BARRIE COURT FILE NO.: CV-20-00000604
DATE: 20220621
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RICHARD SMICIKLAS
Plaintiff
– and –
METROPOLITAN TORONTO CONDO CORPORATION #620, REMAX REALTRON REALTY INC. O/A REMAX REALTRON SMART CHOICE TEAM BROKERAGE 183, and LUKE SIKURA
Defendants
Doug LaFramboise, for the Plaintiff
Megan Mackey, for the Defendant, Metropolitan Toronto Condo Corporation #620
No one appearing for the Defendant, Remax Realtron Realty Inc. o/a Remax Realtron Smart Choice Team Brokerage 183
Niro Elankeeran, for the Defendant, Luke Sikura
HEARD: April 12, 2022
REASONS FOR DECISION
DE SA J.:
Overview
[1] The plaintiff seeks the following relief in his amended Notice of Motion as against the defendant condominium (the “Condominium”):
(a) An order directing the Condominium to deliver all board meeting minutes going back 12 years including minutes which contain “privileged” information;
(b) An order that a former director, who is experiencing medical difficulties, be produced as an in-person witness for the examination for discovery of the defendant Condominium; and
(c) An order that the defendant Condominium return an unknown quantum of “deposits”.
[2] He also seeks answers to various refusals in his examination of the defendant, Luke Sikura.
[3] The motion as against the Condominium is dismissed. The questions listed below shall be answered by the defendant, Luke Sikura, within 30 days of the release of this decision.
Summary of Facts
Board Meeting Minutes
[4] The plaintiff seeks an Order requiring the Metropolitan Toronto Condominium Corporation #620 (the “Condominium”) to provide all copies of normal and privileged and confidential board minutes of the Condominium since 2010.
[5] The plaintiff has received board meeting minutes or excerpts from 38 different board meetings from November 2012 to September 2021. The Condominium confirms that it has produced all board meeting minutes that relate in any way to suites 113 (the plaintiff’s suite) or 114 (his neighbour’s suite who the plaintiff alleges had similar issues and or was given preferential treatment). There are no other board meeting minutes which relate to the matters in issue in the proceeding.
[6] The Condominium has confirmed that it has not asserted “privilege” in relation to any documents that are relevant to the issues in this proceeding.
[7] The plaintiff has not established that he is entitled to board meeting minutes beyond those which have been produced. Accordingly, I see no basis for the order sought.
Selection of Deponent for Condominium’s Discovery
[8] The plaintiff seeks an order that a former director who happened to be his former neighbour, Linda Rogers, attend an in-person examination and provide evidence on behalf of the Condominium. According to the plaintiff, Ms. Rogers lived in the neighboring unit, she had a similar problem, and would possess information relevant to the action.
[9] The plaintiff maintains that the Board is hiding the fact that mold was known to be in the units.
[10] The Condominium states that it is not appropriate in the circumstances for the Court to order Linda Rogers to be examined in person on behalf of the Condominium. Linda Rogers is not a party to the lawsuit. She is not on the Board of the Corporation, and accordingly is not in a position to bind the Condominium in the action.
[11] Linda Rogers’ health is also likely to be negatively impacted by an examination; her physician strongly advises against her being examined. Furthermore, according to the Corporation, there is no evidence that Linda Rogers possesses information that other board members do not possess.
[12] According to the Condominium, the board member with the most knowledge of this matter is Vernon Achber. Alternatively three other current members of the board of directors have also been on the board since Mr. Smiciklas purchased his condominium unit: Terence Lobo, Robert Kolgour and James McMahon. All four of the above-noted individuals are current board members who would have information about all decisions made that could relate in any way to Mr. Smiciklas and his ownership of a unit within the Condominium including any issues with the mold.
[13] The plaintiff maintains that he has already discovered Vernon Achber in another lawsuit and claims re-examining him would be of no use.
[14] In the course of an action, situations may arise where an adverse party lacks knowledge of a key issue that may be known by a non-party to the litigation. In such instances, relief may be available to conduct an examination for discovery of a non-party. Having said that, a party does not have the ability to examine a non-party by right and must therefore seek leave of the Court pursuant to Rule 31.10.
[15] The preliminary consideration for the Court in hearing such a motion, as set out at Rule 31.10(1), is whether there is reason to believe the person sought to be discovered has information relevant to a material issue in the action. Once past this initial hurdle, the moving party must also satisfy the Court that it meets the three-part test set out at Rule 31.10(2), namely that:
(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
(c) the examination will not unduly delay the commencement of the trial of the action, entail unreasonable expense for other parties, or result in unfairness to the person the moving party seeks to examine.
[16] The moving party must satisfy all of the requirements set out in Rule 31.10 to be successful on the motion.
[17] I am not satisfied that the plaintiff has met the requirements set out in Rule 31.10(2). First of all, the plaintiff has not examined any of the current board members with a view to obtaining the requisite information.
[18] Second, Linda Rogers is 74-years-old and has a medical condition. She is deeply concerned that being examined for discovery would adversely affect her health. She is also afraid of catching COVID-19 at an in-person examination which is rampant in the community at present. Linda Rogers’ physician provided a letter which states:
Understanding Linda Rogers’ medical conditions, I would strongly advise against beings (sic) subject to stressful, confrontation engagements if it can be avoided or is unnecessary, as it will exacerbate her medical and mental health conditions.
[19] There are four board members who have been on the board since the plaintiff purchased his condominium unit. The plaintiff can select one from those four board members. If he cannot obtain what is necessary, he can raise the issue again on a subsequent motion.
Order for Return of Funds
[20] The plaintiff seeks an order that all deposits paid by the plaintiff be returned to him.
[21] The defendant Condominium Corporation confirms it received one $1,500 deposit from the plaintiff when he performed a renovation.The Condominium takes the position that it ended up spending more than $1,500 dealing with issues in the plaintiff’s unit, which costs were charged back to the plaintiff.
[22] The $1,500 was used to pay the invoices. In its materials, the Condominium produced the invoices confirming that it spent more than $1,500 dealing with issues caused by the plaintiff.
[23] If there are additional deposits beyond the $1,500, the plaintiff will have to be more particular about the specific amounts he seeks returned.
Undertakings and Refusals of Luke Sikura
[24] According to the plaintiff, Luke Sikura has refused to answer his undertaking and basically refused to answer any relevant questions. The plaintiff requests the following:
(a) An Order that Luke Sikura be re-examined to deal with his refusals;
(b) An Order that Luke Sikura provide the exact date he became a real estate agent or broker as requested in his examination of August 16, 2021; and
(c) An Order compelling Remax to fulfil their undertakings obligations.
[25] The Undertakings and Refusal chart has been produced below with the position taken by the defendant Luke Sikura:
- UNDERTAKINGS
Undertakings given on the examination for discovery of Luke Sikura, held August 16, 2021
Page No.
Question No.
Specific undertaking
Response
12 – 2
46
Can you provide a work permit for all your renovations?
Because no structural changes were planned, no work permit was required.
12 – 8
47
Do you have the purchase receipts for the hardwood floors you installed?
Please find attached Invoice No. 2697 from Flooring Liquidators (Yorkdale) dated January 18, 2018.
12 – 16
48
Did you have a contract with the installer of the hardwoods?
There was no separate contract with an installer because installation was supplied by Flooring Liquidators (Yorkdale) as part of the aforementioned Invoice.
12 – 20
49
Do you have a copy of the contract with the man who installed the hardwoods?
There is no contract with an installer.
12 – 20
50
Did you sign a contract stating come put hardwoods down in my Condo?
Please see answer above.
REFUSALS
Undertakings given on the examination for discovery of Luke Sikura, held August 16, 2021
Reasons for the refusal
15 – 7
57
As a Real Estate Agent did you know what a latent defect is?
Not relevant to the issues
15 – 18
58
Was Mr. Sikura a real estate agent at the time of the sale to Smiciklas?
Not relevant to the issues
15 – 21
59
Does Mr. Sikura know today what a latent defect is?
Not relevant to the issues
16 – 20
62
Given that you bought the condo from an estate would that not have triggered you to think someone had died in the condo?
Not relevant to the issues
17 – 19
71
When you sold the condo was it your personal residence and as such you paid no tax on the sale?
Not relevant to the issues
18 – 2
71
Given that it is your personal residence it would not attract taxes upon sale, that is the question
Not relevant to the issues
18 – 23
73
How many properties have you owned?
Not relevant to the issues
19 – 2
74
How many estate sales have you bought?
Not relevant to the issues
19 – 6
75
Would you say that your parents have extensive experience in real estate?
Not relevant to the issues
19 – 11
76
Were you aware that there was mold in the condo when you bought it?
This Defendant was not aware of any mold issues whatsoever in the condo. Had there been any such issues, he would not have purchased the unit.
20 – 2
77
Have you ever bought another condo in the 3900 Yonge Street complex?
Not relevant to the issues
20 – 12
79
Would you consider yourself a hermit?
Not relevant to the issues
20 – 17
80
As the president at the time Vernon Achber considered you as a hermit, was that you or the dead person?
Not relevant to the issues
[26] In my view, questions 46-50 have been answered.
[27] In my view, questions 57, 58, 76, 77 are relevant. Question 76 has already been answered.
[28] Answers to question 57, 58 and 77 shall be provided by the defendant, Luke Sikura, in writing within 30 days of the release of this decision.
Justice C.F. de Sa
Released: June 21, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RICHARD SMICIKLAS
Plaintiff
– and –
METROPOLITAN TORONTO CONDO CORPORATION #620, REMAX REALTRON REALTY INC. O/A REMAX REALTRON SMART CHOICE TEAM BROKERAGE 183, and LUKE SIKURA
Defendants
REASONS FOR DECISION
Justice C.F. de Sa
Released: June 21, 2022