Court File and Parties

Court File No.: 1870/16 Date: 2021-09-27 Superior Court of Justice - Ontario

Re: Great West Life Assurance Company, Plaintiff And: Orthohealth Solutions Inc., Basdeo Ballie, Bryan Ballie, et al., Defendants

Before: George J.

Counsel: Scott McTaggart, for the Plaintiff Damien Frost, for the Defendants Gordon Jermane, for non-party Manufacturer’s Life Insurance Company

Heard: September 24, 2021

Endorsement

[1] This is the Plaintiff’s motion, which seeks the following relief:

i) an order that London Actions 1870/16 and 1531/18 be consolidated, with it then bearing court file #1870/16,

ii) that the examination for discovery of those defendants common to the London Action and Toronto Action 574769/17 (Orthohealth Solutions Inc, Basdeo Ballie and Ram Villardo) be joint examinations with counsel for the plaintiffs in the London Action and Toronto Action permitted to attend and examine them,

iii) that the examinations for discovery of those defendants not common to the London Action and Toronto Action (Jasmine Ballie, Bryan Ballie and Trend Orthotic Lab Inc.) be conducted by counsel for the Plaintiff in the London Action with counsel for the Plaintiff in the Toronto Action permitted to attend,

iv) that the Affidavits of Documents of all defendants in both the London Action and Toronto Action be provided to counsel for the plaintiffs in both actions,

v) that the Affidavits of Documents of the plaintiffs in both the London Action and Toronto Action be provided to all defendants in both actions,

vi) that information and evidence obtained under rr. 30, 31 and 32 in either the London Action or Toronto Action, including information and evidence obtained pursuant to paras. 3, 4, 5 and 6 of this order, may be used for the purposes of both the London Action and Toronto Action,

vii) an order that the trials in the London Action (File #1870/16), as consolidated, and Toronto Action (File #574769/17) be heard at the same time or one after the other, or in such manner as the trial judge directs, and

viii) an order that the London Action (File #1870/16), as consolidated, be transferred to Toronto.

[2] Counsel for the Plaintiff in Toronto Action (Court File #574769/17), Manulife, participated at this motion. Manulife consents to the relief sought.

[3] This motion was heard immediately following two others in London (court file #1124/16). These are tangentially related, with a common Plaintiff, and similar allegations arising from what Plaintiff counsel called a luxury goods scam. These two endorsements, while separate, are being released to counsel simultaneously.

[4] At the hearing’s outset I indicated to counsel that I had no authority to order a transfer of the London Action to Toronto. In accordance with the Consolidated Practice Direction counsel were advised to direct their request to the Regional Senior Justice in Toronto. As a practical matter, since only Toronto’s RSJ can permit a transfer to Toronto, it only makes sense that the issue of whether to have the London and Toronto Actions heard together, or one after the other, be heard there as well. While I am not addressing it today, I note that the Defendant, when the time comes, will not oppose the Plaintiff’s transfer request nor will it oppose an order directing that the consolidated London Action be heard immediately following the Toronto Action, or in whatever manner the trial judge may direct.

[5] Furthermore, there is no opposition to a consolidation of the London matters. As such, an order will issue on the terms set out in paras. 1 and 2 of the Notice of Motion.

[6] With respect to the balance of relief sought, the Plaintiff argues that the two London Actions (now consolidated) and Toronto Action have questions of law and fact in common. Its counsel submits that the Plaintiffs in these proceedings (Great West Life and Manulife) have claimed relief out of a series of similar, if not identical, transactions, and that the most efficient way forward is to proceed as he proposes.

[7] The Defendants oppose an order that would allow for any joint discovery examinations (whether the defendants are common or not). They also oppose the request to have the Affidavits of Documents of all defendants (in both the London and Toronto Actions) be provided to counsel for the plaintiffs (in both). Put simply, they rely upon the deemed undertaking rule prescribed by r. 31.1.01 of the Rules of Civil Procedure; meaning, they oppose an order that would allow the information and evidence obtained under rr. 30, 31 and 32 - in either the London or Toronto Action - to be used in both.

[8] Defendant counsel opposes this relief, for these reasons:

i) there are two distinct plaintiffs (represented by separate counsel);

ii) three of the six defendants are not common;

iii) there is no overlap of witnesses for the two plaintiffs;

iv) the documentary evidence of each plaintiff relate to separate and distinct transactions; and

v) the defendants not common to both actions would not have any evidence to provide in relation to the other.

[9] Again, as Affidavits of Documents have been exchanged in both actions, Defendant counsel relies upon the deemed undertaking rule, pointing out that the documents referred to in the plaintiffs’ Affidavits have been provided to the Defendants and that they, at least according to him, differ. He also points out that the documents relied upon by each of the plaintiffs relate to different transactions and is of the view that these transactions are not relevant nor admissible in both Actions. Defendant counsel summarizes his position at para. 15 of his factum:

There is no overlap in relation to the transactions relied upon by the two Plaintiffs. There is no overlap with respect to the investigations conducted by the Plaintiffs. The investigations were conducted by separate investigators and in relation to separate transactions. There are no specific fraudulent transactions plead in relation to the years 2005 through 2013 in support of what are multi-million-dollar damages and alleged common and interwoven issues of fact.

[10] The bottom line position for the Defendants is twofold. First, they argue that the Toronto and London matters are separate and distinct and, therefore, the relief sought should be denied. Second, while not expressly stated in this way, they, alternatively, seem to suggest that if I am not in a position to order a transfer, or consolidate the London and Toronto matters (or direct that they be heard one after the other) - which I am not - then I should not be weighing in on the efficacy of joint examinations and/or waiving, in the face of opposition, the deemed undertaking rule which requires parties and their counsel to not use evidence or information obtained in a proceeding for any other purpose. The deemed undertaking rule, I note, applies to all evidence obtained under r. 30 (documentary discovery), r. 31 (examination for discovery), r. 32 (inspection of property), r. 33 (medical examination), r. 35 (examination for discovery by written question), and any information obtained from evidence referred to in any of these rules.

[11] The real question is, should I exercise my discretion and relieve against the deemed undertaking rule pursuant to r. 30.1.01(8)? This rule provides that:

If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.

[12] Defendant counsel says that there is no overlap of evidence and witnesses. He also draws a distinction between the risk of inconsistent findings of fact on the one hand, and two courts making different findings of fact on the other. In other words, if the facts are different then it makes sense that there would be different findings. That does not make them inconsistent which, he argues, more accurately describes what might occur here, which isn’t a risk at all.

[13] Having carefully considered the submissions of counsel, and notwithstanding the Defendant’s very well made objections, I find that the deemed undertaking rule should be waived and that the relief sought by the Plaintiff ought to be granted. I arrive at this conclusion for these reasons:

i) Both plaintiffs consent to the request;

ii) there are three common defendants;

iii) both the London Action (as consolidated) and Toronto Action arise out of benefit claim submissions made by these common defendants, amongst others, and submitted to, in the case of the London Action Great West Life, and in the case of the Toronto Action Manulife;

iv) the defendants in all of these actions are represented by the same counsel;

v) the allegations arising from each are, while not identical, related and similar;

vi) both actions have the same principle issue, that being whether the Defendants made misrepresentations to Manulife and Great West Life regarding the value, nature and quality of the goods that formed the basis of their claim submissions;

vii) Basdeo Ballie’s guilty plea to fraud under $5,000.00 in the related criminal proceeding, which stems in large measure from undercover investigations undertaken by Manulife and Great West Life;

viii) the restitution that formed part of Mr. Ballie’s sentence was ordered to be split equally between Manulife and Great West Life, which points to commonality;

ix) contrary to the Defendant’s stated position, I find that there is a significant overlap of evidence and witnesses;

x) the process that counsel for both Plaintiffs propose would, without question, be more efficient and would completely eliminate the risk of inconsistent evidence, and go a long way to protect against inconsistent findings;

xi) it would avoid a multiplicity of proceedings;

xii) there is no jury notice in any of the actions; and

xiii) all of them are at roughly the same stage (i.e. examinations for discovery have not been completed).

[14] I further find that the Defendants would not suffer any prejudice were this course followed, noting also that, while it is not my decision to make, it is difficult to see the request to transfer the London Action to Toronto, and to have them heard together or one after the other, being denied. Again, this is not my decision - and scheduling complications and resource issues (which I am not aware of) may be overriding factors - but the evidence clearly points to the balance of convenience favouring these matters all being heard in Toronto and being joined in some fashion pursuant to r. 6.

[15] In the result, after giving the applicable rules a large and liberal interpretation, and having concluded that the interests of justice require it, I grant the Plaintiff’s motion. An order is to issue on the terms set out in paras. 1 through 7 of the Notice of Motion. As indicated, the relief set out in paras. 8 and 9 will have to be considered by the RSJ in the Toronto Region.

[16] In the endorsement released at the same time as this (Court File #1124/16), I urged counsel to resolve the issue of costs. I do so here as well. In the event they cannot I invite brief written submissions, on the same deadlines and with the same restrictions as set out in para. 13 of the companion endorsement. There is no right of reply.

Justice Jonathon C. George

Date: September 27, 2021