COURT FILE NO.: FS-16-414407
DATE: 20210520
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shirley Wong, Applicant
AND: Newton Wong and Janet Wong (aka Janet lee), Respondents
BEFORE: C. Horkins J.
COUNSEL: Kenneth Cole and Erin Betts, for the Applicant
Andrea Di Battista, for the Respondents
HEARD at Toronto: April 29, 2021
REASONS FOR DECISION
Overview
[1] The Applicant, Shirley Wong (“Shirley”), brings a motion to strike the pleadings of the Respondents, Newton Wong (“Newton”) and his mother Janet Wong (“Janet”), for failure to comply with orders for disclosure.
[2] Newton has not complied with the order of Akbarali J. dated February 27, 2018. Both he and Janet failed to comply with the temporary disclosure order of Kristjanson J., dated December 13, 2018. Recently, Newton failed to comply with the order of Nishikawa J. dated December 15, 2020.
[3] Justices Akbarali and Kristjanson warned Newton that if he failed to comply with the orders made, his pleading could be struck. Justice Kristjanson ordered that if Janet did not provide a “comprehensive response” to Shirley’s Request for Information by February 15, 2019, Shirley could move to strike Janet’s answer.
[4] Shirley and Newton separated on August 5, 2012 after 20 years of marriage. They have three adult children. Newton is a successful lawyer in Toronto with his own law firm, Newton Wong & Associates, and he has had an interest in various corporate entities over the years. During the marriage, Shirley had minimal knowledge of Newton’s business affairs.
[5] The financial circumstances of the parties are intertwined. Shirley pleads that she and Newton pooled their economic resources to purchase and maintain the matrimonial home on Leacroft, many rental properties and Newton’s law practice.
[6] There is a dispute about the ownership and funding of the Leacroft home where the family lived. Title is held by the parties as tenants in common. Shirley and Newton own 25 percent each and Janet owns 50 percent. Shirley pleads that she is entitled to 50 percent of this matrimonial home and pleads that Janet holds 50 percent in trust for Shirley and Newton.
[7] Janet alleges that she alone paid for all expenses associated with the purchase and maintenance of the Leacroft home. She alleges that she is the sole owner and that Shirley fraudulently put her name on the title. Shirley disputes Janet’s allegations.
[8] Shirley seeks a declaration that the parties were engaged in a joint family venture and a monetary remedy or a trust granting her at least half of Newton’s assets.
[9] In her Application issued in November 2016, Shirley requests a valuation of all Newton’s business interests and a determination of his true income from all sources.
[10] Almost nine years have passed since separation. Newton's true income for support purposes is still unknown. Newton has failed to provide financial statements for his business interests, a valuation of his businesses or an income report.
[11] The delay and non-compliance with Requests for Information and court orders is egregious.
Request to adjourn the motion
[12] The Respondents requested an adjournment of Shirley’s motion. This was denied. My reasons follow.
[13] The Respondents argued that the motion should be adjourned for the following reasons:
Newton’s experts, “Anna Barrett of Marmer Penner and Gabriela Dos require additional time to complete their work on behalf of Newton Wong, and a request is made to adjourn this matter to a date after the timeline for completion”;
Shirley’s motion is not urgent; and
The motion will take more than an hour to argue and so a long motion date should be scheduled in four months’ time.
[14] There was ample time to hear the motion and the parties were given a half day. Requesting a four-month adjournment for a long motion date was yet another delay tactic by the Respondents.
[15] There was no reliable evidence that the Respondents would use the adjournment to comply with their disclosure obligations and court orders.
[16] While the motion was not urgent in the sense of danger or serious consequences to Shirley’s well-being or that of the adult children, this application has reached the point where the court must deal with the consequences of the Respondents’ egregious failure to provide disclosure and comply with court orders. This is Shirley’s third motion to strike pleadings.
[17] The Respondents have had years to comply with the court orders directing disclosure and more than a year to respond to Shirley’s motion. The details are reviewed in these reasons.
The Legal Framework
[18] The importance of financial disclosure is succinctly set out in Roberts v. Roberts, 2015 ONCA 450, at paras. 11-13:
[11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.
[12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled.
[13] Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.
[19] Rule 1(8) of the Family Law Rules, O. Reg. 114/99 provides that if a person fails to obey an order, the court may make any order that it considers necessary for a just determination of the matter, including an order for costs or an order striking out an answer, financial statement, affidavit or any other document filed by a party.
[20] Pursuant to r. 1(8.4), if a party's answer is struck out, the following consequences apply unless a court orders otherwise: the party is not entitled to any further notice of steps in the case; the party is not entitled to participate in the case in any way; and the court may set a date for an uncontested trial.
[21] The law is clear that striking a pleading is a drastic remedy of last resort. It is to be used sparingly in exceptional and egregious cases when no other remedy would suffice: see Purcaru v. Purcaru, 2010 ONCA 92, at para. 47; Chiaramonte v. Chiaramonte, 2013 ONCA 641, at paras. 31-32; and Peerenboom v. Peerenboom, 2020 ONCA 240, at para. 48.
[22] Finally, in deciding whether to strike a pleading, the court must consider that the primary objective of the Family Law Rules is to “enable the court to deal with cases justly” (r. 2(2)).
[23] When applying the Family Law Rules, the court has a duty to promote this primary objective and “parties and their lawyers are required to help the court promote the primary objective” (r. 2(4)).
History of non-compliance
[24] After the separation in 2012, Newton refused to provide even the most basic financial disclosure for several years. As a result, Shirley was forced to commence an Application on December 19, 2016. Since that time, Newton has provided minimal financial disclosure.
[25] Since the application was issued in December 2016, Newton has repeatedly failed to comply with the Family Law Rules and court orders. It is important to review the depth and seriousness of Newton’s non-compliance.
Justice Akbarali’s Order
[26] On February 27, 2018, Shirley brought a motion before Akbarali J. for financial disclosure from Newton or an order striking his Answer. At that point, Newton had failed to:
provide the required financial disclosure;
serve a case conference brief, which made the case conference on April 26, 2017 completely unproductive; and
provide a response to Shirley's detailed Request for Information, dated June 30, 2017, which was served on him seven months prior.
[27] Justice Akbarali refused Newton’s request for an adjournment, finding that the matter had “languished for too long already”. The motion had been served a month earlier and Newton had recently discharged his counsel. He had filed no responding material and had not answered the Request for Information that was served in June 2017. Newton told Justice Akbarali that he would answer the Request for Information in three weeks and that his mother Janet would also file her Answer.
[28] Justice Akbarali ordered Newton to provide a response to Shirley's Request for Information in 21 days, including an affidavit explaining any information that was not available to him. If Newton failed to comply, Akbarali J. ordered that Shirley could move without notice on a 14B motion to strike Newton’s Answer. Justice Akbarali ordered Newton to pay Shirley costs of $12,046.15. This amount covered costs of the case conference and motion. Justice Akbarali found that Newton showed the same disregard for the case conference as he did on the motion, referring to his failure to follow the Family Law Rules.
[29] Although Newton subsequently provided a response to Shirley's Request for Information, most of the request remained unanswered or inadequately answered.
Justice Kristjanson’s Order
[30] As a result of Newton's failure to comply with Akbarali J.’s order, Shirley brought a second motion to strike pleadings on December 13, 2018 before Kristjanson J. This was nine months after the compliance deadline in Akbarali J.’s order.
[31] Shirley also sought relief against Janet, who had filed an Answer but had not complied with the Request for Information that was served on May 22, 2018.
[32] On this motion, Shirley filed her detailed Request for Information. It is clear from the endorsement that Kristjanson J. reviewed this Request and incorporated it into her orders.
[33] Justice Kristjanson gave Newton another chance to comply and ordered that he produce his disclosure by February 15, 2019. The order set out in detail what Newton had to provide and attached the June 30, 2017 Request for Information.
[34] Janet was ordered to provide a comprehensive response to Shirley’s Request for Information by February 15, 2019.
[35] If Newton or Janet failed to comply, Kristjanson J. ordered that Shirley could move to strike their Answers.
[36] Newton was ordered to pay Shirley costs of the motion in the amount of $10,420.44, inclusive of disbursements and HST.
[37] In her reasons, Kristjanson J. stated that Newton did not meet “his most basic obligations of family law disclosure”. She found that there was “urgency to the preparation of [the] financial statements”. It was his “responsibility” to value his business interests and obtain an income report. His “failure to obtain valuations” is not an acceptable position in family litigation. A “significant amount of disclosure was outstanding” and there were “gross deficiencies” in his disclosure. She found his conduct to be “unreasonable”.
Non-Compliance with Kristjanson J.’s Order
[38] Newton paid the costs but did not produce most of the disclosure that Kristjanson J. ordered him to provide by February 15, 2019.
[39] Justice Kristjanson’s order required Newton to retain an accountant or certified business valuator (“CBV”) to prepare financial statements for Newton’s numerous corporate entities. The order required Newton to confirm the retainer by January 11, 2019 and provide confirmation from the accountant/CBV of the estimated time to complete the work, which had to be done by March 18, 2019. Newton did not comply.
[40] After the January 11, 2019 deadline, Shirley received an email on February 15, 2019. This included a one-page curriculum vitae from Bob Siu Keung Lo, which was not a complete document. The email stated that Mr. Lo will be supported by BDO Canada LLP regarding the engagement. This was provided more than a month after the deadline in the order. There was no written confirmation that BDO Canada LLP or Mr. Lo had been retained nor had Shirley received the estimated time for completion of the valuations.
[41] It was Shirley’s belief that Mr. Lo, who was their neighbor, had retired. It was not clear if Mr. Lo had maintained his qualifications as a chartered accountant.
[42] Newton’s evidence is that he hired Mr. Lo in January 2019. His evidence is a heavily redacted email from Mr. Lo to Newton, dated January 14, 2019. While the email states that Mr. Lo was retained, there is no evidence that any work was ever done. Newton says that in August 2019, Mr. Lo told him he would be unavailable for six months and could not prepare Newton’s financial statements and income tax return.
[43] On August 16, 2019, months after Newton's disclosure was due, Ms. Di Battista wrote to Mr. Cole and explained that:
Unfortunately, our client has had to retain an alternate expert. He has retained Anna Barrett of Marmer Penner Inc. We attach a Fee Letter dated August 15th that confirms that Ms. Barrett has been retained. We expect to provide you with confirmation of the specific work to be performed by Ms. Barrett shortly. We have received the link to access the additional disclosure from your client. We are also in the process of collecting additional disclosure which we hope to provide to you shortly.
[44] Shirley’s counsel responded, highlighting that the Respondents had missed every court deadline and that the Fee Letter did not confirm that Ms. Barrett was retained to do the valuation and income report required by the court order, nor did it indicate whether she had been retained to prepare the financial statements for the various business entities as required by the court order.
[45] Ms. Barrett’s work could not start until Newton’s numerous corporate financial statements and income tax returns were completed by an accountant. She referred Newton to Mr. Kulbeck, an accountant.
[46] Newton states that he hired Mr. Kulbeck in September 2019 and began to provide him with documents. Newton does not say what documents he gave Mr. Kulbeck or when this happened. There is no acknowledgement from Mr. Kulbeck that he received documents from Newton and no confirmation that he accepted the retainer.
[47] From September 3, 2019 to November 15, 2019, there were several emails back and forth between Newton and Mr. Kulbeck trying to arrange a meeting. The last email exchange on November 15, 2019 confirms a meeting was to happen that day. The emails do not confirm that a meeting ever took place between Newton and Mr. Kulbeck or that Mr. Kulbeck was retained or given any documents at any time.
[48] According to Newton, Mr. Kulbeck said he could not prepare Newton’s income tax returns and financial statements. Presumably Mr. Kulback would have told him why, but Newton does not reveal what happened.
[49] In December 2019, Newton says that he hired Joseph Lee, another accountant. There are no documents confirming this retainer. For the next 6 months, nothing happened. On May 22, 2020, Newton emailed Mr. Lee and asked him to call about the “status of financials”. There is no evidence that a call took place.
[50] In late May 2020, Newton asked Ms. Barrett for a referral to another accountant. She recommended Ms. Dos.
[51] According to Newton, Ms. Dos was away until October 23, 2020 and he did not meet with her until she returned. He says that he provided Ms. Dos with all the information she requested. He does not specify what information Ms. Dos requested or what he provided. There is no evidence that Newton gave such information to Shirley’s counsel.
[52] At this point, the limited disclosure that Newton had provided to Shirley was extremely disorganized and fundamentally unresponsive to the detailed requirements of Kristjanson J.'s order. Shirley decided to bring a third motion to strike pleadings.
[53] Shirley served an Amended Notice of Motion, dated November 20, 2020, with a motion date of December 15, 2020.
[54] On December 9, 2020, Ms. Dos confirmed in an email that she was retained to prepare financial statements and corporate income tax returns for 2016, 2017, 2018 and 2019. This email also states that she had reviewed the “outstanding disclosure required items list”. She does not acknowledge receiving or reviewing any documents from Newton. Ms. Dos hoped to have Newton’s “financials” for his law practice ready in a week. The email notes that this was a tentative deadline contingent on a few factors not set out in the email. She states that three bookkeepers were assigned “to prioritize expediency”.
Third motion to strike pleadings
[55] Shirley’s third motion to strike was supported by her December 13, 2019 affidavit that attached two comprehensive charts listing the outstanding disclosure. The charts list the outstanding items in Shirley’s Request for Information and provide the following information: the specific disclosure requested; the partial disclosure provided and date; and what is outstanding for the item.
[56] Shirley’s motion was scheduled to be heard on April 14, 2020 and was adjourned because of the COVID-19 pandemic.
[57] The rescheduling of the motion was to be spoken to in Court on June 16, 2020 but this date was cancelled because of the updated Notice to the Profession. While regular court proceedings were suspended, Shirley tried to resolve her motion, but the Respondents were largely uncooperative or unresponsive.
[58] Shirley’s motion was rescheduled to be heard on December 15, 2020, a year after her motion was served.
[59] Newton’s response was an affidavit dated December 9, 2020. It is filled with excuses for why he has not complied with the court orders. He states that he has given Ms. Dos all the documents that she has requested. The documents are not identified and there is no evidence from Ms. Dos that she has received any documents.
[60] In this affidavit, Newton acknowledged that he must provide the disclosure. He said he was working on it, though no details are given. He asked for “one further opportunity … four months to provide the outstanding items”.
[61] Newton blamed the “delays caused by the pandemic and the availability of his professionals”. He stated that four months is a reasonable time for him to comply with the orders. Of note, he stated that if given this time “I understand the likely consequences to me if the work is not completed and produced to counsel for the Applicant” [emphasis added].
[62] Shirley agreed to the adjournment. On December 11, 2020, the parties signed Temporary Minutes of Settlement that were incorporated into the order of Nishikawa J. dated December 15, 2020. This order adjourned Shirley’s motion to April 29, 2021; required Newton to pay Shirley $10,000 for costs; and ordered that he “shall fulfill all requirements under the order of Kristjanson J., dated December 13, 2018, by April 9, 2021”. As well, the order required Shirley to advise on or before January 4, 2021 whether she intends to pursue her motion to strike against Janet Wong.
[63] Shirley’s counsel reviewed the disclosure that Janet provided on December 8, 2020. Numerous documents were not produced, and many documents provided were heavily redacted. As a result, Mr. Cole confirmed in a letter, dated December 16, 2020, that the motion to strike would proceed against both Respondents. This letter set out a list of Janet’s outstanding disclosure and the deficiencies in what she had provided. Janet did not reply to this letter and provided no further disclosure. I will address the deficiencies in her disclosure below.
[64] Newton paid the costs but otherwise failed to comply with Nishikawa J.’s order. As of April 20, 2021, Newton had not provided any further disclosure since November 2019.
[65] Newton now asks for yet another chance to comply with the court orders. He points to the fact that he has paid every cost order made against him, suggesting that this somehow justifies his request for more time to comply. Newton’s payments of the costs do not excuse his disregard for court orders.
[66] In his April 23, 2021 affidavit, Newton states that he has “unfortunately continued to experience repeated issues getting the income tax returns and financial statements done which has in turn caused a delay in the preparation of income and business valuations”. The “repeated issues” are not identified or explained.
[67] Newton says that he provided Ms. Dos with “all the documentation” she initially requested in relation to the preparation of financial statements and tax returns. There is no evidence from Ms. Dos apart from her December 9, 2020 email. As noted, that email does not request any documents and does not acknowledge receiving any documents from Newton.
[68] Newton claims that Ms. Dos was not able to process and file the tax returns for his listed companies within the estimated two months. He does not explain why. He states that Ms. Dos estimates approximately four weeks to complete her work and Anna Barrett needs four to six weeks to prepare draft reports.
[69] Once again, he blames the delay on the pandemic and the availability of the professionals he retained to complete the work, including Ms. Dos and Ms. Barrett. To the contrary, Ms. Dos stated in her December 9, 2020 email that she has a team ready to do the work. There is no evidence that Ms. Dos or Ms. Barrett have been unavailable, nor is there evidence that prior accountants he allegedly retained are somehow to blame for the delay. Newton alone has caused the delay.
[70] The pandemic is a convenient excuse that Newton has seized upon. While the pandemic has created challenges for society, many businesses and this Court have continued to operate. The pandemic is not a reasonable excuse for having done virtually nothing to comply with the court orders, nor does it explain the years of delay and non-compliance before the pandemic happened. Newton’s evidence is that he closed his law office during the pandemic. This ought to have given him ample time to focus on this litigation and comply with the court orders.
[71] Newton’s evidence, and in particular his excuses, are contradicted by Anna Barrett’s April 23, 2021 affidavit. Paragraph 8 of her affidavit sets out the reason why the financial statements, income tax returns, business valuations and income report have not been done. Newton has not given Ms. Dos the information and documentation required to do the work:
We have been advised that, subject to a few exceptions noted below, no financial statements have been prepared for any of the aforementioned business interests from 2012 to date. We understand that Newton has retained Ms. Gabriela Dos (“Gabriela”) of Accounting Business Management to prepare these financial statements, based on our recommendation. She has informed us that she expects to complete her work approximately 4 weeks after Newton has provided her with the information and documentation to do so.
We expect that once we receive all of the information and documentation, we require to complete our analysis of Newton’s income for support purposes and to value his net business interests at the valuation date, that we will be in the position to issue draft reports 6 to 8 weeks thereafter. [Emphasis added.]
[72] Ms. Barrett acknowledges that she has received some information, but it is clearly not enough for Ms. Dos and Ms. Barrett to do the work in question. Many of the documents received are publicly available government records.
[73] Ms. Barrett states that she was retained by Newton on August 16, 2019. This was after the January 11, 2019 deadline in Kristjanson J.’s order.
[74] The April affidavits from Newton and Ms. Barrett also reveal some serious questions about Newton’s businesses. For example, Ms. Barrett identifies two of Newton’s companies that are inactive as confirmed by government records. Surprisingly, Newton claims the opposite. He asserts that both companies own an interest in property and have several hundred thousand dollars in value.
[75] Newton swears that his “current average monthly gross self-employment income is approximately $12,851.37” and yet no details are provided to support this exact amount. He claims that a property he owns in Ottawa is worth $260,000 and yet no documents or bank records are produced to support this amount.
Newton’s Answer is struck
[76] It is generally best for the administration of justice that both parties present their case fully at trial and a decision be made on the merits. However, when as in this case, a party willfully obstructs the court’s ability to deal with cases justly, the administration of justice will fall into disrepute if the court permits the defaulting party to benefit from such actions to the prejudice of the opposing party.
[77] The facts in this case are exceptional and egregious. An order striking Newton’s Answer is necessary. No other remedy will suffice to protect the administration of justice.
[78] Newton has had almost nine years to gather and provide his disclosure. The risk of his pleading being struck was made clear by Akbarali J. and Kristjanson J. He has had multiple opportunities to comply.
[79] Newton has demonstrated a complete lack of respect for court orders. His excuses for non-compliance are hollow and lack honesty. He argues that he has paid all the costs orders as if this somehow neutralizes the seriousness of his behaviour.
[80] Like Roberts, this is a case where the Respondent has failed to comply with multiple orders. Shirley has brought three motions to strike Newton’s Answer. Three orders gave him a chance to comply. Newton was admonished by Akbarali J. and Kristjanson J. He understands the seriousness of his default because he swore an affidavit in December 2020 stating so.
[81] Newton asks for yet another chance to comply but has provided no evidence to show that he will act in good faith and comply. To the contrary, he has consistently and willfully obstructed the fair and proper determination of the issues in this case to the prejudice of Shirley.
[82] There are no parenting issues. This is a case about money and property, and Newton has willfully stonewalled every step that Shirley has taken to obtain disclosure. His pleading must be struck. There is no alternative.
[83] I make the following orders against the Respondent, Newton Wong:
Pursuant to r. 1(8)(c) of the Family Law Rules, the pleadings of the Respondent, Newton Wong, are struck for his failure to comply with the order of Akbarali J., dated February 27, 2018; the order of Kristjanson J., dated December 13, 2018; and the order of Nishikawa J., dated December 15, 2020.
Pursuant to r. 1(8)(e) of the Family Law Rules, the Respondent, Newton Wong, is not entitled to any further orders from the Court as a result of his failure to comply with the orders in para. 1.
The Applicant, Shirley Wong may proceed with this case against the Respondent Newton Wong on an uncontested trial by way of affidavit evidence or as directed by the Court.
Janet’s Non-Compliance
[84] Justice Kristjanson specifically ordered Janet to provide a “comprehensive response to the Applicant’s Request for Information that was served on Janet Wong on May 22, 2018 by February 15, 2019, failing which the Applicant may move to strike the Respondent Janet Wong’s Answer”.
[85] Shirley states that Janet has not provided a comprehensive response and therefore her Answer should be struck. It is Janet’s position that she has provided the documents that are available, and she has “no further relevant disclosure to provide”.
[86] I find that Janet has not provided a comprehensive response. My reasons follow.
[87] While Janet has provided many documents, there are three main problems with her response to the Request for Information. First, some documents were refused because Janet claims that they are not relevant. Her income tax returns, notices of assessment and documentary evidence of all current income fall into this category. Second, the content of some of the documents has been redacted. Third, some of the requests are unanswered, incomplete or raise new requests.
[88] Janet argues that the relevance and reasonableness of the Request for Information has not been decided by the Court. For this reason, she submits that the comprehensiveness of her response cannot be decided until these threshold points are considered. I do not accept this argument.
[89] Shirley’s Request for Information is dated May 23, 2018. When it was not answered, Shirley brought her motion before Kristjanson J. on December 13, 2018. There is no evidence that Janet challenged the reasonableness or relevance of any item requested on this motion.
[90] The notice of motion before Kristjanson J. sought the following:
[An o]rder requiring the Respondent, Janet Wong, to provide the disclosure set out in the Applicant's Request for Information, dated May 23, 2018, within 14 days of the date of the motion; an Order that the Respondent's, Janet Wong, pleadings be struck if she fails to provide the disclosure set out in the Applicant's Request for Information within 14 days, and allowing the Applicant to proceed to obtain such an Order by way of a 14B motion without further notice to the Respondent, Janet Wong.
[91] Justice Kristjanson specifically ordered Janet to provide a comprehensive response to the list of items in Shirley’s Request for Information. A “comprehensive” response is a complete response. If there had been a challenge to the reasonableness or relevance of any item requested, it would be reflected in the endorsement and it is not.
[92] Janet filed an affidavit for this motion to strike that was sworn on December 9, 2020. The December 11, 2020 motion date was then adjourned as noted above. Shirley’s counsel agreed to review Janet’s disclosure and advise if the motion would proceed against Janet. The review confirmed that Janet’s disclosure was deficient. Janet was notified that the motion against her would proceed.
[93] In a December 16, 2020 letter to Janet’s counsel, Mr. Cole set out a list of the outstanding items and why the remaining requests are relevant. There was no response to this letter and Janet has not filed a further affidavit for this motion.
[94] I have reviewed Mr. Cole’s letter and agree that the requests are relevant as he has described. For example, Mr. Cole described the relevance of Janet’s personal income tax returns, notices of assessment or reassessments and documentary evidence of Janet’s current income from all sources, including but not limited to pension income and investment income, as follows: “This information is relevant to this proceeding and remains outstanding. Mrs. Wong continues to assert that she has paid for all carrying costs of 18 Leacroft to present day and the sources of funds enabling her to do so, including her income, is therefore relevant.”
[95] Shirley’s requests generally focus on Janet’s claim that she owns 100 percent of the Leacroft property and has paid all expenses associated with the purchase, ownership and upkeep. Several of the requests relate to Janet’s alleged financial contributions to this property and her claim that Newton funded the properties in Winnipeg.
[96] Shirley is entitled to question Janet’s claim that she funded the purchase, ownership and upkeep of the Leacroft property and Janet’s allegations about the other family properties. It is Shirley’s position that Janet did not make the contributions to Leacroft. The Request for Information is a tool for obtaining disclosure.
[97] Some of the documents that Janet produced contain redactions that impair counsel’s ability to scrutinize the content. Such redactions are contrary to the order that Janet provide a “comprehensive” answer to the Request for Information. Janet claims that the redactions are required to protect her personal information. She maintains that Shirley fraudulently changed the title to Leacroft (Janet owned 100 percent and 50 percent was transferred to Shirley and Newton, each holding 25 percent). I am not satisfied on the evidence before me that this unproven claim of fraud justifies the redactions.
[98] There was no reply to Mr. Cole’s December 16, 2020 letter, and Janet did not file a second affidavit for this motion. I do not accept that the order allows Janet to question the relevance or reasonableness of each request. Her opportunity to make this argument was on the motion before Kristjanson J. The fact that Janet did not challenge Mr. Cole’s letter or file a responding affidavit supports this conclusion. In any event, I am satisfied that the remaining Request for Information and deficiencies issues are relevant.
[99] Justice Kristjanson warned Janet that she would face a motion to strike if she did not comply. In the face of this warning, Janet did not provide a comprehensive response. However, because the appellate courts have defined the “strike order” as a remedy of last resort and have typically favoured giving a party a second chance, I decline to strike her Answer on this motion. The order I am making will give Janet one last opportunity to comply with Kristjanson J.’s order.
[100] I make the following orders against the Respondent, Janet Wong:
- Janet Wong shall comply with Kristjanson J.’s order by June 30, 2021. This shall include the following:
a) Answering the deficiencies, outstanding requests and follow up questions as set out in the Epstein Cole letter, dated May 16, 2020; and
b) Producing the documents without any redactions.
If a Request for Information seeks documents that are no longer available then Janet shall provide a comprehensive answer that sets out all steps she has taken to locate the information/documents and written confirmation from any third party who has advised Janet that such information and documents are not available.
If Janet does not comply with Kristjanson J.’s order by June 30, 2021, Shirley can bring a motion to strike Janet’s pleading.
Conclusion
[101] In summary, the orders I have made are set out above. If the parties cannot agree on the costs of this motion, they shall exchange brief written submissions and file them with the Court by June 18, 2021.
C. Horkins J.
Date: May 20, 2021