Court File and Parties

COURT FILE NO.: CV-20-652919 DATE: 20210623 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ROGERS COMMUNICATIONS CANADA INC., Applicant AND: ACTIVE SECURITY AND CABLE INC. and NARESH MOHABIR, Respondents

BEFORE: Mr. Justice Chalmers COUNSEL: M. Byers and J. Shneer for the Applicant A. Boghossian, for the Respondents HEARD: June 22, 2021, by teleconference

Endorsement

[1] The Application is scheduled to be heard on July 15, 2021 by Justice Ramsay. The Applicant, Rogers Communications Canada requests this case conference seeking directions with respect to the production of the bank records. The bank records were ordered to be produced by the Respondents pursuant to my order dated December 11, 2020.

[2] My order dated December 11, 2020, orders the Respondents to produce:

“all financial and other records, in their power, possession and control relating to and/or documenting the recipient of the Funds, receipt of the Funds and the transfer or disbursement, if any , of the Funds, including bank statements and transaction documents for their bank accounts that may memorialize these matters, including but not limited to Bank of Montreal (“BMO”) Bank Account #001-1066983-29862 and he accounts listed at Schedule “A”.

[3] Schedule A to the order lists 10 separate bank accounts at BMO and the Canadian Imperial Bank of Commerce.

[4] On December 21, 2020, I ordered that my order dated December 11, 2020 shall remain in full force and effect until the hearing of the Application or further order of the court.

[5] Counsel for the Applicant states that no bank statements have been produced and therefore the Respondents are in breach of my order. He also states that the bank records are necessary because of discrepancies in the financial information provided to date. There is reference in the material to a withdrawal of $325,000 on December 4, 2020. If this relates to the transfer of the Fund in issue, it was made after the Respondents were notified of the error on December 3, 2020. In addition, it puts into question whether the payments were made to the CRA on November 30, 2020 in the amount of $153,892.40, Meridian on December 1, 2020 in the amount of $82,520.97 and CWB on December 1, 2020, in the amount of $75,430.00.

[6] Counsel for the Respondents states that all bank statements in the Respondents possession power and control, have been produced, and they have fully complied with my order.

[7] I stated to both counsel that it is difficult to understand how one party can say that no bank statements have been produced and the other party say that all bank statements have been produced. There is either a misunderstanding of what a bank statement is, or one party has a mistaken belief in what has or has not been produced to date.

[8] To ensure there is no further confusion, I direct the Respondents to produce all bank statements set out in my December 11, 2020 at this time. The order requires the production of all bank statements that relate to the receipt of the Fund and the transfer or disbursement of the Fund. To be clear, the bank statements themselves are to be produced and not just a summary of the information contained in the statements. If the statements have already been produced by the Respondents, it will be necessary for the Respondents to send another copy. If the bank statements are in the possession of a third party such as BMO or CIBC, and the third parties have not provided the statements, I direct those third parties to produce the bank statements to the Respondents as soon as possible to ensure that the Respondents can comply with my order.

[9] Counsel for the Respondents request that the bank statements be redacted. If all bank statements have already been produced as he has stated I am not sure what bank statements are to be redacted. In any event, I am not prepared to make an order redacting the bank statements. My order dated December 11, 2020 does not provide that the bank statements are to be redacted. That order was not appealed and continues to be in effect. In any event, the documents produced are in connection with this Application and therefore governed by the deemed undertaking.

[10] Counsel for the Respondents objects to an order being made for production on a case conference. Pursuant to R. 50.13(6), a Judge on a case conference may make a procedural order and make an order for interlocutory relief. I am satisfied that the Respondents received notice that the Applicant would be seeking directions with respect to the enforcement of my order dated December 11, 2020. I am also of the view that directions with respect to the compliance of my order are appropriate to ensure that the Application can proceed on July 15, 2021 on a full record.

[11] Counsel for the Respondents also objects on the basis that the Applicant was ready to proceed to argue the Application on May 4, 2021 and should not have an opportunity to obtain further production after that date. I note that the adjournment of the Application was at the request of the Respondents. Also, there is no time limit on my order of December 11, 2020. The fact the Applicant did not move before May 4, 2021 for compliance with my order does not preclude them from moving now.

[12] Counsel for the Respondents also objects on the basis that the documents requested are the subject matter of undertakings on the cross-examination and the motion should have been brought on a formal record before a Master. If, as the counsel for the Respondents states, the bank statements have already been produced I am not sure why an undertaking was necessary. The documents were ordered to be produced on December 11, 2020, and it is my view that it is appropriate that I make an order with respect to compliance with my earlier order. I have the jurisdiction to make the order requested.

[13] I direct the Respondents to produce all bank statements that relate to the receipt of the Fund and the transfer or disbursement of the Fund, by the end of the business day on Friday, June 25, 2021. Counsel for the Respondents states that all bank statements have already been produced so all that ought to be required is to copy and resend the bank records. If in fact, all bank statements have not been produced, the Respondents ought to be able to access the bank statements online and to copy and print the records. If for some reason the bank is refusing to produce the records notwithstanding my direction set out in paragraph 7 above, the parties may bring an urgent R. 30.10 motion before me. The R. 30.10 motion shall be on notice to the bank that it is failing to produce the statements.

[14] It is my view that it is imperative that the Application proceed as scheduled on July 15, 2021. It is also imperative that there be full compliance with my order dated December 11, 2020 and that the record include all bank statements which relate to the receipt and disbursement of the Fund.

[15] Costs of today are reserved to the Judge hearing the Application.

[16] I remain seized with respect to any procedural issues for the Application.

DATE: JUNE 23, 2021