metrolinx never included due diligence provisions in its section 30 agreements or always included due diligence provisions in those agreements relevant to the claim of good faith.

[13] I do not find that Q325 and Q433 have the same probative value. First, Metrolinx has said it does not have a standard form section 30 agreement. While Metrolinx does have past precedents, the focus of the question is on the due diligence provisions, which will be adequately answered by Q317. The plaintiffs have requested at Q433 and Q429-433 production of the entire section 30 agreement for 99 Sudbury Street. The agreement could only be potentially relevant if it included due diligence provisions and that issue will be addressed through the answer to Q317. The questions need not be answered.

[14] Q377-381 (to advise whether the plaintiffs would have been prepared to have Metrolinx put any number it wanted into the section 30 agreement) is speculative as it was Metrolinx’ position that it could not negotiate any terms of the section 30 agreement absent the PTE, which would help it understand its exposure. It need not be answered.

Grouping 3 – Issues related to 500 Howard Street, Oshawa

[15] In paragraph 20 of her affidavit sworn 21 October 2019 Barns deposed:

“Metrolinx acquired one property by expropriation in April 2014 situated at 500 Howard Street, Oshawa (“500 Howard”) which has been planned as the future station site servicing downtown Oshawa. The decision to expropriate 500 Howard was a policy decision made by the Minister of Transportation based on the direction of the provincial government at that time. At no time has the Minister of Transportation approved an expropriation for any other properties identified for potential acquisition in the 2011 EA Report.”

[16] Under advisement Q346 has been partially dealt with by the parties. Metrolinx advises that it will produce any publicly available documents approving the 500 Howard expropriation and will produce the submission package from Metrolinx to MTO, the approval authority.

[17] The plaintiffs also seek at under advisement Q341-346 all records from the office of the CEO, which directed the expropriation, to Metrolinx staff, as well as all records between MTO and the CEO’s office related to the expropriation of 500 Howard.

[18] Metrolinx maintains that 500 Howard has no probative value to the issues raised by the plaintiffs in this action. The plaintiffs argue that their questions concerning 500 Howard must be answered whether or not they go to their claim as 500 Howard was an issue raised specifically by Ms. Barns in her affidavit. Having raised the issue, the plaintiffs are entitled to question her on it.

[19] I agree that the plaintiffs are entitled to question Metrolinx about 500 Howard and they have done so. However, the right to question Barns about 500 Howard does not make every question relevant or make relevant all correspondence between the CEO’s office and MTO. The plaintiffs argue that they are entitled to inquire into the policy decision behind the expropriation of 500 Howard to determine how and why it was treated differently from their property. To the extent that line of inquiry is relevant, the defendant has given evidence on why 500 Howard was different from the plaintiffs’ property in its answer to undertaking 10. This further question need not be answered.

Grouping 4 - Waiver of Privilege

[20] This grouping includes refusals Q617-618 (produce all communication between Metrolinx and its legal counsel relating the negotiations of the section 30 agreement), Q737 (produce all communications between Metrolinx and its legal counsel relating to the negotiation of the section 30 agreement and the PTE) and Q705-710 (produce a summary of the meeting between Barns and Mr. Waqué, Metrolinx’ lawyer (“Waqué”)).

[21] The plaintiffs argue that Metrolinx waived privilege over the communications with its lawyers relating to the negotiation of the section 30 agreement. It did so first by including in Barns’ affidavit an email from Metrolinx’ counsel on the topic. The email is from Andrew Baker, Metrolinx’ counsel, to his client reporting on his discussions with plaintiffs’ counsel. In her affidavit, Barns deposed that Metrolinx wondered about the motivation of the plaintiffs in constantly demanding that the defendant purchase their lands. She speculated that it may be because an expropriator often pays in excess of market to avoid paying the landowner’s legal costs as it is obliged to do in an expropriation. She further surmised that the plaintiffs were attempting to build up a record to advance a claim for delay damages if the land were ever expropriated or acquired under a section 30 agreement. But the speculation did not end with Barns. She then attached Mr. Baker’s email to her and others at Metrolinx in which he suggested that the plaintiffs were trying:

“to create a record to advance as many delay damages claims as possible…. From the language of this email [from plaintiffs’ counsel], it is likely that [the plaintiffs] will also advance a claim for retroactive interest on the grounds that Metrolinx has prohibited the owners from making productive use of the land since the date of the station designation.”

[22] They also point to additional legal advice that Barns included in her affidavit in support of their position that the defendant has waived its privilege over the advice it received concerning any due diligence required as part of or prior to a section 30 agreement. In her affidavit Barns deposed that Metrolinx’ lawyer:

“advised us that a number of items have to be clarified before a draft agreement could even be prepared including an updated title search, finalization of a proper survey of the Requirement (not just the sketch above), and careful delineation of the natural heritage features of the Subject property (which may have required due diligence with the Conservation Authority).”

[23] The plaintiffs argue that Metrolinx has selectively disclosed the legal advice and opinion of its counsel in support of its position on the motives of the plaintiffs, namely that the plaintiffs were not negotiating in good faith and were holding up negotiations to claim delay damages. Further, it is using this email and the reference to the additional legal advice to support the position in its statement of defence that it was acting in good faith in its negotiations. Having waived privilege by including this email and referencing the legal advice, the plaintiffs argue that the defendant must produce all communication between it and its lawyers concerning the negotiation of the section 30 agreement and the PTE so that they may refute Metrolinx’ assertion that they had ulterior motives and were being unreasonable.

[24] Metrolinx has included its lawyer’s email as evidence of its defence of good faith but also to support its speculation about the plaintiffs’ motives. In using the email in that way, it has chosen to make the views of its lawyer an integral part of its defence (Canadian Appliance Source Inc. v. Utradecanada.com Inc. 2018 ONSC 2960 at paragraph 10). As noted in that case:

“a client is generally deemed to have waived privilege if its counsel supports its case by means of an affidavit of his or her own that addresses matters of substance in the proceeding: Sky Solar v Economical Mutual Insurance Co., 2015 ONSC 4714, at para 108. According to Sharpe J. (as he then was), this includes incidents where a lawyer’s affidavit is submitted to establish the facts necessary to support the client’s case: United States v Friedland, 1996 CanLII 8213 (ON SC), 1996 CarswellOnt 3604, at para 14.”

[25] Considering the referenced legal advice, the plaintiffs plead in their statement of claim that they wanted any due diligence provisions to be incorporated as part of the terms of the overall section 30 agreement, without the need for a separate PTE (paragraphs 70-76). Metrolinx told them that it required the PTE to complete due diligence on the property prior to entering into a section 30 agreement, based on advice from its lawyers that a number of items required clarification before it could go further. It intends to rely on the advice from its counsel as set out in this email to support its argument of good faith.

[26] The plaintiffs wish to challenge both the assertion of Metrolinx’ lawyer that they had ulterior motives for their position and also the assertion that the insistence on a PTE was a precondition to a section 30 agreement, as advised by their lawyers and that they were acting in good faith by following that advice.

[27] As stated in Guelph v. Super Blue Box Recycling Corp. 2004 CanLII 34954 (Ont. S.C.J.) at paragraph 97, “when faced with a claim of bad faith, a party that responds by relying on good faith conduct as a result of following legal advice will thereby waive its privilege.”

[28] The court in Canadian Appliance Store, supra, held,

“The Master’s endorsement reproduced the essential parts of the Radcliffe affidavit. The material presented in that affidavit was extensive. The part excerpted by the Master runs to some 30 paragraphs, and covers every significant detail of the parties’ negotiations. It includes Radcliffe’s views on what was important and what was not in those negotiations, his descriptions of the Plaintiff’s reaction to and perspective on the positions taken by the Defendants in the negotiations, speculation on what the Defendants may have been thinking during those negotiations, Radcliffe’s own thoughts on what was within his client’s rights and what was not, his recommendations to his client at various steps in the negotiations, etc. It also contains his views on the Defendants having breached an enforceable lease agreement, and his opinion as to the supposed bad faith of the Defendants.”

[29] The court held that the lawyer’s affidavit “was an extensive review of the entire negotiations between the parties, and contained a combination of fact, legal analysis, opinion, and negotiation strategy”, the collective effect and weight of which caused it to conclude that “CASI’s counsel has ‘entered the fray’ by advancing evidence, opinions and positions which put the strength of CASI’s case and its state of mind forward in support of CASI’s positions on the motions.”

[30] In this case, while the material filed here was not in the form of a solicitor’s affidavit, it contained legal advice and opinion from those solicitors. And while not as extensive as the solicitor’s work put before the court in Canadian Appliance Store, supra, it, like that case, set out the lawyers’ views on what was important in the negotiations, what the plaintiffs’ reaction was to the defendant’s position, his perspective on the positions taken by the other side, speculation on what the other side may have been thinking and his opinion, indirectly, of the good faith of his own client.

[31] I find the defendant tendered this evidence to support its defence that it acted in good faith and the plaintiffs did not and, in fact, had an ulterior motive for their conduct. As to the extent of the disclosure now required, the parties did not present any middle ground in their submissions. The plaintiffs argue that all documents between the defendant and its lawyers relating to the negotiation of the PTE and the section 30 agreement must be produced. Metrolinx argues that nothing should be produced. I find neither position to be warranted.

[32] I am mindful that waiver of solicitor-client privilege is to be narrowly construed. As noted in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7258 (ON SC), 27 O.R. (3d) 291, production of one privileged document does not waive privilege over other documents or over the entire solicitor-client communication. I do not find that all correspondence between Metrolinx and its lawyers on the section 30 agreement negotiations or PTE negotiations need be produced.

[33] Metrolinx has tendered its lawyers’ evidence to support its position on two issues: the ulterior motives of the plaintiffs and its own good faith. It may be that the motions judge will find Mr. Baker’s speculation about the plaintiffs’ conduct to be irrelevant. However, Metrolinx has tendered it with the intention that the judge consider it. I find it to be fair and proportionate that Metrolinx produce any correspondence between it and its counsel concerning their views or speculation on the plaintiffs’ demands that their lands be acquired, on the purpose of the plaintiffs’ lawyer’s emails and concerning the rationale for the plaintiffs’ objection to a PTE.

[34] As for the information concerning the good faith requirements of Metrolinx to proceed, it is to disclose the advice from its lawyers as to what specific items required clarification before a draft agreement could be prepared, why they were required and what specific clarifications were required.

[35] Lastly, the plaintiffs request a copy of the summary that Barns received from Metrolinx’ lawyer in order for her to depose to certain portions of her affidavit. Specifically Barns included in her affidavit information about a meeting between Waqué, Metrolinx’ lawyer, and the plaintiffs’ lawyer. She was not present at the meeting and confirmed that the information she included was based on a summary she received from Waqué, over which the defendant has claimed privilege. Paragraph 93 of her affidavit states:

“On or about March 6, 2018, Stephen Waqué of BLG met with Mr. Rayman to have a personal meeting in response to Halloway’s constant demands to be acquired. Mr. Waqué advised Mr. Rayman that Metrolinx was not in a position to expropriate the Subject Property; Metrolinx was still seeking further appraisal advice and it was premature to commit to signing a Section 30 Agreement. Mr. Waqué and Mr. Rayman discussed the possibility of a “blind” Section 30 agreement with an extended timeline, the purpose of which would be to give Metrolinx more flexibility to determine its position on the valuation of the Requirement. A “blind” Section 30 agreement would have committed Metrolinx to acquire the Subject Property, but have compensation determined later on, after Metrolinx had been given access to the property and finalized an appraisal report. However, regardless of Metrolinx’s position on value it would have entitled Halloway the right to seek additional compensation before the OMB unless the agreement clarified or capped the claim at some maximum exposure.”

[36] The plaintiffs argue that they cannot refute these statements about what was discussed at that lawyers’ meeting, and with which they disagree, absent disclosure of the summary, without having their lawyer swear an affidavit and waive their own privilege, which they do not wish to do.

[37] I find that the summary received by Barns and on which she based paragraph 93 of her affidavit should be produced. The defendant argues that a voluntary waiver over select aspects of privileged information can be made unless to do so would be misleading or result in an unfair advantage. In light of the plaintiffs’ position that they would have to waive their own privilege to respond to these statements attributed to Waqué about the meeting, I find that they are being put at an unfair advantage which requires disclosure of the memo.

C. THE DEFENDANT’S MOTION

[38] The defendant seeks answers to a number of refusals given on its cross examination of Elizabeth Kelly (“Kelly”), a director of each plaintiff, on her affidavit sworn 20 November 2019.

Grouping 1 – Questions concerning Halloway’s interactions with Metrolinx

[39] Under advisements Q381 and Q428 and refusal Q732 fall into this grouping.

[40] Question 381 requests copies of all diary entries of any meeting Kelly attended with anyone from Metrolinx to discuss potential property acquisition. The defendant argues that the information is relevant to its assertion that it and the plaintiffs never reached an agreement for the purchase of the property and that it was unreasonable for the plaintiffs to assume an acquisition was guaranteed when the parties had not agreed on the terms of a section 30 agreement.

[41] The plaintiffs have advised that they will make inquiries as to notes from specific meetings at Metrolinx’ request but that the question is otherwise vague given the scope. I find the question to be sufficiently specific. Kelly shall produce her diary entries for any meeting she had with a representative of Metrolinx at which the acquisition of this property was discussed.

[42] Question 428 seeks records of sales information that informed the plaintiffs’ view of the appropriate value of the property, including the date of the sales information. The plaintiffs advised on the motion that they have produced all information that they have and that they rely on. The plaintiffs shall confirm this in writing to the defendant and the question will then have been answered.

[43] Question 732 asks whether it would be acceptable to Kelly if Metrolinx resold the property. The defendant argues if the plaintiffs advised they would be upset by any resale, it would speak to their motivation for insisting on a sale without a PTE. Even if I were to permit the hypothetical question to be answered, I do not see how whether Kelly would or would not be upset would assist the court in determining the plaintiffs’ motive for selling. This question need not be answered.

Grouping 2 – Questions concerning the Durham Learning and Business District (“dLAB”) project, a potential development in the vicinity of the plaintiffs’ property which would include a parcel of the plaintiffs’ property aside from the parcel potentially involving Metrolinx

[44] Undertaking Q323, under advisement Q168 and refusals Q178 and Q590 fall into this category.

[45] For Q323, the plaintiffs have answered when the last meeting took place. They are to advise of the content of those discussions, which was canvassed in the subsequent series of questions.

[46] In Q168 Metrolinx seeks production of any partnership agreement between the plaintiffs and dLAB and evidence of the plaintiffs’ financial contributions to dLAB. Metrolinx argues that the particulars of the plaintiffs’ involvement will demonstrate their understanding of their development rights, which they allege Metrolinx has interfered with. The plaintiffs have admitted that there is a partnership agreement, but argue that it is irrelevant for the purposes of this motion and that, in any event, it is subject to confidentiality provisions that prohibit its production. I agree that the relevance of the terms of the partnership agreement and any financial contributions has not been made out for the purposes of the pending motion and the question need not be answered. However, the plaintiffs may be asked and must answer whether the partnership agreement mentioned or was contingent upon the purchase or proposed purchase of the lands in question.

[47] Metrolinx seeks production of the plaintiffs’ dLAB file at Q178. It argues that there may be admissions in the file that the plaintiffs knew the land acquisition was not guaranteed. Metrolinx argues it never went beyond identifying the plaintiffs’ lands for potential acquisition for future infrastructure development and that it did not represent to the plaintiffs that it would acquire the lands without first agreeing to the material terms of a sale or finalizing a section 30 agreement. The question of what was represented is clearly relevant to the motion but there is no evidence before me to suggest that the dLAB file would contain any relevant information, so this line of inquiry does not make it beyond a speculative fishing expedition at present. The question need not be answered.

[48] Question 590 seeks the name of the company Kelly intends to form. This is not relevant to the summary judgment motion and need not be answered.

Grouping 3 – Questions on the plaintiffs’ development activities

[49] Under advisements Q890 and Q894 and refusals Q19, Q20 and Q30 fall into this category. The questions all seek information about companies related to the plaintiffs and Kelly’s ownership interest in other real estate or development companies. The defendant argues that answers to these questions may elicit evidence that the plaintiffs were sophisticated developers and it was unreasonable for them to believe that Metrolinx’ acquisition of their property was guaranteed.

[50] The questions that attempt to elicit information about the plaintiffs’ expertise are not proportionate. Halloway has admitted it is a real estate developer and carries out development activities. Further, Metrolinx already has information that touches on the plaintiffs’ sophistication and their dealings with acquisitions by public entities. In particular, the defendant is already aware that the plaintiffs had been involved earlier in the proposed public acquisition of another of their properties, where the land acquisition did not occur until 12 years after the commencement of the environmental assessment and the plaintiffs negotiated a dedication of those lands to the municipality.

[51] I find that the questions concerning companies related or potentially related to the plaintiffs and questions concerning Kelly’s personal involvement in other allegedly related companies to be irrelevant. The questions need not be answered.

Grouping 4 – Questions re statements of value in the Hann estate/made to CRA

[52] Refusal Q460 requested that the plaintiffs search the records of the experts and lawyers consulted on Hann’s estate and advise if there were any statements of value or appraisal reports or reports of value filed with CRA that relate to the property.

[53] The defendant argues this is relevant as it may contain representations by Hann as to the value of the property and may show what the plaintiffs understood the development rights of the property to be. I find this to be too speculative a basis on which to order production and to be disproportionate. The question need not be answered.

D. CONCLUSION

[54] Each party shall answer the questions ordered above within 30 days of this decision. Each party has requested that the other re-attend to be further cross-examined within a reasonable time after the answers have been provided and I so order.

[55] I encourage the parties to attempt to come to an agreement on costs. If they are unable to do so within 30 days of this decision, after making reasonable efforts, they may each submit a bill of costs and a costs outline of no more than three pages to my assistant trial coordinator at Christine.Meditskos@ontario.ca.

Master Jolley

Date: 14 January 2021