COURT FILE NO.: CV-20-135

DATE: 20220607

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: F.K. Machinery Limited, Plaintiff

AND:

Exxonmobile Canada Products Ltd., Imperial Oil Limited, C & L Traders Inc., 1397663 Ontario Inc., Waryam M. Chaudhry and Robert (Bob) Clemmens

BEFORE: Justice C. Boswell

COUNSEL: Jennifer L. Siemon for the Plaintiff

Muhammad Zafar for the Defendants, C & L Traders Inc., 1397663 Ontario Inc., Waryam M. Chaudhry and Robert (Bob) Clemmens

HEARD: May 18, 2022

ENDORSEMENT on undertakings and refusals motions

[1] The plaintiff’s action is for damages for fraud and misappropriation. Exxonmobile and Imperial Oil have been let out of the lawsuit. The remaining defendants consist of a former employee of the plaintiff, Mr. Clemmens, and Mr. Chaudhry, who operates an Esso gas station in Bond Head through C & L Traders and the numbered company. I will refer to the latter three defendants as the “Chaudhry Defendants”.

[2] The plaintiff is a distributor of janitorial, safety, maintenance, repair and production supplies. It has a fleet of trucks that deliver its products to customers. Those trucks need fuel. The plaintiff has a commercial account with Esso. Its drivers are supplied with “Speedpass” fobs that allow touchless payment at Esso gas pumps. During the time period in question, 2011-2017, the pumps at the Bond Head Esso did not have Speedpass technology, so anyone purchasing fuel there with a Speedpass had to enter the store to use it.

[3] Mr. Clemmens was a driver of some 30 years seniority with the plaintiff. He is alleged to have participated in a fraudulent scheme with the Chaudhry defendants to misappropriate funds from the plaintiff. Specifically, it is alleged that he regularly purchased fuel from the Bond Head Esso and was, to his knowledge, regularly overcharged for that fuel. So much so, in fact, that according to the plaintiff’s calculations, it paid for some 98,000 litres of fuel it did not receive, between 2011 and 2017.

[4] The value of the fuel overcharged is said to be $135,000. This case would, accordingly, be subject to the Simplified Rules, but for the fact that the plaintiff has also sought $100,000 in punitive damages, pushing it just above the $200,000 Simplified Rules ceiling. The amount in issue remains relatively modest by today’s litigation standards and will be of significance in terms of fashioning a proportional disposition to some of the issues raised on the motions before the court.

[5] Examinations for discovery were conducted between August 17 and September 2, 2021. The plaintiff examined Waryam Chaudhry on behalf of the Chaudhry defendants. The Chaudhry Defendants examined the plaintiff’s president, John Byles, on behalf of the plaintiff.

[6] The examinations gave rise to numerous undertakings, refusals and questions taken under advisement on both sides. They also gave rise to competing allegations of improper and unprofessional conduct on the part of attending counsel.

[7] The plaintiff moves for an order compelling Mr. Chaudhry to provide answers to 18 undertakings, 6 refusals and 5 questions taken under advisement. Those latter 5 questions are deemed by r. 31.07(1)(b) of the Rules of Civil Procedure to be refusals because they were not answered within 60 days of being taken under advisement.

[8] The plaintiff seeks an order that Mr. Chaudhry re-attend to answer questions properly arising from any answers compelled by the court. In addition to examining Mr. Chaudhry on questions arising from any compelled answers, the plaintiff seeks to conduct a further examination of Mr. Chaudhry at large. To that end, the plaintiff seeks leave to conduct another two to three hours of examination over and above the six hours conducted thus far.

[9] The Chaudhry Defendants move for somewhat similar relief. They seek an order compelling Mr. Byles to provide answers to 4 undertakings, 4 questions taken under advisement and 31 refusals.

[10] The Chaudhry Defendants also want to conduct further examinations. But rather than continue to examine Mr. Byles, they seek to examine a second representative on behalf of the plaintiff – their chief financial officer Mike Palmer – on the basis that Mr. Byles lacked sufficient awareness of the live issues in the case to make his examination meaningful.

[11] This endorsement will proceed in three parts. In Part I, I will address the undertakings, refusals and questions taken under advisement by both sides. In Part II, I will address the plaintiff’s claim to have Mr. Chaudhry re-attend for further examination. Finally, in Part III, I will address the request of the Chaudhry Defendants for an opportunity to examine Mr. Palmer for discovery.

Part I: The Undertakings and Refusals

[12] For ease of reference, I have attached, as Appendix “A”, the Undertakings, Under Advisements and Refusals Chart relating to the plaintiff’s examination of Mr. Chaudhry. I have attached, as Appendix “B”, the Undertakings, Under Advisements and Refusals Chart relating to defence counsel’s examination of the plaintiff’s representative, Mr. Byles.

[13] On each of the attached charts, I have endorsed my ruling in relation to each impugned question.

[14] My rulings are informed by the following applicable principles:

(a) The Rules envision a broad scope for oral discovery. Rule 31.06 provides that a person examined for discovery is obliged to answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in an action;

(b) The modern trend is in the direction of complete discovery. See General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321, [1999] O.J. No. 3291 (C.A.) per Carthy J.A. at para. 25;

(d) Relevance does not exist in the abstract. It is about the relationship that an item of evidence has to one or more live issues in the case, as identified by the pleadings. See R. v. Wood, 2022 ONCA 87 at para. 60. Relevance is not a significant threshold. To be relevant, a document, or a question posed on examination for discovery must, as a matter of logic and human experience, make the existence of a fact in issue more or less likely. See R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709;

(e) The requirement to answer all relevant questions and produce all relevant documents is tempered only by sustainable claims of privilege and the overarching requirement of proportionality, having regard to the importance and complexity of the issues and the amount involved in the proceeding. See r. 1.04(1.1);

(f) Sometimes a party is asked a proper question during oral discovery and does not have the answer at his or her fingertips. In those circumstances, parties often undertake to make inquiries and to provide the answer in due course. An undertaking is in the nature of a promise. When an undertaking is given, the party is obliged to provide the answer; and,

(g) Sometimes an undertaking is made in the form of a promise to use one’s best efforts to locate a document or to obtain information. “Best efforts” is an objective standard. It is measured by what a reasonable person would, in all the prevailing circumstances, consider best efforts to be. See Linamar Transportation Ltd. v. Johnson, 2014 ONSC 4415 (Div. Ct.) at para. 15.

[15] In a number of instances, one or the other of the parties has refused to answer a question on the basis of an assertion of privilege. At times, solicitor client privilege is asserted. At other times, the assertion is one of litigation privilege. I will comment briefly about the differences between the two.

[16] Solicitor-client privilege protects the confidential relationship between a solicitor and his or her client. It arises where three conditions are satisfied: (1) the communication over which privilege is asserted must be a communication between lawyer and client; (2) which entails the seeking or giving of legal advice; and (3) which is intended to be confidential by the parties. See Solosky v. The Queen, 1979 9 (SCC), [1980] 1 S.C.R. 821.

[17] Unlike solicitor-client privilege, litigation privilege does not protect a relationship. Instead, it protects an area – a “zone of privacy” – necessary to foster the needs of the adversarial model of adjudication. See Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 34. It protects against the compulsory disclosure of communications and documents whose dominant purpose is preparation for litigation. See Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 1. The privilege applies only to communications made at a time when litigation was commenced or contemplated and where the dominant purpose of the communication (and not just a substantial purpose) was for use in, or advice concerning that litigation. See Blank, as above, at para. 60 and LCBO v. Lifford Wine Agencies, 2005 25179 (ON CA), [2005] O.J. No. 3042, at para. 74.

[18] Applying the above-noted principles to the undertakings, under-advisements and refusals set out on the attached charts, I came to the conclusions listed in those charts. By way of summary, I find that:

A. Mr. Chaudhry must answer the following questions:

(i) Question 288: To provide an updated Schedule “C” to his Affidavit of Documents;

(ii) Questions 268-269: To provide contact information for all employees working between February 2017 and September 2017, to the extent he has that information;

(iii) Question 534: To detail the efforts made to locate the name of the technician who advised them they need not keep records of fuel in their tanks;

(iv) Questions 563-565: To inquire of their territory manager about the prospect of obtaining “Retail Volume Book” records for pre-2015;

(v) Questions 573-574: To inquire of Esso why the document at Tab 2 of Mr. Chaudhry’s Supplemental Affidavit of Documents says “volume” at the top and “revenue” on the left;

(vi) Questions 601-606: To produce all tax returns, tax documentation and general ledgers for the number company for the years 2011 to 2017;

(vii) Questions 657-661: To ask his accountant what the entries of $40,000 in 2013 and $60,000 in 2012 marked “credit to update inventory” mean;

(viii) Questions 662-666: To clarify – does the entry “3000 sales” refer to gasoline and convenience store sales or just convenience store sales;

(ix) Questions 847-850: To ask his accountant to produce whatever receipts he may have associated with certain identified debit card purchases or cash advances;

(x) Questions 364-365: To produce any ancillary documentation in relation to the 2010 and 2018 Fuel Supply Agreements found at tabs 3 and 4 of Mr. Chaudhry’s Supplemental Affidavit of Documents;

(xi) Questions 722-731: To provide evidence of the dollar amount of diesel fuel sold monthly during the period February 2017 to September 2017;

(xii) Questions 732-733: To provide any evidence that reconciles the amount of fuel purchased and the amount of fuel sold in the period February 2017 to September 2017;

(xiii) Questions 684-698: To produce information supporting the recipient of a $20,000 consulting fee paid in 2015;

(xiv) Questions 470-484 and 536-550: To provide proof that the defendants have written to their fuel supplier to request any records the supplier has regarding fuel levels in the defendants’ tanks during the period February 2017 to September 2017;

(xv) Question 489: To provide a list of the names of anyone who measured fuel in the tanks between February 2017 and September 2017;

(xvi) Question 509: To provide records with respect to fuel sales between February 2017 and September 2017; and,

(xvii) Question 629: To provide the name of their accountant and his or her contact information.

B. Mr. Byles must answer the following questions:

(i) Question 644: If not already provided, the plaintiff is to provide a copy of any video surveillance from IRI;

(ii) Questions 282-287 and 290-295: To advise why Tammy Weeks left her employment with the plaintiff and when;

(iii) Question 366: To advise whether, as part of their investigation, the plaintiff had another driver drive the same route as Mr. Clemmens once drove, using the same truck Mr. Clemmens once used, in order to check the fuel consumption; and,

(iv) Question 600: To advise if Mike Palmer made any observations from which he inferred that Mr. Clemmens was aware that he was under surveillance.

[19] Each of Mr. Chaudhry and Mr. Byles is directed to answer the questions I have identified, in writing, within 60 days.

Part II: The Plaintiff’s Request for Further Examinations

The Parties’ Positions

[20] The plaintiff asks that Mr. Chaudhry be compelled to re-attend to answer the questions I have ordered him to answer and to answer any proper questions arising therefrom. Moreover, the plaintiff seeks leave to conduct two to three additional hours of examination at large on top of the six hours it has already conducted.

[21] The plaintiff’s position is based on the following grounds:

(a) Mr. Chaudhry has failed to answer many of his undertakings and improperly refused to answer numerous other proper questions put to him. His re-attendance will be necessary to answer questions he has been ordered to answer and to answer any questions that reasonably and properly arise from those answers; and,

(b) The plaintiff was “all but deprived of a meaningful discovery” by virtue of, amongst other things, Mr. Chaudhry’s failure to properly prepare for his examination and his counsel’s unreasonable and improper conduct during the examination.

[22] Mr. Chaudhry’s counsel did not make any specific submissions in oral argument about whether a further examination is appropriate. He did address the issue in his factum. There, he submitted that Mr. Chaudhry should not be re-examined. He said Mr. Chaudhry presented on the examination as knowledgeable and prepared. He did not refuse to answer any proper questions. Instead, was asked numerous improper questions intended to harass him.

The Governing Principles

[23] The plaintiff’s request to re-examine Mr. Chaudhry on questions arising from his compelled answers is governed by r. 34.15(1). That rule addresses the consequences for refusing to answer proper questions during an examination. It provides that the court may:

(a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at his or her own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer;

(b) where the person is a party or, on an examination for discovery, a person examined on behalf or in place of a party, dismiss the party’s proceeding or strike out the party’s defence;

(d) make such other order as is just.

[24] It is not uncommon for the court to order a re-attendance by a party who has refused to answer questions properly put to him or her. See, for instance, Muslija v. Pilot Insurance Co., 1991 7358 (ON SC), [1991] O.J. No. 872 at para. 14. That said, there is no absolute right to a follow-up examination where a party has been ordered to answer questions improperly refused. The onus is on the party seeking the re-attendance to establish that it would serve a useful purpose. See Ramdath v. George Brown College of Applied Arts and Technology, 2012 ONSC 2747 at para. 32.

[25] The central question to be asked is whether the re-attendance would advance one or more of the core purposes of the discovery process. See Ratana-Rueangsri v. Shorrock, [2009] O.J. No. 900 at paras. 26-27. Those core purposes include enabling the examiner to know the case to be met; to obtain admissions; to define and narrow the issues; and to promote settlement. See Ramdath, as above, at para. 26.

[26] The plaintiff’s request for leave to examine Mr. Chaudhry at large for another two to three hours is governed by rules 31.03 and 31.05.01.

[27] Rule 31.03(1) provides that a party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court.

[28] Rule 31.05.01 provides that no party shall conduct oral examinations for discovery that exceed seven hours, except with the consent of the parties or leave of the court. In considering whether leave should be granted, the court is guided to consider the following factors:

(a) the amount of money in issue;

(b) the complexity of the issues of fact or law;

(d) the financial position of each party;

(e) the conduct of any party, including a party’s unresponsiveness in any examinations for discovery held previously in the action, such as failure to answer questions on grounds other than privilege or the questions being obviously irrelevant, failure to provide complete answers to questions, or providing answers that are evasive, irrelevant, unresponsive or unduly lengthy;

(f) a party’s denial or refusal to admit anything that should have been admitted; and

(g) any other reason that should be considered in the interest of justice.

Discussion

[29] I have compelled Mr. Chaudhry to answer a significant number of questions. He can answer those questions in writing. Most of these answers are not likely, in my view, to lead to further questions of any real significance. Some however might, particularly the accounting questions. And those answers may touch upon issues that are central to these proceedings. For that reason, I believe it is appropriate that Mr. Chaudhry re-attend to answer any questions arising from the answers to the undertakings and refusals I have compelled him to answer.

[30] In my view, any follow-up examination will not be substantial. It should be easily capable of being completed within one hour. That additional hour will take the plaintiff up to the seven-hour ceiling imposed by r. 31.05.01.

[31] I do not believe that the plaintiff should be entitled to more than the seven hours of discovery mandated by the Rules, nor to a further examination of Mr. Chaudhry at large. I say this for a number of reasons:

(a) The plaintiff has already had six hours of discovery. This case barely exceeds the Simplified Rules threshold. More than seven hours of discovery is disproportionate to the amounts at stake;

(b) Neither party is particularly deep-pocketed. The plaintiff is a modest-sized business. Mr. Chaudhry is an individual and his gas station is a small, family-run business;

(c) The issues are not the easiest to litigate, but they are relatively narrow and do not involve complex legal problems. I am not persuaded that the standard seven-hour window for examinations is insufficient to meet the needs of this litigation. Permitting further examinations at large would be, in my view, to countenance an inefficient and disproportionate use of resources; and,

(d) I am satisfied that, despite obvious challenges, the plaintiff’s counsel was able to conduct a meaningful examination of Mr. Chaudhry in the first instance. Both counsel accuse the other of engaging in inappropriate, obstructive and unprofessional conduct during the course of the examinations. Their assertions required the court to conduct a detailed review of the transcripts. What was revealed was not pretty. They reflect a level of animosity between counsel that serves no one’s interests. There were clearly language issues in play that created confusion at times, which led to frustration and bickering. Both counsel were, in my view, excessively aggressive. The defendants’ counsel was, at times, inappropriate. He challenged the plaintiff’s counsel’s competence, referred to her questions as “dumb” and made comments about her appearance. None of that should have happened. Having said all of that, the examination proceeded over some six hours in total. It appears to me that Mr. Chaudhry was adequately prepared. And it appears that the plaintiff’s counsel was able to cover all of the areas she wished to cover. She did not articulate, in argument, any particular areas she was unable to address due to the conduct of Mr. Chaudhry or his counsel.

[32] In the result, I order that Mr. Chaudhry re-attend to answer any questions properly arising from the answers I have compelled him to provide in this ruling. Any further examination on that re-attendance shall be conducted over Zoom and shall be limited to one hour in duration.

Part III: The Defendants’ Request to Examine Mike Palmer

The Parties’ Positions

[33] The Chaudhry Defendants are not asking to examine Mr. Byles on questions arising from answers I have compelled him to provide. Had they made that request I would have denied it, given my view that his compelled answers are unlikely to give rise to any further questions of any significance.

[34] What the Chaudhry Defendants want instead, is an opportunity to examine a second representative of the plaintiff. They have conducted a significant examination of John Byles, the president of the plaintiff, over a period of roughly 4.5 hours. They now wish to examine Mike Palmer. Mr. Palmer is the plaintiff’s chief financial officer. He has been responsible for conducting the internal investigation of the circumstances giving rise to this lawsuit.

[35] The Chaudhry Defendants assert that Mr. Byles was ill-prepared and ill-informed, making their examination of him unproductive. Moreover, the examination was interfered with by counsel to the plaintiff who, the defendants say, was disruptive.

[36] Counsel to the plaintiff denies that her conduct during the examination of Mr. Byles was in any way inappropriate. She submits that Mr. Byles clearly prepared himself for the discovery process and gave fulsome answers during his examination and he followed up promptly on his undertakings. The Chaudhry Defendants specifically asked for Mr. Byles to be produced for examination. There are no circumstances here that warrant leave being granted for the examination of a second representative of the plaintiff.

The Governing Principles

[37] The defendants’ request to conduct a second examination for discovery is governed by r. 31.03. It provides that an examining party may examine one officer, director or employee of a corporation. A second representative may only be examined on consent or with leave of the court.

[38] Before granting leave, the court is required, by r. 31.03(4), to be satisfied that:

(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience; and,

(b) examination of more than one person would likely expedite the conduct of the action.

[39] In Fischer v. IG Investment Management Ltd., 2016 ONSC 4405, at para. 40, Justice Perell observed that “the test for additional examination for discovery is strict and orders to examine a second representative are rarely granted.” The moving party must demonstrate, he said, that (a) it cannot otherwise obtain the discovery to which it is entitled from the examined party’s witness; and (b) there are other special circumstances related to whether the initial representative was uninformed about the material issues. (Fischer, para. 39)

[40] It is not enough to demonstrate that the representative being examined does not have comprehensive personal knowledge of the circumstances of the case. (Fischer, para. 28). Nor is it enough that the examining party believes that better answers might be available if another person with personal knowledge of the relevant circumstances were to be examined. (Fischer, para. 37). The moving party must “demonstrate that the examined party’s answers, including answers to proper questions to follow up on undertakings, have not been answered or that answers are incomplete, unresponsive, evasive, or ambiguous.” (Fischer, para. 41).

Discussion

[41] Having reviewed the transcript of Mr. Byles’ examination, I am satisfied that he sufficiently prepared himself for the examination to comply with his obligations under the Rules and to ensure that the examination was meaningful. Moreover, he demonstrated a willingness to provide the information sought, whether through his direct answers, or through undertakings to obtain answers from other knowledgeable parties. He followed up on his undertakings in a prompt and thorough way.

[42] I am completely unsatisfied that granting leave to examine Mr. Palmer would expedite the proceedings in any way. I am similarly unsatisfied that proper questions have not been answered or that the answers are incomplete, unresponsive, evasive or ambiguous. I tend to agree that Mr. Palmer might have been more readily able to answer a number of the questions put to Mr. Byles. But that is not the test.

[43] While the clashes between counsel during both examinations were unfortunate, they did not, in this instance, undermine the utility of the examination of Mr. Byles. The Chaudhry Defendants have had an opportunity to meaningfully examine a representative of the plaintiff. That representative prepared himself for the examination, answered questions properly put to him to the best of his ability, and undertook to obtain answers he was not otherwise able to provide. He followed up on his undertakings diligently.

[44] I note that Mr. Zafar examined Mr. Byles for about 2 ½ hours on August 18, 2022. The examination was adjourned at 5:00 p.m. It was continued on September 2, 2022 when it proceeded for another 2 hours. It does not appear that there was any communication from Mr. Zafar to Ms. Siemen between those two dates asking that someone other than Mr. Byles be produced, nor any complaint that he was not a proper representative. No indication appears in the record from the second day of examination that suggests there was any complaint about the appropriateness of Mr. Byles as the plaintiff’s representative, until Mr. Byles’ examination was complete.

[45] Mr. Zafar did not articulate in argument any specific discovery he was unable to obtain through his examination of Mr. Byles, whether by way of direct answers or undertakings.

[46] Having regard to the foregoing factors, and factoring in the overarching concern for proportionality, I am not satisfied that leave should be granted for an examination of Mr. Palmer. Simply put, it would not be worth the candle.

Costs

[47] Both parties seek costs.

[48] Ms. Siemen filed a costs outline that indicated that the plaintiff has incurred actual costs of $39,640.61 associated with these motions, including $34,503.00 in fees, $652.22 in disbursements and $4,485.39 in HST. She seeks $24,000 all-inclusive, on a partial indemnity basis.

[49] Mr. Zafar filed a costs outline that indicated that the Chaudhry Defendants have incurred actual costs associated with these motions of $27,240.64, which includes $19,250.00 in fees, $4,967.20 in disbursements and $3,023.44 in HST. He seeks, on their behalf, partial indemnity costs of $15,000.00 all inclusive.

[50] It is truly regrettable that more than $60,000 in fees and disbursements have been run up on an undertakings and refusals motion, when the total claimed in the action is $235,000.00 (inclusive of $100,000 in punitive damages). The motions have done little to move the action forward. The fees incurred are patently disproportionate and reflect a lack of concern for the culture shift urged upon civil litigants by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7.

[51] At any rate, the awarding of costs in civil proceedings is discretionary. The discretion is grounded in section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43.

[52] The exercise of the discretion is guided by Rule 57.01 of the Rules of Civil Procedure which sets out a number of factors for the court’s consideration, including:

(a) the complexity of the proceeding;

(b) the importance of the issues;

(d) whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution;

(e) the principle of indemnity; and,

(f) the concept of proportionality, which includes at least two factors:

i. the amount claimed and the amount recovered in the proceeding; and,

ii. the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.

[53] The weight to be applied to any of the enumerated, or other, factors in any given assessment may vary. It is well-settled, however, that the overarching principles to be observed in the exercise of the court’s discretion to fix costs are fairness, proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.).

[54] Success was somewhat divided on this motion. Both sides were ordered to answer outstanding questions. Neither side was successful in their request to conduct further oral examinations at large. That said, I find that the plaintiff was the somewhat more successful party based on the significantly greater number of questions Mr. Chaudhry must answer and the order I have made that he re-attend to answer questions arising from his compelled answers.

[55] Keeping in mind that divided success and, more importantly, the concept of proportionality, I order the Chaudhry Defendants to pay to the plaintiff the sum of $3,500 in costs of the motion, all-inclusive. Those costs are to be paid within 30 days.

C. Boswell J.

Date: June 7, 2022

APPENDIX “A”

UNDERTAKINGS, UNDER ADVISEMENTS AND REFUSALS CHART

Examination of Waryam M. Chaudhry on August 17-18, 2021

UNDERTAKINGS0)

Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Undertaking

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

Production Obligations

110

To make best efforts to obtain confirmation of when your email address,

waraymchaudhry@hotmail.com m, was activated and to search the email address and produce any and all content that is relevant to this Action

Not sure but rough idea is in August 2012. Most of time he is not using the same email and get help from his children.

Unanswered.

Failed to: (a) confirm when the email address was activated; (b) to search the email address; and (c) to produce any and all content that is relevant.

It is confirmed that this email is still active and mostly use by the children of Waryam and nor relevant to this action.

In my view, this question has been answered. The activation date is “roughly” 2012 and there are no relevant documents relating to this account.

UNDERTAKINGS0)

Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Undertaking

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

288

66-67

To deliver an updated version of Schedule “C” of the Affidavits of Documents which accurately reflects the documents that were, but are no longer in Mr. Chaudhry’s possession, power or control

We will deliver you soon

Unanswered.

An updated Schedule “C” has not been delivered.

Schedule “C” - Documents that were formerly in my possession, control or power but are no longer in my possession, control or power.

“NONE”

The Chaudhry defendants have listed no documents on Schedule “C” to their Affidavit of Documents. Yet, they clearly say there are relevant documents they once had, but no longer have, such as historical fuel invoices. A revised Schedule “C” is required.

The Gas Station and its Operations

268-269

To provide a list of employees who worked or people who assisted at the Bond Head Esso Station between January 2011 and December 2017, including the period to time that they worked or assisted, their rate of pay and their contact information

All employees as stated below in Questions 667-668, all paid minimum wages for numbers of hours worked.

Unanswered.

Failed to: (a) advise of the period of time that each individual worked or assisted; (b) advise of their rate of pay; and (c) provide their contact information.

For the purpose of the Motion and with a view to proportionality, the Plaintiff is willing to limit its request to the period Feb. 2017 through Sept. 2017. The Plaintiff reserves its right to request further documentation/ information during the material time (i.e., Jan. 2011 through Dec. 2017), as may be necessary.

The Response to Undertaking chart dated October 29, 2021, delivered to the Plaintiff on November 1, 2021, provided all employees records with T4s described the relationship with Owner of gas station at serial No. 32 & 33. The Plaintiff is deliberately misguided the court regarding such information.

The Chaudhry defendants have largely answered this undertaking. They have provided the names of the employees who worked during the relevant period and have indicated that all were paid minimum wage. The defendants must still provide contact information for those employees, to the extent that it is known.

UNDERTAKINGS0)

Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Undertaking

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

393-403

89-92

To make best efforts to determine, between 2011 and 2017, how many pumps and nozzles there were at Bond Head Esso Station and what fuel was offered at each pump and nozzle

The pumps were changed in 2019 almost more than 2 years ago I do not remember. Currently we have 10 nozzles

Unanswered.

What efforts, if any, were made to answer this undertaking?

The Defendant made best efforts to determine the number of pumps and nozzles there were at the Bond Head Esso Station between the years of 2011 and 2017. The pumps were changed in 2019 and the Esso Station currently has 4 pumps with 10 nozzles. There is no additional pump when replaced the same in 2019. It is a common sense but the Plaintiff deliberately made issue just to misguide the court.

I understand the Chaudhry defendants to be saying that there are now 4 pumps and 10 nozzles. Though the pumps were changed over in 2019 there remain 4 pumps with 10 nozzles. If I am correct in that understanding, then the undertaking has been answered.

Volume of Fuel Purchased, Sold and in the Reserve Tanks

451-452

105-1

To produce any records that show the volume of fuel in the reserve tanks from January 2011 to December 2017 on a daily basis, whether computerized or otherwise

We have system on the tanks which we just touch the screen to check the daily inventory in the tanks that’s why we do not need to keep records.

Unanswered.

What efforts, if any, were made to answer this undertaking?

The Defendant clearly answered the questions. The Defendant states that they do not keep the old records of daily checking the volume of fuel in the tank from January 2011 to December 2017 if the fuel was low then he made order to the company, which all records the Plaintiff already collected directly from the company. But the Plaintiff is still made such issue just to misguide the court.

When asked about daily records of fuel in the tanks, Mr. Chaudhry said he did not keep such records. He said the volume of fuel in the tanks is only relevant to the issue of when he needs to order more fuel. And he can determine the volume in the tanks by pressing a button on a touch screen. He said he would check his records and if he found anything, he would produce it. His answer to the undertaking remains the same as it was on the examination. In my view, this undertaking has been answered.

UNDERTAKINGS0)

Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Undertaking

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

516

128-1

With respect to the document found at Tab 2 of Mr. Chaudhry’s Supplementary Affidavit of Documents, to determine what each of the pages is referring to and whether each of these pages is in relation to Mr. Chaudhry’s gas station

This is Esso Fuel Deliveries for Diesel at Bond Head

On the face of the document, seemingly inaccurate and/or incorrect.

What efforts, if any, were made to answer this undertaking accurately?

The Question was answered correctly the document at Tab 3 of Mr. Chaudhry’s Supplementary Affidavit of Documents is referring to Esso’s Fuel Deliveries for Diesel at Bond Head.

The document in issue is Esso’s “Retail Volume Book” for the period 2014 to 2017. The answer provided is that only one page of this document refers to the Bond Head Esso (BU-51574. This undertaking is answered.

520-526

130-1

To advise who the fuel supplier was and when (between 2011 through 2017)

Pioneer and then changed to Parkland. We already provided the contract agreement for both.

Unanswered.

The question was answered and also provided the contracts of the supplier companies to the Plaintiff between 2011 to 2017 and the Defendant correctly stated as per contracts that Pioneer was their fuel supplier from 2009 to 2017 and Parkland was their supplier from 2018 to 2028. The Plaintiff is deliberately misleading just to misguide the court against the Defendants.

There was some confusion about how the defendants answered this question. During argument of the motions, it was made clear that the fuel supplier from 2011 to 2018 was Pioneer. From 2018 forward it has been Parkland (whose contract runs until 2028).

This undertaking has been answered.

519,

529

130,

132-1

To produce the invoices in relation to all fuel purchased for Bond Head Esso Station from 2011 through 2017, including how many purchases there were per month, how many litres were purchased and at what cost, including the documents referred to by Mr. Chaudhry that he testified to receiving from the fuel delivery drivers

You already received record. They don’t carry invoices more than a year.

The Plaintiff has no knowledge of any such documentation having been produced. For the purpose of the Motion and with a view to proportionality, the Plaintiff is willing to limit its request to the period Feb. 2017 through Sept. 2017. The Plaintiff reserves its right to request further documentation during the material time (i.e., Jan. 2011 through Dec. 2017), as may be necessary.

The defendant stated that they did their best efforts to locate the invoices asked for and discovered that they do not carry invoices for more than a year. It important that the documents of purchasing the fuel have already provided in Affidavit of Documents at Tab 1 & 2 and the Plaintiff itself collected all records directly from the supplier company.

The undertaking has been answered. The defendants say they have no records of fuel purchases between 2011 and 2017 because they only keep those records for a year.

This is an item that will have to be added to the defendants’ Schedule “C”.

UNDERTAKINGS0)

Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Undertaking

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

534

134-1

To make best efforts to identify and provide contact information for the technician that told him that he doesn’t need to keep records of fuel in his reserve pump because the sensors will automatically alarm

He does not remember the technician’s name since this occurred in 2010. He told us whenever we are low on gas, we can check the screen and order. No need to keep inventory.

Unanswered.

What efforts, if any, were made to answer this undertaking?

What company did the technician work for so that we may attempt to contact him?

The Defendant did his best efforts to attempt to identify the technician who told him that he does not need to keep records of the fuel in his tank but since it that occurred in 2010, he does not have records of the person or the conversation. However, there is no need because all records of fuel have already provided to plaintiff.

This undertaking remains outstanding. Whether there is a “need” for the plaintiff to have this information is of no moment, since there was an undertaking given to provide it. The defendants must detail what efforts that have made to find the name of the technician.

536-546

135-1

To make best efforts to locate and produce any records showing the amount of fuel in the reserve tank before the fuel deliveries and the amount of fuel in the reserve tank after the fuel deliveries

When the there’s regular gas left in tanks around 10,000 liters and supreme 5,000 liters and diesel 4,000 liters then we decide to order gas.

Unanswered.

What efforts, if any, were made to answer this undertaking?

The question was answered clearly, the Plaintiff asked where they can produce any records showing the amount of fuel in the reserve tank and the Defendant clearly stated that there is not need for records and explained in detail the process in which they would go about ordering gas for the tank.

The plaintiff is not happy with the answer provided, which is that no records – whether daily, weekly or otherwise – were kept of amounts of fuel in the tanks. But that is the answer. Both sides are stuck with it. In my view, this undertaking has been answered.

561-562

141-1

To advise how much diesel fuel in litres he purchased between 2012 through 2015 (as referenced in Tab 14 of C&L Traders’ Affidavit of Documents)

We do not have that record.

Tab 14 is stated about Parkland purchase volume for 2012 -2015

What efforts, if any, were made to answer this undertaking?

The defendant made best effort to answer this undertaking. The Defendant does not keep records and cannot produce documents that they do not have. However, all records of purchase the diesel has already provided.

The defendant has records only back to 2015 for diesel purchases. Those have been produced. In my view, this undertaking has been answered.

UNDERTAKINGS0)

Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Undertaking

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

563-565

142

To inquire with the territory manager who provided Mr. Chaudhry with the document at Tab 14 of C&L Traders’ Affidavit of Documents about obtaining the “pre-2015 pioneer financial reports” that are purportedly “no longer accessible”

You have all records of Pioneer,

Unanswered.

The Pioneer is no longer supplier since 2018 when they switched supplier to the parkland. All collected pioneer documents have been provided to the Plaintiff.

The territory manager who provided Mr. Chaudhry with the document at Tab 14 of C&L Traders’ Affidavit of Documents about obtaining the “pre-2015 pioneer financial reports” that are purportedly “no longer accessible………

This undertaking remains unsatisfied. The defendants have produced a record of fuel purchases from Esso from 2015 through 2017 (the Retail Volume Book).

They have undertaken to follow up with the territory manager to determine if similar records are available for pre-2015. They need to do so and to provide the details of their efforts.

573-574

144-1

To inquire with the person or company who prepared the document found at Tab 2 of Mr. Chaudhry’s Supplementary Affidavit of Documents as to why the chart says “volume” at the top and “revenue” on the left

We don’t know who prepared this report. We provided as is received.

Unanswered.

What efforts, if any, were made to answer this undertaking?

The Defendant did do their best efforts to answer this question. All the documents were provided directly from the supplier company mix with other gas stations. There is only document related to Defendant, at page 55. Other gas stations charts should be discarded. .

The answer to this undertaking is patently insufficient. The defendants appear not to have made the inquiries it undertook to make at all.

This undertaking remains outstanding.

590-597

148-1

To explain the discrepancy in the stated volume of fuel purchased for 2015 in Tab 14 of C&L Traders’ Affidavit of Documents (1,882,365 litres) and Tab 2 of Mr. Chaudhry’s Supplementary Affidavit of Documents (1,169,664 litres) and to provide an accurate and updated volume of fuel purchased in 2015

Don’t create deliberate confusion. Two different documents don’t mixed up.

Unanswered.

The little discrepancy is showing because the supplier company did not have the records of starting months of 2015, which is clearly showing in the chart provided by the supplier company as they did not have the records of starting few months of 2015.

This undertaking is now satisfactorily answered.

UNDERTAKINGS0)

Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Undertaking

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

Financial Records

601-606

151-1

To produce all tax returns, tax documentation and general ledgers for 1397663 Ontario Inc. for 2011 through 2017

Already provided with Affidavit of Documents

Unanswered.

The Plaintiff has no knowledge of any such documentation having been produced.

The Defendant has already produced the tax Documents regarding GST/HST but Tax returns of corporation is not provided as the Plaintiff’s alleged fraud claim has not yet established. Also, the Tax Returns of gas station business are confidential.

It is no answer to an undertaking to say that the records sought are not relevant. There was an undertaking given to produce them. They must be produced.

657-661

164-1

To inquire with your accountant as to what the 2013 $40,000 credit “to update inventory for the year” and the 2012 $60,000 credit “to update inventory for the year” is referring to, as referenced in C&L Traders’ general ledgers

To update inventory as of year end based on estimate

Unanswered.

It is irrelevant questions and refused to provide the answer as per transcript meanwhile. Chaudhry voluntarily said to ask from account, therefore, it is not undertaking, and it has no relevancy regarding the plaintiff’s claim.

Mr. Chaudhry’s lawyer took the position on discovery that this question was irrelevant. But nevertheless, Mr. Chaudhry said he would ask his accountant for this information. I find that he undertook to answer the question.

His counsel argued that this information is privileged. But it is clearly not protected by either solicitor client privilege or litigation privilege. No other form of privilege was articulated.

This undertaking remains outstanding.

662-666

165-1

To inquire with your accountant and advise us what each of the transactions is for, or is referring to, in the general ledgers for C&L Traders from 2011 through 2017 under the heading “3000 sales” and whether these are transactions by customers at the convenience store

It includes all the sale for gas and convenience store

Unanswered.

Failed to advise whether these are transactions by customers at the convenience store

It is already gave the answer that the “3000 Sales” is sale of gas and convenience store.

This undertaking appeared to be answered, but the waters were muddied during argument. The formal answer to the undertaking is that “3000 sales” refers to both gasoline and convenience store sales. But in argument, the defendants’ counsel said it referred to convenience store sales and was therefore irrelevant.

The defendants must clarify, does the entry “3000 sales” refer to gasoline AND convenience store sales, or just convenience store sales?

UNDERTAKINGS0)

Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Undertaking

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

847-850

212-2

To search your records and inquire with your accountant and produce any documents (i.e., receipts, financial statements, general ledgers, or any other documentation) which explains these transactions shown in Mr. Clemmens’ bank statements as being “retail purchases” at Bond Head Esso Station: Dec. 8, 2014 of $50,

Dec. 24, 2014 of $560, Oct. 24,

2014 of $100, Oct. 30, 2014 of

$240, Sept. 26, 2014 of $240,

Nov. 9, 2015 of $100, May 1,

2015 of $220, April 17, 2015 of

$282, May 2, 2016 of $240,

Feb. 9, 2016 of $280, Jan. 29,

2016 of $200 and Jan. 27, 2017 of $200

Must have been recorded as sales.

Unanswered.

Failed to: (a) search records; (b) inquire with accountant; and (c) produce any documentation which explain the transactions.

What efforts, if any, were made to answer this undertaking accurately?

Mr. Choudhry already provided the answers during the discovery that the said amounts Mr. Clemmens took debit card cash back for his personal debit cards. The Bank Statement of Mr. Clemmens already indicated the same. There is no need to make questions again to create confusion in the mind of court. Mr. Clemmens also accepted the same. It has no relevancy to the alleged Plaintiff’s claim of speedpass credit card.

Mr. Chaudhry’s counsel advised that the transactions in issue were all debit card cash advances. He claimed they are not relevant. At the discovery, however, he said “this is a very relevant question”.

The undertaking, to be clear, was to ask the accountant to produce receipts for any debit card purchases or cash advances associated with the transactions identified.

This undertaking remains outstanding.

UNDER ADVISEMENTS0.

Outstanding under advisements given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Under Advisement

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

Production Obligations / The Gas Station and its Operations

364

83-84

To produce any and all ancillary documentation relating to the 2010 Motor Fuel Supply Agreement found at Tab 3 of Mr. Chaudhry’s Supplementary Affidavit of Documents, including but not limited to: any documentation, guidelines, policies, procedures, manuals and regulatory requirements and terms and conditions relating to point of sale services, the ordering and delivery of fuel and fuel storage tanks. Including those documents referenced in provisions 12(f), 14(c), 15(b), 18(e), 20(c), 26

and 32 of the Agreement

All agreement has been supplied of fuel supply. Also aforesaid stated about the ordering of fuel and all others are not relevant for this matter to disclose.

Unanswered/refused.

Relevant to determine policies, procedures and requirements in terms of record keeping, point of sale services, ordering, delivery of fuel and fuel storage tanks which is directly relevant to the fraud and will allow the Plaintiff to test the evidence produced (or refused to be produced) to date

The Defendant has answered the question. All agreement has been provided by the fuel suppliers and delivered the same to the Plaintiff. There are no other documents.

I am satisfied that the documents sought in this question are relevant to the defendants’ obligations in terms of record-keeping. They should be produced. If the defendants do not have the records sought, they should be listed on Schedule C to the defendants’ Affidavit of Documents.

365

To produce any and all ancillary documentation relating to the 2018 Motor Fuel Supply Agreement found at Tab 4 of Mr. Chaudhry’s Supplementary Affidavit of Documents, if such documentation is different from that which is produced in relation to the 2010 Motor Fuel Supply Agreement

Both Agreement made by the companies and not by waryam Choudhry.

Unanswered/refused.

The question is answered the Defendant cannot produce an ancillary documentation relation to the 2018 Motor Fuel Supply Agreement found in Tab 4 of Mr. Chaudhry’s Supplementary Affidavit of documents because the documents were not made by Mr. Chaudry.

I make the same endorsement here, as I did with respect to question 364.

UNDER ADVISEMENTS0.

Outstanding under advisements given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Under Advisement

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

Volume of Fuel Purchased, Sold and in the Reserve Tanks

722-731

180-1

To produce documentation proving the volume and dollar amount of diesel fuel sold at Bond Head Esso Station, per month, from 2011 through 2017

Already provided all related documents and noting else they carry.

Unanswered/refused.

The Plaintiff requires documentation necessary to reconcile the volume of diesel fuel purchased and received versus the volume of diesel fuel sold and removed from the reserve tank.

The Defendant did answer the questions as per documents provided, the Defendant cannot produce documents that they do not have and any other documents that are relevant have already been provided to the Plaintiff.

This is a clearly relevant question in light of the live issues in this case. In particular, the central allegation that the defendants charged for more fuel than they sold.

I have not been directed to any evidence to support the defendants’ assertion that the question has been answered. In my view it remains outstanding.

UNDER ADVISEMENTS0.

Outstanding under advisements given during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Under Advisement

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

732-722

183

To produce the supporting documentation which proves that Bond Head Esso Station sold the same amount of fuel that it purchased every year

Question is not proper because all relevant documents have been produced.

The Plaintiff requires documentation necessary to reconcile the volume of diesel fuel purchased and received versus the volume of diesel fuel sold and removed from the reserve tank.

Mr. Chaudhary answered the questions and provided all documents in his possession, however, all such records of fuel purchased received by Plaintiff directly from supplier company. There is no any discrepancy found by the plaintiff in those documents but deliberately misguided the court.

This question is related to question 722. It is relevant for the same reason.

Similarly, I have not been directed to any proof that the question has been answered. The defendants’ counsel submitted that it is common sense that the defendants sold the same amount of fuel that they purchased. I do not disagree with that broad assertion, but the allegation in this case is that they recorded the sale of more fuel than they purchased, which makes the records of their sales particularly probative.

In my view, this was a proper question and remains outstanding.

Financial Records

684-698

170-1

To inquire with your accountant and produce any information and supporting documentation he has in relation to the $20,000 consulting fee that C&L Traders’ recorded in its general ledger for 2015

This is not relevant to this matter.

Relevant to the relief sought by the Plaintiff relating to wrongful misappropriation and/or diversion and conversion of funds.

The Plaintiff is entitled to test the evidence produced to date, specifically, whether the $20,000 "consultant fee" is a legitimate expense and unrelated to these proceedings.

Mr. Choudhry answered the same in Transcript in questions No. 696 that the said amount never paid to Mr. Clemmens. After very clear answer by Mr. Chaudhry there is no need to repeat the same question again.

The question is relevant as it touches upon the validity of a significant consulting fee paid out by the defendants in 2015.

There is no assertion of privilege. The defendants say that the plaintiff should trust the answer that the payment was not made to Mr. Clemmens. But the plaintiff is not obliged to trust them. The plaintiff is entitled to pursue this question and it must be answered.

REFUSALS0.

Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

Production Obligations

915-919

230-2

To produce a list of the names and last known contact information for each of the individuals referred to in paragraph 11 of his pleading: “…Those old customers are willing to become witnesses to prove our good standard and services…”

We are still trying to find such old customers and will provide the same if Mr. Choudhry will find them.

Unanswered.

The pleading states that certain customers “are willing to become witnesses”.

The Plaintiff is entitled to the names and contact information for the customers who have agreed to be witnesses.

We are still trying to find them but could not succeed.

During argument, the plaintiff’s counsel advised that she accepts the answer received.

REFUSALS0.

Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

Volume of Fuel Purchased, Sold and in the Reserve Tanks

470-484

110-1

To write to your fuel supplier regarding the period 2011 through 2017 and to request any records that they have showing volumes of fuel in the reserve tanks

We have already received all reports and produced through Affidavit of Documents.

Unanswered.

The Plaintiff has no knowledge of the Defendants’ inquiries with the fuel supplier or of any such reports having been produced.

The Plaintiff requires documentation necessary to reconcile the volume of diesel fuel purchased and received versus the volume of diesel fuel sold and removed from the reserve tank.

The question was answered the defendant made it best effort to produce records regarding the volume of the duel in the tank and have stated numerous times that they do not keep such records. However, the said records already received by the Plaintiff directly from the supplier companies, which are mentioned in Affidavit of Documents.

The question is relevant for obvious reasons. The defendant must provide evidence that it has requested the records sought from its fuel supplier.

REFUSALS0.

Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

489

114

To provide a list of anybody who measured fuel in the reserve tanks between 2011 through 2017

During the Discovery Examination Mr. Choudhry already talked about the measured fuel.

Unanswered.

No list was provided during Mr. Chaudhry’s examination.

The Plaintiff requires documentation necessary to reconcile the volume of diesel fuel purchased and received versus the volume of diesel fuel sold and removed from the reserve tank.

The Defendant stated number times that he does not have records of the fuel being measured and cannot produce documents that he does not have such old records.

The plaintiff sought the names of anyone who measured the fuel in the reserve tanks between 2011 and 2017. The question is relevant because of its relationship to the central issue in the proceedings: the reconciliation between amounts sold and amounts purchased.

Mr. Chaudhry refused to answer the question. The answer produced here – that records of measurements were not kept – does not answer the question asked.

That question remains outstanding and should be answered.

REFUSALS0.

Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

509

127

To produce records with respect to all diesel fuel sales from 2011 through 2017

Already provided the reports with Affidavit of Documents.

Unanswered.

The Plaintiff has no knowledge of any such records having been produced.

The Plaintiff requires documentation necessary to reconcile the volume of diesel fuel purchased and received versus the volume of diesel fuel sold and removed from the reserve tank.

The Defendant has answered this question. The Defendant states that the reports are in their Affidavit of documents therefore the Plaintiff does have knowledge that these documents had been produced. Also the Plaintiff received the same directly from the supplier company but could not find any discrepancy to establish alleged claim.

The question is relevant for obvious reasons. It does not appear to me to have been answered. The defendants appear to be referring to the Retail Volume Book, which, if I am correct, shows purchases of fuel and not sales.

This question asks for records of fuel sales between 2011 and 2017 (limited now to February 2017 to September 2017). I have not been referred to any documentation that establishes that the question has been answered. In my view, it remains outstanding. If the answer is that the records no longer exist, then those records should be reflected on Schedule C to the defendants’ Affidavit of Documents.

REFUSALS0.

Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Moving Party/Plaintiff’s Position

Defendants Response to the Plaintiff’s position

Disposition by the Court

536-550

135-1

To write to the fuel supplier to inquire as to whether they have access to any records that show how much fuel was in the reserve tank before delivery and how much was in the reserve tank after delivery, and to produce such records

Already provide the complete reports of company whatever we have the records.

Unanswered.

The Plaintiff has no knowledge of the Defendants’ inquiries with the fuel supplier or of any such reports having been produced.

The Plaintiff requires documentation necessary to reconcile the volume of diesel fuel purchased and received versus the volume of diesel fuel sold and removed from the reserve tank.

The Defendant made it best effort regarding the records that show how much fuel was in the tank before delivery and how much was in the reserve tank after delivery and all documents and reports on the records of the fuel were already provided. The Defendant cannot produce documents that they do not have.

This is the same question as that posed at 470-484. I make the same endorsement here.

Financial Records/Information

629

156-1

To advise of the name and contact information for the accountant for each of Mr. Chaudhry, C&L Traders and 1397663 Ontario Inc.

Irrelevant as whatever required documents Mr. Choudhry provided.

Mr. Chaudhry was unable to answer any questions during his examination relating to the companies’ books and records.

The accountant may: (a) have source or supporting documentation relevant to this action and that has yet to be produced; and (b) be a witness at trial.

Mr. Chaudhry already answered the questions and there is no need of accountants’ personal information. However, Mr. Chaudhry already provided the Plaintiff all relevant information received from the accountant. The Plaintiff’s lawyer could not establish any fraud claim against him and his gas stations therefore, she is asking irrelevant information and documents which are not relevant to their claim.

The defendants’ accountant is undoubtedly a party who is in control of relevant evidence. The plaintiff is entitled to know who the accountant is and what his or her contact information is.

APPENDIX “B”

UNDERTAKINGS, UNDER ADVISEMENTS AND REFUSALS CHART

Examination of John Byles on August 18, 2021 and September 2, 2021

UNDERTAKINGS0)

Outstanding undertakings given during the examination of John Byles on August 18, 2021 and September 2, 2021.

Quest. No.

Page No.

Specific undertaking

Date answered or precise reason for not doing so

Disposition by the Court

462

122

To make inquiries with Mike Palmer to determine if he has any notes or documentation relating to the internal investigation, and to produce such documentation subject to privilege and relevance

Attached at Tab 1.

I have reviewed the plaintiff’s productions and I am satisfied that the notes have been provided.

644

172

To make best efforts to obtain video surveillance from IRI, if it exists, and to produce it, subject to privilege and relevance

Attached at Tab 2.

I understand this has been produced, though it was not part of the productions forwarded to me for review. If not already provided, any such surveillance should be provided.

866-869

229-230

To make best efforts to search for and produce maintenance reports regarding Mr. Clemmens’ truck for the period 2011 through 2017, subject to privilege and relevance

Attached at Tab 3.

These appear to me to have been provided.

959-963

255-256

To make best efforts to determine how many times between 2011 through 2017 Mr. Clemmens was not paid a bonus

During this period, Mr. Clemmens did not receive a bonus once, in July 2014.

This undertaking appears to have been satisfied.

UNDER ADVISEMENTS0.

Outstanding under advisements given during the examination of John Byles on August 18, 2021 and September 2, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Disposition by the Court

392-394

101-103

To ask Mike Palmer when he engaged his internal analysis of Mr. Clemmens’ driving routes and patters, and whether he determined what was most efficient and cost effective

On or around March 6, 2017. Mr. Palmer did not make a determination as to what was most efficient and cost effective.

This question appears to have been satisfactorily answered.

587

156

To inquire with Mike Palmer as to whether he consulted with other investigative companies prior to retaining IRI

Mr. Palmer did not.

This question appears to have been satisfactorily answered.

608

162

To inquire with Mike Palmer whether Mr. Clemmens ever confronted him about the surveillance and investigation

Mr. Clemmens did not.

This question appears to have been satisfactorily answered.

965

256

To provide the contact number and name of the people who had interactions with Mr. Clemmens

Refused. FKM is unaware as to who Mr. Clemmens interacted with.

Based on the submissions made in argument, it would appear that what the defendants are looking for is a list of names of people with whom Mr. Clemmens may have had disagreements at work.

If the question is to name anyone Mr. Clemmens ever interacted with, the question is improper because it is singularly broad and not confined by relevance.

If the question is to name anyone whom Mr. Clemmens may have had conflict with at work, that is a question more properly put to Mr. Clemmens.

REFUSALS0.

Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Disposition by the Court

How many people currently reside with you in your residence in Barrie

Irrelevant. Mr. Byles is not a party to this proceeding and there are no allegations in relation to his family or personal finances.

This question was abandoned in argument.

43-47

11-12

How many drivers were working at F.K. Machinery from 1995 through 2017

Irrelevant. There are no allegations relating to other or the number of drivers or employees of the Plaintiff.

In my view, this question is relevant to the extent that it asks about the identity of drivers between 2011 and 2017 (the time period encompassed by the claim. That said, Mr. Byles provided an answer as to how many drivers they employed during that relevant time period.

It is not apparent to me why the number of drivers employed between 1995 and 2011 is relevant. The question was properly refused.

225

Is it a duty of F.K. Machinery to look and check each and everything

Improper question. Looking and checking “each and everything” is vague. There is no connection between this question and any of the allegations in the pleadings.

I agree that the question, as phrased, is too vague and need not be answered.

Mr. Zafar submitted that what he was asking was whether it was the plaintiff’s duty to keep tabs on the activity of its drivers. Even if that was the question, which is not entirely clear from the transcript, I continue to be of the view that it is too vague.

REFUSALS0.

Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Disposition by the Court

247

How do you know Mr. Clemmens was working on May 23 to 26, 2017

Previously asked and answered (p. 54). Answered further on p. 68: “The general practice, as Mr. Clemmens confessed to yesterday, during testimony, was that he did not typically sign it, but he handed them to Tammy Weeks or Sharon Nahorny, so we know when there was no drivers name, 100 percent it was Mr. Clemmens.”

This is the first of a series of questions asked of Mr. Byles about activity sheets filled out by drivers. A number of activity reports purporting to be those of Mr. Clemmens were not signed by anyone. The defendants want to know how the plaintiff knows that the activity reports are those of Mr. Clemmens when they were not signed.

Though the defendants may not like the answers given, I am satisfied that the question was previously asked and answered.

251

How do you know this is a Mr. Clemmens, because there is no name on it?

This is, in effect, the same question as #247. I am satisfied it has been answered.

256

How you know without name of driver, this is the claimant

This is, in effect, the same question as #247. I am satisfied it has been answered.

267

67-68

Where there is no name of the driver, no initial, no notes, how do you know this is Mr. Clemmens

Previously asked and answered (p 54). Answered further on p. 68: “The general practice, as Mr. Clemmens confessed to yesterday, during testimony, was that he did not typically sign it, but he handed them to Tammy Weeks or Sharon Nahorny, so we know when there was no drivers name, 100 percent it was Mr. Clemmens.”

This is, in effect, the same question as #247. I am satisfied it has been answered.

REFUSALS0.

Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Disposition by the Court

270

How do you recognize this is the Mr. Clemmens from the sheet. I could not understand that there is no name on it. There’s no notes on it, so my question is very simply, but how you recognize that this is Mr. Clemmens

This is, in effect, the same question as #247. I am satisfied it has been answered.

275-277

70-71

Is there any record you terminate your employees between 2011 to 2017, other than Clemmens

Irrelevant. There are no allegations relating to other employees of the Plaintiff nor are there any allegations in respect of Mr. Clemmens’ cessation of employment with the Plaintiff.

This question, as asked, is too broad. It is not possible to determine its relevance.

In argument, Mr. Zafar said he was trying to ask whether Tammy Weeks was fired for something that had to do with this investigation or a rift between her and Mr. Clemmens. That is not the question that was asked however.

280

Did you fire or terminate any other employee than Clemmens during the 2011 to 2017

Irrelevant. There are no allegations relating to other employees of the Plaintiff nor are there any allegations in respect of Mr. Clemmens’ cessation of employment with the Plaintiff.

Improperly stated and without establishing the factual foundation for the question. Specifically, the Plaintiff did not fire or terminate Mr. Clemmens.

This, in my view, is the same question as that asked at 275-277. Its relevance has not been established.

282-287

72-73

Why did Tammy Weeks leave?

Irrelevant. There are no allegations relating to Ms. Weeks nor are there any allegations in respect of Mr. Clemmens’ cessation of employment with the Plaintiff.

This question may be relevant if Tammy Weeks left as a result of the investigation into the alleged fuel overcharge.

This series of questions could have been phrased in a way that makes their relevance more apparent. That said, I am satisfied that this question was relevant and proper and should be answered.

290-295

74-75

Why Tammy Weeks did leave your F.K. Machinery?

Irrelevant. There are no allegations relating to Ms. Weeks nor are there any allegations in respect of Mr. Clemmens’ cessation of employment with the Plaintiff.

This is the same question as 282-297 and my endorsement is the same.

306

To give the date when Tammy Weeks leave F.K. Machinery and on what basis.

Irrelevant. There are no allegations relating to Ms. Weeks nor are there any allegations in respect of Mr. Clemmens’ cessation of employment with the Plaintiff.

This is the same question as 282-297 and my endorsement is the same.

REFUSALS0.

Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Disposition by the Court

308-310

78-79

Did you fire Tammy Weeks?

Irrelevant. There are no allegations relating to Ms. Weeks nor are there any allegations in respect of Mr. Clemmens’ cessation of employment with the Plaintiff.

This is the same question as 282-297 and my endorsement is the same.

334-338

83-84

How many employees were not being given quarterly bonus

Irrelevant. There are no allegations relating to other employees of the Plaintiff.

I am not satisfied that this question is relevant.

366

(339-366)

(84-93)

When you got a complaint of Mr. Clemmens that he is involved in fraud on the gas station, did you give the same truck to another employee driver to verify that the same truck was drove on the same kilometer, and he got the same fuel

Improper question.

Factual foundation has not been established (i.e., there was no complaint that Mr. Clemmens was involved in fraud).

In my view this was a relevant and proper question. It asks whether, as part of the plaintiffs’ investigation, they had another employee drive the same route as that driven by Mr. Clemmens, using the same truck that Mr. Clemmens drove, in order to check fuel consumption.

This should be answered.

387

100

When did Mike Palmer had knowledge that there’s a most efficient and cost effective disbursement responsibility following his [Mr. Clemmens] departure

Improper question.

Factual foundation has not been established (i.e., there is no evidence that Mike Palmer made such a determination) and Mr. Byles cannot speak to Mr. Palmer’s knowledge.

I am not certain that I understand the question as asked. For that reason, I am unable to say whether it was properly refused.

458

120

To review the calculations at paragraph number 24 and 22, according to your mileage, according to your litres, according to whatever you said here, and how much the fuel amount of every day.

Improper question as it is incomprehensible and incapable of being answered.

Similarly, I am unable to understand what exactly is being sought by the question in this instance. In the result, I am unable to determine if the refusal was valid.

494

131

Why did you discontinue Imperial Oil from the proceedings

Legal question and subject to solicitor-client and litigation privilege.

This question tends to intrude, in my view, into the sphere of advice given by plaintiff’s counsel to the plaintiff and the instructions received back. In my view, it is therefore protected by solicitor-client privilege.

560

144

So, you never tried to investigate other drivers regarding the fraudulent involvement with the Head Bond.

Previously asked and answered on

p. 143-144, “No, we focused on Mr. Clemmens because of the fact that he was there every day”. Answered further on pp. 241-243.

I agree that this question has been asked and answered.

REFUSALS0.

Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Disposition by the Court

576

154

When Mr. Clemmens was retired

Previously asked and answered at pp. 20-21, qq.76-77: “…I believe we cleared that up yesterday after about 20 minutes and it was June 16th, I think, 2017.”

Mr. Zafar agreed, during argument, that this question has been answered.

589-597

156-159

If Mike Palmer engaged with other investigative firms, to advise who they were and what their quotes for the scope of work was

Irrelevant. There are no allegations that Mr. Palmer improperly chose IRI, that IRI was chosen for financial reasons or that the scope of work was improper.

In any event, the Plaintiff confirmed in the answer to under advisement number 2, above, that Mr. Palmer did not consult with other investigative companies prior to retaining IRI.

This question has been answered. The answer is that Mr. Palmer did not consult with other investigative firms.

600

159-160

To inquire with Mike Palmer as to whether Mr. Clemmens knew about the surveillance during May and June

Improper question. Mr. Palmer cannot speak to Mr. Clemmens’ knowledge. A similar under advisement was given to a proper question at p. 624, qq. 166-167.

This question does not necessarily ask Mr. Palmer to read Mr. Clemmens’ mind. It is properly understood, in my view, as asking whether Mr. Palmer made any observations that would support an inference that Mr. Clemmens was aware of the surveillance. It is arguably a better question for Mr. Clemmens, but on balance I am satisfied that it is relevant and proper.

627-628

167-168

Do you think if someone knows about the surveillance and they would still trying to do something wrong?

Improper question. Vague and hypothetical. In addition, Mr. Byles cannot speak to what Mr. Clemmens would do.

This is not a proper question in my view. It is more properly characterized as argument.

695-699

186-187

To produce a copy of the Speedpass report made by F.K. Machinery regarding the Clemmens’ driving, regarding the Clemmens’ using that Speedpass

No such document exists. The Plaintiff will adhere to its ongoing production and discovery obligations in accordance with the Rules.

This question has been answered. The plaintiff has produced its Fleet Activity Report which reflects all usage of its speed passes.

737-738

199

When you make a claim against Mr. Chaudhry and Mr. Clemmens, what error or what misrepresentation showing in your fleet activity report you brought on with your Supplementary Affidavit of Documents on pages 74.2 and 74.3

Improper question. There are no allegations of errors or misrepresentations in the fleet activity report.

This too has been answered. There are no allegations of errors in the Fleet Activity Report.

REFUSALS0.

Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.

Quest. No.

Page No.

Specific under advisement

Answer or precise reason for not doing so

Disposition by the Court

775

208

Whether he has suspicions of any other employee of F.K. Machinery regarding such plan of alleged fraud at Bond Head Esso Station

Previously asked and answered at pp. 143-144. Answered further on pp. 241-243.

I agree, this was asked and answered. The answer given was “no”.

820-832

221

Why did you make the party of Esso Imperial when Esso said there was no fraud

Legal question and subject to solicitor-client and litigation privilege. In addition, it is improper as the factual foundation has not been established (i.e., Esso did not state there was no fraud).

I agree that, again, this question tends to intrude on the privileged sphere of communications between the plaintiff and its counsel.

To the extent that it asks about the plaintiff’s legal theory of the case against Esso, it is irrelevant given that Imperial Oil has been let out of the action.

840-850

224-227

Why you take off the Imperial Oil company from the Statement of Claim. Give me the answer

Legal question and subject to solicitor-client and litigation privilege.

This is the same question as #494. My endorsement is the same.

897-904

237-239

Give me the undertaking that you can provide me the statement, bank statements, credit card statements, when Mr. Clemmens was using the credit card of your company to get the gas.

This question was not refused. Mr. Byles advised that the reports have been previously produced (i.e., the Fleet activity reports) and no bank statements or credit card statements exist. Ms. Siemon suggested that Mr. Zafar question the deponent as to whether there are credit card statements. Mr. Zafar continued with his questioning.

In my view, this question has been satisfactorily answered.

994-1005

262-264

Why did you not take action to speak to the Crown or to appeal to restore the criminal charges

Irrelevant. The Plaintiff’s actions in relation to the criminal charges have no bearing on the civil lawsuit.

This is not a proper question. The decision whether to prosecute is in the discretion of the Crown.

F.K. Machinery Limited v. Exxonmobile Canada Products Ltd., 2022 ONSC 3357

Case Summary

UNDERTAKINGS, UNDER ADVISEMENTS AND REFUSALS CHART

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 1