Court File and Parties
COURT FILE NO.: CV-19-00623956
MOTION HEARD: 20210726
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sun Gro Sales Inc., Plaintiff, Defendant to the Counterclaim
AND:
Co-operators General Insurance Company, Defendant, Plaintiff by Counterclaim
BEFORE: Master B. McAfee
COUNSEL: R. W. Dowhan, Counsel, for the Moving Party, the Defendant, Plaintiff by Counterclaim Co-operators General Insurance Company
G. McGuire, Counsel, for the Responding Party, the Plaintiff, Defendant to the Counterclaim Sun Gro Sales Inc.
J. Chan, Counsel, for the Responding Non-Party, the Attorney General of Ontario
K. Hong, Counsel, for the Responding Non-Party, the Attorney General of Canada
Perry Impens, In Person, Responding Non-Party
HEARD: July 26, 2021
Reasons for Decision
[1] The defendant, plaintiff by counterclaim Co-operators General Insurance Company (Co-operators) moves for an order for production of records from various non-parties pursuant to Rule 30.10 of the Rules of Civil Procedure.
[2] Mr. Perry Impens (Impens), a non-party, appeared in person and confirms that he does not oppose the motion as it relates to him. Counsel for Co-operators confirms that the non-parties ART Farms Inc. (Art Farms) and 2469974 Ontario Inc. o/a OFD Produce (OFD Produce) do not take a position on the motion as it relates to the relief against them. The plaintiff, defendant to the counterclaim Sun Gro Sales Inc. (Sun Gro) does not oppose the motion with respect to the relief as against Impens, Art Farms and OFD Produce.
[3] As set out at paragraph (b) of the amended notice of motion, Co-operators also seeks:
(b) An order requiring the respondent non-party, the Ontario Provincial Police (the “OPP”) to produce its file, including all notes, reports, exhibits, transcripts, etc., relating to the charges laid on December 19, 2019, against Sun Gro’s director and operating mind Attilio Montaleone (“Monteleone”), and Sun Gro’s employees John Daher (“Daher”) and Michael Simonelli (“Simonelli”) in connection with the operation led by the Organized Crime Enforcement Bureau known as Project Hobart.
[4] The motion in this regard is opposed by Sun Gro and the Attorney General of Ontario. The Attorney General of Canada takes no position on the motion in this regard. However, in the event that production is ordered, the Attorney General of Canada and Co-operators have agreed to a term of the production.
[5] In the alternative, if the requested production from the OPP is not ordered at this time, Co-operators seeks a stay of the action until such time as the criminal proceedings are complete and the records can be produced.
[6] At all material times Sun Gro operated a wholesale vegetable business in Toronto. On April 30, 2018, a fire occurred at Sun Gro’s rented premises located at 82 Akron Road, Toronto, Ontario (the fire).
[7] There is no issue that the fire was caused by arson. Sun Gro denies any involvement in the fire.
[8] At the time of the fire, Sun Gro was insured by Co-operators. Sun Gro submitted a claim to Co-operators. Co-operators denied the claim. It is the position of Co-operators that the fire was a planned event and not a fortuitous loss, or in the alternative was a criminal event carried out or directed by Sun Gro.
[9] On July 18, 2019, Sun Gro commenced this action against Co-operators seeking damages for amounts owing under the insurance policy and consequential damages as a result of the denial of coverage.
[10] On or about September 4, 2019, Co-operators served a statement of defence and counterclaim. In its counterclaim, Co-operators seeks repayment of $150,000.00 advanced to Sun Gro.
[11] A pre-trial is scheduled to proceed on December 13, 2021. A 10-day non-jury trial is scheduled to proceed on February 7, 2022.
[12] Rule 30.10 of the Rules of Civil Procedure provides:
30.10(1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
[13] Production from a non-party should only be ordered in exceptional circumstances (Morse Shoe (Canada) Ltd. v. Zellers Inc., 1997 1573 (ON CA), [1997] O.J. No. 1524 (C.A.) at para. 19). Production from a non-party is an exceptional remedy (Marshall v. Gladders Estate, 2014 ONSC 2821 (Ont. S.C.J.) at para. 32).
[14] A moving party must satisfy both branches of the test under Rule 30.10. The first part of the test is relevance to a material issue in the action. The assessment of the second part of the test is only made after the documents are found to be relevant to a material issue (Ontario (Attorney General) v. Stavro, 1995 3509 (ON CA), [1995] O.J. No. 3136 (C.A.) at para. 6).
[15] Co-operators has not satisfied the first branch of the test under Rule 30.10.
[16] Project Hobart is a multi-year investigation into alleged organized crime in Ontario involving alleged illegal gaming, betting and bookmaking, related profiting, money laundering and fraud. The investigation involved a joint task force led by members of the OPP Criminal Investigation Branch and Organized Crime Enforcement Bureau and included eighteen police agencies and enforcement organizations.
[17] Montaleone, Daher and Simonelli are three of thirty-seven accused charged on or about December 12, 2019 under Project Hobart. Three hundred and thirty-three charges were laid under Project Hobart, seventy-four of which have been resolved to date. The material before me sets out the original charges laid on December 12, 2019 against Montaleone, Daher and Simonelli and the status of the charges, including those charges withdrawn or stayed (Affidavit of J. Stuart, paras. 12-14). None of the charges laid on December 12, 2019 against Montaleone, Daher and Simonelli are charges of arson.
[18] Of the three hundred and thirty-three charges laid, there is one charge of arson against another individual with respect to a cottage property. There is no evidence before me that the other individual has any connection with Sun Gro or that the cottage property has any connection with Sun Gro.
[19] The affidavit evidence filed by Co-operators in support of the motion states: “It is not clear if there was a direct connection between the arson at the Premises and Project Hobart” (Affidavit of E. Kerson, para. 51).
[20] None of the pleadings before me suggest that the records from Project Hobart relating to the charges against Montaleone, Daher and Simonelli are relevant to a material issue in this action.
[21] The criminal investigation into the fire is separate and apart from the Project Hobart investigation. The Toronto Police Service (TPS) investigated the fire and determined that the cause of the fire was arson. The TPS investigation remains ongoing and no suspects have been identified. The TPS has indicated that they have no concerns regarding Sun Gro and the fire and that Sun Gro’s principal is not a suspect (Affidavit of K. McCooty, Exhibits “B” and “C”). Co-operators does not seek the records from the TPS.
[22] Co-operators has not discharged the onus of showing that the portions of the OPP file including the Crown Brief regarding Project Hobart and relating to the charges against Montaleone, Daher and Simonelli, are relevant to a material issue in this action. Having not satisfied the first branch of the test, the motion for production of these non-party records is dismissed.
[23] Not being satisfied that the portions of the OPP file including the Crown Brief regarding Project Hobart and relating to the charges against Montaleone, Daher and Simonelli are relevant to a material issue in the action, I am also not satisfied of a basis to grant the alternative relief of a stay until such time as the documents can be produced. The motion in this regard is also dismissed.
[24] The Attorney General of Ontario and Sun Gro were successful in opposing the requested production of the OPP file. The Attorney General of Ontario and Sun Gro are entitled to costs of the motion. The amount of $2,250.00 sought by Attorney General of Ontario and the amount of $5,000.00 sought by Sun Gro are fair and reasonable amounts that Co-operators could expect to pay for costs in all of the circumstances of the motion.
[25] Order to go as follows:
On an unopposed basis, the non-parties, ART Farms, OFD and Impens shall produce all documents in their possession relating to their business dealings with Sun Gro from the period January 1, 2018 to June 30, 2018, including but not limited to all books, accounts, invoices, contracts, letters, statements, records, bills, notes, e-mails and correspondence.
The motion for an order that the non-party OPP produce its file relating to the charges laid against Montaleone, Daher and Simonelli in connection with Project Hobart is dismissed.
The motion for an order in the alternative staying the action is dismissed.
Costs of the motion are fixed in the all-inclusive sum of $2,250.00 payable to the Attorney General of Ontario and fixed in the all-inclusive sum of $5,000.00 payable to Sun Gro, both amounts payable by Co-operators within 30 days.
Master B. McAfee
Date: August 23, 2021