COURT FILE NOs.: CV-18-00608051-CL and CV-19-614180-00CL DATE: 20220218 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDREW STRONACH Plaintiff (Responding Party) – and – BELNDA STRONACH, NICOLE WALKER, FRANK WALKER and ALON OSSIP in their capacities as Trustees of the Andrew Stronach 445 Family Trust; BELINDA STRONACH and ALON OSSIP in their capacities as Trustees of the 445327 Trust; BELNDA STRONACH, NICOLE WALKER and FRANK WALKER in their capacities as Trustees of the Stroand 2011 Trust; BELINDA STRONACH in her capacity as Trustee of the Belinda Stronach 2011 Family Trust; BELINDA STRONACH in her capacity as Trustee of the BSFIN Investments Trust – 2011; BELINDA STRONACH in her capacity as Trustee of the Adena North Trust; NICOLE WALKER and FRANK WALKER in their capacities as Trustees for the Andrew Stronach Special Trust; BELINDA STRONACH, NICOLE WALKER and FRANK WALKER in their capacities as Trustees for the Andrew Stronach 2011 Trust; BELINDA STRONACH, NICOLE WALKER and FRANK WALKER in their capacities as Trustees for the Belinda Stronach 2011 Trust; BELINDA STRONACH, NICOLE WALKER and FRANK WALKER in their capacities as Trustees for the Elfriede Stronach 2011 Trust; BELINDA STRONACH in her capacities as Trustee of the Andrew Stronach Family Trust – 2015; BELINDA STRONACH, NICOLE WALKER and FRANK WALKER in their capacities as Trustees of the Belinda Stronach 445 Family Trust; 2305218 ONTARIO INC. in its capacity as Trustee of the Woodington Trust – 2011; BELINDA STRONACH, NICOLE WALKER and FRANK WALKER in their capacities as Trustees of the ST Trust; BELINDA STRONACH, ALAN OSSIP, FRANK WALKER and NICOLE WALKER in their personal capacities and STRONACH CONSULTING CORP. Defendants (Moving Parties)

AND BETWEEN

Danielle Robitaille, Marie Henein and Alex Smith, for the Plaintiff Andrew Stronach Michael Barrack, Iris Fischer, Jessica Lam, Stefani Connelly, Anna Christiansen and Peter Howard, for the Defendant Belinda Stronach Alan Mark, Melanie Ouanounou and Mark Leonard, for the Defendants Frank Walker and Nicole Walker Mark Gelowitz, Craig Lockwood and Simon Cameron, for the Defendant Alon Ossip Linda Plumpton, Gillian Dingle, Davida Shiff, Stacey Reisman and Rachel Saab, for the Defendant Stronach Consulting Corp.

SELENA STRONACH Plaintiff (Responding Party) – and – BELINDA STRONACH, NICOLE WALKER, FRANK WALKER, ELFRIEDE STRONACH and ALON OSSIP in their capacities as Trustees of the Andrew Stronach 445 Family Trust; BELINDA STRONACH, ELFRIEDE STRONACH and ALON OSSIP in their capacities as Trustees of the 445327 Trust; BELNDA STRONACH, FRANK WALKER, ELFRIED STRONACH and NICOLE WALKER in their capacities as Trustees of the Strosel 2011 Trust; BELINDA STRONACH, FRRANK WALKER, ELFRIEDE STRONACH and NICLOLE WALKER in their capacities as Trustee of the Stroand 2011 Trust; BELINDA STRONACH in her capacity as Trustee of the BSFIN Investments Trust; 2305218 ONTARIO INC. in its capacity as Trustee for the Woodington Trust; BELINDA STRONACH and ELFRIEDE STRONACH in their capacities as Trustees of the Adena North Trust; FRANK WALKER, ELFRIEDE STRONACH and NICOLE WALKER in their capacities as Trustees for the Andrew Stronach Family Trust; BELINDA STRONACH, ELFRIEDE STRONACH, FRANK WALKER and NICOLE WALKER in their capacities as Trustees for the Andrew Stronach 2011 Trust; BELINDA STRONACH, NICOLE WALKER and FRANK WALKER in their capacities as Trustees of the ST Trust; BELINDA STRONACH, ELFRIEDE STRONACH, FRANK WALKER and NICOLE WALKER in their personal capacities Defendants (Moving Parties)

Matthew Gottlieb, Shaun Laubman, Philip Underwood and Cole Pizzo, for the Plaintiff Selena Stronach Michael Barrack, Iris Fischer, Jessica Lam, Stefani Connelly, Anna Christiansen and Peter Howard, for the Defendant Belinda Stronach Alan Mark, Melanie Ouanounou and Mark Leonard, for the Defendants Frank Walker and Nicole Walker Mark Gelowitz, Craig Lockwood and Simon Cameron, for the Defendant Alon Ossip Nina Bombier, for the Defendant Elfriede Stronach

HEARD: December 13, 2021

REASONS FOR DECISION

MCEWEN, J.

[1] The Defendants in both actions bring motions seeking orders to compel the Plaintiff Andrew Stronach (“Andrew”) and his daughter Selena Stronach (“Selena”) (collectively, the “Plaintiffs”) to undergo medical examinations to assess their mental capacities (the “Medical Examinations”) pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). The purpose of the Medical Examinations is to provide evidence to the Court as to whether the Plaintiffs are persons under disability for whom litigation guardians are required. In support of their motions, the Defendants rely solely on the examination for discovery transcripts of Andrew and Selena.

[2] Prior to the proposed Medical Examinations, the Defendants also seek production of various medical reports prepared by health practitioners and the hospital records of the Plaintiffs with respect to any issues concerning mental illness, mental disability or mental capacity. Further, the Defendants also seek a preliminary order directing that the court reporter, Arbitration Place, release the video recordings of the examination for discovery of Andrew conducted on October 7, 8, and 15, 2021 to the Defendants and to this Court for use as evidence on their motion vis-à-vis Andrew.

[3] For the reasons below, the Defendants’ motion against Selena is dismissed and the Defendants’ motion against Andrew is dismissed on a without prejudice basis.

BACKGROUND

[4] These two actions involve a number of significant and complicated issues of corporate and and trust law arising out of extremely complex legal structures that were created by the Stronach family concerning their substantial family wealth.

[5] Overall, the Stronach family’s wealth is held in a complex network of over 260 corporate and trust entities.

[6] These actions are the remaining two matters related to disputes within the Stronach family. The other action involved Frank Stronach (“Mr. Stronach”) and Elfriede Stronach (“Ms. Stronach”) as Plaintiffs. Mr. and Ms. Stronach are the mother and father of Andrew and his sister Belinda Stronach (“Belinda”) and the grandparents of Selena. That action has now been resolved. While the parties attempted to settle all three actions (the “Omnibus Settlement”), the actions brought by Andrew and Selena ultimately were not resolved.

[7] Generally speaking, these two actions involve a dispute pitting the Plaintiffs against the Defendants concerning control of certain Stronach corporations, trusts and wealth. Further, subsequent to the settlement of the action between the Defendants and Mr./Ms. Stronach, the Plaintiffs amended their pleadings to raise a number of new allegations against the Defendants including allegations that the Defendants breached their fiduciary duties as trustees of trusts established for the Plaintiffs in connection with the settlement.

[8] Undoubtedly both actions are factually and legally complex. The Plaintiffs, amongst other things, impugn the management of the network of corporate and trust entities and the division of ownership interest in assets held by the Stronach family managed by various of the Defendants primarily Belinda, her children Nicole Walker (“Nicole”) and Frank Walker (“Frank”), and Alon Ossip (“Ossip”), a former officer and CEO of certain Stronach entities and current Trustee of various Stronach family trusts.

THE PRELIMINARY ISSUES

[9] As noted, in advance of the ultimate ruling concerning the Medical Examinations, the Defendants submit that I should review the three days of video recordings of Andrew’s examination for discovery. They submit that Andrew’s demeanor, while providing evidence, can provide the evidentiary basis for an order for a medical examination under s. 105 of the CJA and that the video recordings constitute highly relevant and probative evidence for this motion and for a potential future motion to appoint litigation guardians.

[10] For these reasons the Defendants request that the video recordings be produced to them and to this Court for use as evidence on these motions.

[11] Andrew objects to the production of the video recordings. He submits that r. 34.19(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that an examination for discovery may only be recorded “on the consent of the parties or by order of the Court.” Insofar as Andrew’s examination for discovery is concerned, however, his counsel only consented to the recordings being made for the limited purpose of assisting the court reporter in preparing the transcript of the examination and on the express condition that they would be thereafter destroyed. The Defendants do not dispute this contention.

[12] In these circumstances, Andrew submits that it constitutes sharp practice for the Defendants to now seek production of the video recordings.

[13] Further, Andrew submits that the Defendants do not point to any specific instances in the video recordings that may provide evidence that the transcript does not already record. Last, in order to fairly assess Andrew’s demeanor, he submits that this would require me to watch three days’ worth of discovery which is not in the best interests of justice given that the Defendants have not specifically explained how the video recordings have any probative value.

[14] If the video recordings are to be provided, Andrew submits that his solicitors ought to be afforded the opportunity to provide a confidential affidavit to the Court, under seal, outlining what steps they have taken to satisfy themselves as to their client’s capacity: see Sylvester v. Britton, 2018 ONSC 6620, at para. 76.

[15] I am not prepared to order production of the video recordings. Accordingly, it is unnecessary to consider the appropriateness of Andrew’s counsel providing confidential affidavit evidence.

[16] First, I agree with Andrew that where the video recordings were only created for a limited purpose it would be unfair to now order production. Had Andrew known that this would ultimately be requested of this Court, there is little or no doubt that he would not have consented to the video recordings in the first place.

[17] Second, I believe it is a dubious proposition to have a judge of this Court, without supporting evidence, such as affidavit evidence of parties or expert evidence, review the video recording of an examination for discovery of a party and make findings of capacity based on demeanor. In this case, it would have me watching three days of evidence and be tasked with the responsibility of essentially charting behaviour, and specifically what behaviour supports the Defendants’ position or Andrew’s position. I am not prepared to do so in circumstances where a transcript has been provided and I have reviewed the transcript.

[18] Last, with respect to the other preliminary issue concerning the production of medical reports and hospital records, I decline to do so since I have dismissed the Defendants’ motions for the reasons that follow.

THE LAW CONCERNING MEDICAL EXAMINATIONS

[19] The Defendants rely upon s. 105 of the CJA which provides, in part, as follows:

(1) “Health practitioner” defined – In this section, “health practitioner” means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction. 1998, c. 18, Sch. G. s. 48.

(2) Order for physical or mental examination – Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe there is substance to the allegation.

[20] The dispute between the Defendants and the Plaintiffs on these motions essentially involves three issues:

• Whether this Court has jurisdiction to order the medical examinations sought under s. 105(3) to determine whether Andrew and Selena are parties under disability and therefore need litigation guardians since s. 105(3) stipulates that an order shall not be made “unless the allegation is relevant to a material issue in the proceeding…” and the Plaintiffs have not put their mental health in issue in their pleadings (nor for that matter have the Defendants).
• Putting the issue of jurisdiction aside, can s. 105(3) be utilized in cases such as this where the Defendants are seeking to compel the Plaintiffs to undergo Medical Examinations in circumstances where the Plaintiffs’ mental health has not been raised in the pleadings, but rather in circumstances where the Defendants seek the Medical Examinations to determine whether the Plaintiffs are persons under disability for whom litigation guardians are required. Here the Plaintiffs submit that s. 105(3) is not engaged since s. 105(3) expressly provides that an order shall not be made “unless the allegation is relevant to a material issue in the proceeding…” and the lack of a pleading in this regard is fatal to the Defendants’ position.
• Last, if the Court can make such an order under s. 105(3) in these circumstances, what is the legal criteria.

[21] I will generally discuss these issues below.

The Defendants’ Position

[22] The Defendants rely on case law that has held that s. 105(3) can be used to order a party to attend a medical examination in order to provide evidence to the Court as to whether the party is a person under disability for whom a litigation guardian is required: see Twain v. North Bay (City), 2009 ONSC 1700; Rishi v. Kakoutis, 2011 ONSC 7184; and 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114, 116 O.R. (3d) 202.

[23] The Defendants submit that, according to the case law above and the wording of s. 105(3), the party bringing a motion to compel the other party to undergo a medical examination under s. 105(3), must demonstrate that:

a. the allegation concerning the other party’s mental condition is relevant to a material issue in the proceeding; and

b. there is good reason to believe that there is substance to the allegation.

[24] Relying upon Rishi they further submit that the question of whether a litigation guardian should be appointed is, by its very nature, “a material issue in a proceeding” as required by s. 105(3) of the CJA. They also submit that they only need to demonstrate that there is a “good reason” to believe that there is substance to the allegation that the Plaintiffs are parties under disability. In this case, the good reason being the Plaintiffs’ evidence and demeanour at their respective examinations for discovery.

The Plaintiffs’ Position

[25] The Plaintiffs disagree with the Defendants, but as between themselves in slightly varying ways.

[26] Selena submits the question of her mental capacity is not a material issue in the proceeding as her mental condition is not mentioned anywhere in the pleadings and is therefore not relevant to any issue in the litigation; therefore, s. 105(3) is not engaged. Selena also disagrees that merely raising the assertion that the question of whether a litigation guardian should be appointed satisfies the material issue element. Selena cites Toronto Standard Condominium Corporation No. 2395 v. Wong, 2016 ONSC 8000, [2016] O.J. No. 6742, at para 22, where Akbarali J., in declining to follow the decision in Rishi, held that a medical examination could not be ordered simply because it was relevant to a material issue in the proceeding, namely whether a litigation guardian should be appointed. She added that it would be ‘circular’ to allow the requirement under s. 105(3) to be satisfied whenever a litigation guardian was sought and that doing so would, moreover, materially lower the standard for what ought to be extraordinary relief. Selena further argues that even if questioning her mental condition satisfied the material issue requirement, the bar is high for the Court to order a medical examination as the request is highly intrusive and should only be used in exceptional circumstances: see Kagan, at para. 40; Toronto Standard Condominium Corporation, at para. 19.

[27] Selena also challenges the Defendants’ claim that they have established that there is “good reason” to believe there is substance to the allegation, as the evidence given and her demeanour at her discovery is insufficient: see Toronto Standard Condominium Corporation, at para. 23. She submits that there is a legal presumption of capacity and there must be “compelling evidence”, such as affidavit evidence from people who know her personally or professionally, to rebut the presumption, which the Defendants have failed to provide. In this regard Selena submits that merely relying upon her examination for discovery transcript is insufficient and the strong presumption of capacity is buttressed by the fact she is represented by highly experienced counsel.

[28] Andrew agrees with Selena’s submissions. Andrew goes somewhat further, however, and frames the applicability of s. 105(3) as a jurisdictional issue. He relies on Ocean v. Economical Mutual Insurance Co., 2009 NSCA 81, 281 N.S.R. (2d) 201; Neill v. Pellolio, to challenge the jurisdiction of the Court to make an order compelling a medical examination under s. 105(3). In Ocean, the Nova Scotia Court of Appeal held that the Court does not have jurisdiction to compel medical examinations sought for the purposes of a motion concerning the appointment of a litigation guardian. It reasoned that a Court has jurisdiction to compel medical examinations only if the party’s mental competency must be established in order to prove the cause of action or defence. In Neill, the Ontario Court of Appeal held, on the facts of that case, that the Court did not have jurisdiction to order a capacity assessment under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”).

[29] Since Andrew’s mental capacity is not a material issue in the action, Andrew submits that the Court does not have jurisdiction to order a Medical Examination. However, Andrew concedes that the Court does have inherent jurisdiction to compel the Medical Examinations, but also notes that the bar for exercising this discretionary jurisdiction is high.

[30] Citing the decision in Ziebenhaus (Litigation Guardian of) v. Bahlieda, 2015 ONCA 471, 126 O.R. (3d) 541, Andrew submits that the Court should exercise its inherent jurisdiction “sparingly and only in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness”: at para. 13. Andrew argues that the Defendants have not met this high threshold.

Analysis

[31] Generally speaking, the divide in the case law arises from the wording in s. 105(3). It specifically deals with the wording that states that where a party’s physical or mental condition is raised by another party, “an order shall not be made unless the allegation is relevant to a material issue in the proceeding…” (emphasis added).

[32] This Court has confirmed its jurisdiction under s. 105(3) to compel a party to undergo a medical examination for the purpose of deciding whether the party is a person under disability for whom a litigation guardian is required: see Kagan, at para. 41; Toronto Standard Condominium Corporation, at para. 19. However, the case law also cautions against the use of s. 105(3) as a tactical means and has consistently held that its use “should be the rare exception and not the rule”: see Kagan, at para. 40; Toronto Standard Condominium Corporation, at para. 19. In Kagan, Stinson J. also noted the safeguards under s. 105(3), which “prevent a court from ordering a party to undergo a mental examination merely because the other party has raised it as an issue.” Stinson J. further held that “[w]here the question is first raised by another party, an order cannot be made unless the allegation is relevant to a material issue and there is evidence to support it”: at para. 35.

[33] While Andrew cites Ocean and Neill as authority that this Court lacks jurisdiction to order the Medical Examinations as he has not made his mental capacity an issue in the action, I am of the view that both of those decisions are distinguishable. Ocean dealt with Rule 22 of the Nova Scotia Civil Procedure Rules(1972) which contains different wording. Understandably, based on the wording of Rule 22, the Nova Scotia Court of Appeal came to the conclusion that the rule cannot be used for the purposes of a motion concerning the appointment of a litigation guardian. In this regard, Rule 22.01(1) specifically states that a Court may only order medical examinations where the “physical or mental condition of a party is in issue.” This wording is materially different from s. 105(3) which does not contain such restrictive wording. In Neill the Ontario Court of Appeal was dealing with the SDA in circumstances much different than those in this case. First, in Neill the applicant was not involved in litigation with a respondent and the relevant provisions of the SDA are different than the relevant provisions of the CJA.

[34] In light of these distinguishing features and the Ontario authority directly on point, I believe that s. 105(3) provides this Court with authority to compel a party to undergo a Medical Examination for the purpose of deciding whether the party is a person under disability for whom a litigation guardian is required.

[35] Even if I do not have jurisdiction to make the order under s. 105(3), the Court is able to exercise its inherent jurisdiction to make such an order, which Andrew concedes: see Ziebenhaus.

[36] Whether it is under s. 105(3) or its inherent jurisdiction, I am of the view that exercising the Court’s discretion to order a party to undergo a medical examination should be used sparingly and as a rare exception: see Ziebenhaus, at para. 13; Toronto Standard Condominium Corporation, at para. 19, 22; and Kagan, at para 40. I further agree with the case law that medical examinations are discretionary and should only be granted in clear cases to ensure justice and fairness.

[37] While the Court in Kagan notes that the order should not be granted without “good reason”, what constitutes a “good reason” has to be based on evidence beyond simply pointing to the plaintiffs’ behaviour: see Toronto Standard Condominium Corporation, at para. 23. Further, consideration must be given to the autonomy of the individual given the intrusive nature of a medical examination. It is also clear from the case law that an adult person is presumed to be competent to manage their own affairs and a medical examination is an extraordinary step that should only be used in the clearest of cases where it is necessary to control the Court’s process: see Ocean, at paras. 81, 99; Kagan, at para. 40.

[38] While this Court has jurisdiction to compel the Medical Examinations sought under s. 105(3) or alternatively as an exercise of its inherent jurisdiction, as I will discuss below, the Defendants have failed to establish that the Plaintiffs’ mental capacity is a material issue in the proceeding and that there is good reason to substantiate the allegation.

[39] Having accepted the foregoing principles, I will now move on to analyze the Defendants’ request that the Plaintiffs undergo Medical Examinations. I will begin with Selena since the motion concerning her is less complex than the motion involving Andrew.

PROPOSED MEDICAL EXAMINATION OF SELENA

The Defendants’ Position

[40] The Defendants submit that Selena’s examination for discovery evidence demonstrates an overwhelming inability to appreciate, articulate and understand the most basic facts and issues in the litigation as well as the relief she is seeking.

[41] They note that with respect to at least 90 questions she was asked, Selena responded with an answer of, “I don’t recall right now.” In addition to this answer, which the Defendants describe as “formulaic”, they also submit that she lacks the understanding of the most basic elements of her claim including exactly what the Defendants did that might give rise to legal liability.

[42] By way of examples they point to, amongst other things, the following:

• She does not understand that she has a percentage beneficial interest in the Stronach family companies.
• She does not know she receives money from the Stronach family trust.
• She does not know if she has received money from the Stronach family trust in the past two years.
• She cannot articulate what Belinda did wrong prior to Selena’s meeting with counsel and commencing her claim.
• She does not recall what caused her to commence her claim or what relief she is seeking.
• She does not know what her complaints are surrounding the trust reorganizations and what the Defendants did inappropriately in this regard.
• She does not understand what it means to be a beneficiary of the trust or the roles and responsibilities of a trustee or what fiduciary duties consist of.
• She does not know if Frank or Nicole did anything improper with respect to the settlement transaction.
• She cannot articulate her complaints of a personal nature against Belinda and the Defendants with respect to renovations in her farm and restrictions to her movements.
• She testified at her examination for discovery that she did not want to be bought out of her interest in the family business but her pleading explicitly seeks an order in this regard.

[43] Generally speaking, given the above and other answers given by Selena, the Defendants submit that they do not know what claim they have to meet. As a result of the foregoing, they seek the proposed Medical Examination.

Selena’s Position

[44] Selena opposes the relief sought by the Defendants.

[45] Selena points to the fact that she was 20 years old when examined and was a minor during the period when most of the events at issue in the litigation took place.

[46] She further points to the fact that much of the current rift between the Plaintiffs and the Defendants stems from the fact that there was a 2013 reorganization of the family trusts wherein Andrew’s family trust, of which Selena is a beneficiary, was diminished from 33.33% to 23.1%. Selena’s claim alleges that this reorganization was an improper breach of the trust and as a result, the trustees breached their fiduciary duties and were unjustly enriched. In this regard, Selena emphasizes that throughout this time frame she was a minor and obviously was not informed about the reorganization, nor does she have any knowledge surrounding its implementation.

[47] There are also other claims surrounding failure of the trustees to keep her informed and to consider her interests, as well as the proposed settlement to which she objects.

[48] Based on Selena’s age, she submits it is not surprising that she does not have knowledge of the alleged wrongdoings. She submits that the focus of the litigation will be on the conduct of the Defendants, particularly Belinda, Nicole, Frank and Ossip, in their capacities as trustees and it is not surprising that Selena does not have knowledge of what transpired. In any event, Selena submits that the business dealings of the Stronach family are incredibly complex, involve dozens of entities and several millions of dollars. It is, therefore, not surprising that she is not well versed in the nuts and bolts of the structures and exactly what complaints she has. Selena particularly advances this argument given her age, education and the dates the key events transpired.

[49] Selena also points to the fact that there has been no affidavit evidence adduced to suggest she lacks capacity, nor has there been any medical evidence provided. Furthermore, she points to the fact that the Defendants never took the position prior to examination for discovery that she lacked capacity even though they have known her all her life. In this regard, Selena submits that, insofar as capacity is concerned, the Defendants had no difficulty trying to get her to enter into the Omnibus Settlement. It was only after the settlement failed that these allegations of incapacity have arisen.

[50] Selena also stresses that at their examinations for discovery, Belinda, Frank and Nicole did not raise any concerns about her capacity. While they described her as being shy, a little nervous and having struggles in school, no concerns were expressed concerning her mental capacity.

[51] Insofar as the examination for discovery is concerned, Selena points to the fact that six different lawyers examined her on behalf of the Defendants which produced a transcript of 545 pages involving 1,444 questions. She submits that it is therefore not surprising that based on all of the above, she did not have the ability to answer all questions, and it is not surprising that on approximately 90 occasions she did not recall an answer.

[52] Last, Selena submits that she is being criticized about being unable to answer questions while Frank was unable to answer approximately 130 questions during his single day examination for discovery.

[53] Overall, based on the foregoing, Selena submits that the Defendants’ motion is tactical and abusive.

Analysis

[54] As noted, I have dismissed the Defendants’ motion with respect to Selena.

[55] I generally accept her submissions with respect to the capacity issue.

[56] It is not surprising that Selena, who is currently 21 years of age, does not have information or a working knowledge of events that transpired when she was a minor concerning significant and complicated family holdings. It is understandable.

[57] Further, it is not surprising that as a young adult, with limited post-secondary education, Selena still does not understand the corporate structures given her lack of involvement with the businesses and her seemingly somewhat dysfunctional relationship with her extended family which has no doubt been exacerbated as a result of this litigation.

[58] It is also germane that there is no evidence from a medical or educational standpoint to suggest incapacity or the need for a Medical Examination. Nor is there any affidavit evidence or evidence of the transcript that would suggest incapacity. I find it difficult to accept that the familial Defendants had no concerns about her capacity in attempting to have Selena accept the Omnibus Settlement proposal but later only became aware of capacity issues as a result of her examination for discovery.

[59] It is also important to point out that all parties in this litigation, including Selena, are represented by very capable, experienced counsel. All of the case law referred to by the Defendants involves self-represented litigants. Given the focus of the litigation on the Defendants’ alleged misconduct, it does not strike me as being unfair to the Defendants that counsel provide some of the structure with respect to the complaints on Selena’s behalf.

[60] If problems arise with respect to the answering of undertakings and/or Selena’s reattendance and the Defendants continue to believe that they cannot obtain a proper understanding of the case they have to meet, this can be dealt with by way of a motion concerning the adequacy of answers provided by Selena or counsel. Based on Selena’s examination for discovery transcript, however, I find that the Defendants have failed to satisfy the necessary test previously set out in these reasons. The Defendants have failed to satisfy their onus that they require a Medical Examination to ensure justice and fairness. The transcript does not suggest that there is a good reason a Medical Examination should be ordered based on the above analysis of the case law at paras. 36-37.

PROPOSED MEDICAL EXAMINATION OF ANDREW

The Defendants’ Position

[61] Insofar as Andrew is concerned, the Defendants seem to express much more significant complaints.

[62] Andrew is a 53-year-old adult. Throughout the relevant time period he has lived with his parents Mr. and Ms. Stronach. He is a self-styled farmer, but he has an extensive history of working within the family related horse racing and breeding industry as well as operating a high-end cattle business.

[63] The Defendants generally have two concerns concerning Andrew’s testimony.

[64] First, they are concerned with his inability to understand basic facts, issues and allegations including his lack of knowledge concerning the 2013 reorganization of the family trusts; that he did not know his own trust was an integral part of his claim when the claim was commenced; that he had not reviewed the material documentation in this litigation; that he did not understand the duties of trustees; and did not understand the relief he was seeking or the range of damages.

[65] Second, the Defendants raise concerns about many of the answers that Andrew gave at his examination for discovery that they say demonstrate that Andrew is emotive, easily confused, unable to remain focused and exhibits a persistent fixation on irrelevant minutiae. The Defendants referred me to a number of incidents in the transcript where Andrew was asked questions about his allegations and responded with lengthy, irrelevant anecdotes that were at times nonsensical and emotional. These included long-winded non-responsive answers on irrelevant family affairs, the alleged killing of horses, references to the “Mexican mafia”, irrelevant family grievances that did not concern matters relevant to the lawsuit, and other rambling answers which included, the Defendants submit, personal attacks on counsel.

[66] The Defendants also submit that there is nothing nefarious or improper about their raising concerns about capacity at a late date. They submit that it was not until Andrew’s examination for discovery evidence that they knew or could have known that he lacked the capacity to pursue his claim and instruct counsel. They also submit that the fact that Andrew has experienced, capable counsel is irrelevant since counsel cannot opine on capacity and that the Defendants should not have to understand the case they have to meet by way of an undertaking fulfilled by Andrew’s counsel. Rather, the Defendants submit that they have the right to understand Andrew’s case from his own evidence.

[67] Based on the above, they submit that a Medical Examination is warranted to deal with the issue of capacity.

Andrew’s Position

[68] Andrew generally adopts Selena’s submissions. Andrew, as Selena did, submits that there is no affidavit evidence or medical evidence or examination for discovery evidence that supports the Defendants’ position on this motion. Similarly, he submits that prior to his examination for discovery, the Defendants, which consist primarily of his own family, never raised capacity issues. He also points out that the Defendants sought to have him approve the Omnibus Settlement and did not raise any issues concerning capacity at that time.

[69] Andrew also points to the fact that the action that he has commenced is incredibly factually and legally complex. He therefore submits that it is not surprising that, since he has not been as intimately involved in the Stronach businesses, he does not possess certain information concerning the businesses. In this regard, Andrew particularly stresses that the focus of the litigation is the Defendants’ actions and not his own. Andrew further submits he has never claimed to be any sort of expert in trust law, but he has always lived an independent life where he has conducted or directed his own affairs with the assistance of experts, which now include experienced trial counsel.

[70] Andrew also submits that in both Belinda and Nicole’s examinations for discovery, they were specifically asked questions about his capacity. Neither of them testified that he lacked capacity.

[71] Insofar as Andrew’s own examination for discovery is concerned, he submits that it is profoundly unfair to impugn his capacity on the basis of the answers he has given in a situation where the examinations for discovery were emotional, stressful and adversarial.

[72] Andrew also argues that many of the questions that were posed to him were vague, open-ended and poorly worded. Andrew points to a number of questions which included questions such as:

• “Why are you suing your sister?”
• “How much are you suing them for?”
• “What did you believe Nicole and Frank have done wrong as Trustees?”
• “How did Alon mismanage TSG?”
• “Why are you suing Alon Ossip?”

[73] Andrew further points to a number of answers that he gave that he submits demonstrates that he does understand the general nature of his claim, which is primarily that his interest in the family business was reduced from 33.3% to 23.1% as a result of the 2013 reorganization of the family trusts. His interest was later diluted to the detriment of both him and Selena.

[74] Overall, while Andrew concedes that his answers on occasion have been nonresponsive and at times emotional, the examination for discovery evidence does not come close to demonstrating that a Medical Examination is warranted for the purposes of a contemplative motion to appoint a litigation guardian.

Analysis

[75] The analysis of the motion concerning Andrew is more complex and has led me to the conclusion that the motion should be dismissed – but on a without prejudice basis to the Defendants’ right to again bring the motion.

[76] Unlike Selena, all of the alleged impugned actions took place while Andrew was an adult. Additionally, he has been involved in a number of a broad ranging business activities. Further, in addition to some of his answers being nonresponsive or demonstrating a failure to grasp the issues in the lawsuit, others were bizarre and demonstrated an unwillingness, inability or necessary discipline to answer the questions posed.

[77] I find, however, at this juncture that a review of Andrew’s examination for discovery transcript does not demonstrate that an order for a Medical Examination ought to be granted based on my legal analysis above. While undoubtedly many of his answers are troubling, I do not see good reason to grant the order or that it is necessary to ensure fairness. Andrew was able to answer several of the questions including those involving his most significant complaint i.e. the diminishment of his interest in the family business.

[78] The motion is also premature. Instead of the Defendants moving straight to seeking a Medical Examination, they ought to have first obtained the answers to the numerous undertakings and then attempted to reengage Andrew to determine whether, with the benefit of the undertakings and a closer review of the documents, he could provide cogent and relevant evidence. Alternatively, the Defendants could have brought a motion to compel him to answer questions that they felt Andrew had failed to properly answer.

[79] I pause here to comment upon how Andrew’s examination for discovery was conducted.

[80] First, I agree with Andrew that a number of the questions posed to him were vague, should have been posed in a more focused manner and on occasion touched upon irrelevant considerations. At the same time, however, issues concerning the appropriateness of the questions posed to Andrew should have been addressed by Andrew’s counsel as opposed to having Andrew answer these questions which, at times, led to the aforementioned rambling non-responsive answers. Further, Andrew, as a presumed capable adult and one who takes the position that he is capable, ought to have exercised better self-discipline and made efforts to answer relevant questions that were put to him or asked for clarification.

[81] Unfortunately, this did not always take place. It is now incumbent upon counsel to liaise and determine the best next steps as to how Andrew’s examination for discovery should move forward once the undertakings and questions taken under advisement and refusals are dealt with. Further case management will likely be necessary.

[82] Afterwards, next steps can be determined. If Andrew is to reattend, and this will likely be the case, it will be incumbent upon him to inform himself, review all relevant documents and provide responsive answers to the questions posed to him.

[83] If at that time the Defendants are of the view that there are still capacity issues, they may return to the Court seeking an order for a Medical Examination.

Disposition

[84] For the reasons above, the Defendants’ motion against Selena is dismissed. The Defendants’ motion against Andrew is dismissed on a without prejudice basis.

[85] If the parties cannot agree as to the issue of costs, they may arrange for a 30 minute case conference before me through the Commercial List Office.

McEwen, J. Released: February 18, 2022