COURT FILE NO.: CV-13-2155-00
DATE: 2022 06 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA
P. CALLAHAN, for the Plaintiff
Plaintiff
- and -
ROYAL BANK OF CANADA, SIVA GURRAPPADI, WILLIAM SYKES, USHA RADHAKRISHAN, SHEILA WILSON, ATTORNEY GENERAL OF CANADA, PHILLIP CARVER, ALBERT YANG, and THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO
G. BOWDEN, for the RBC Defendants
K. WATT, for the RCMP Defendants
Defendants
HEARD: In writing
REASONS FOR JUDGMENT
LEMAY J
[1] This action has been before the Courts for almost ten (10) years. I have been informally case-managing this matter for a year and a half, and a summary judgment motion is set for a floating list to be heard the week of October 3rd, 2022. The action itself is not proceeding to trial until the January, 2024 blitz list.
[2] Discoveries were finally conducted last fall. Flowing from those discoveries, I set a timetable for any motions in relation to undertakings and/or refusals to be brought. The motion was originally scheduled to be heard on February 8th, 2022. However, it was adjourned on that date as the motions judge viewed it as a long motion.
[3] Given that the undertakings and refusals issues need to be dealt with before the summary judgment motion, I determined that I would address those issues by way of written submissions. I have now received those submissions.
[4] These reasons set out the general principles underlying the decisions that I have made in respect of the items that have not been answered as well as my reasons on specific topics. The attached undertakings charts set out my disposition of each outstanding undertaking, under advisement or refusal and the charts should be read in conjunction with these reasons.
[5] In order to better understand these reasons, I will set out some background facts and then review the outstanding issues. My summary of the background facts is based primarily on the pleadings and should not be taken as binding any subsequent decision maker, especially not the judge hearing the summary judgment motion or the judge hearing any trial in this matter. Similarly, my decision as to the prima facie relevance of certain questions does not bind either the motions judge or the trial judge.
Background Facts
a) The Parties
[6] The Plaintiff, named as Sulochana Shantakumar, has passed away. When this action commenced in 2013, she was employed as a nurse in North York, where she had lived and worked since 1970. According to the Statement of Defence of the RBC Defendants, the Plaintiff’s legal name was Sulochana Shanta Kumar Mylabathula. She was seeking to borrow money from RBC in order to establish a plastics business.
[7] Ms. Shantakumar’s husband, who is now the Estate Trustee in Litigation, allegedly had expertise in the plastics industry that was going to be used in the establishment of the business. He is named in the pleadings as Santha Kumar Mylabathula.
[8] The Defendant, the Royal Bank of Canada (“RBC”) is one of Canada’s Schedule 1 banks. The Defendants Siva Gurrappadi, William Sykes, Usha Radhakrishan and Sheila Wilson were all employees of RBC at the time of the events giving rise to the Plaintiff’s claim. These parties are all being represented by Mr. Bowden. I will refer to them as the “RBC parties” throughout these reasons.
[9] The Defendants Phillip Carver and Albert Yang were both employed by the Royal Canadian Mounted Police. They are both being sued alongside of the Attorney General for Canada. I understand that the RCMP was originally a party to this action, but that the action is continuing against the two individuals and the Attorney General only pursuant to the Crown Liability and Proceedings Act R.S.C. 1985 c. C-50. These parties are all being represented by Ms. Watt. I will refer to them as the “RCMP parties” throughout these reasons.
b) The Claims
[10] The claims in this case arise from an attempt that was made by the Plaintiff and her husband to obtain financing from RBC to start a plastics business. The business was to be involved in both the manufacturing of plastics and the repair of the machinery used in the plastics extruding business.
[11] The Plaintiff’s husband allegedly had a previous banking relationship with RBC that was terminated as a result of allegedly fraudulent conduct.
[12] In late September, 2010 the Plaintiff applied for a small business loan from RBC. Both she and her husband were involved in the loan application. However, Mr. Mylabathula allegedly used the names Mr. Kumar and Mr. Shantakumar in the loan documentation.
[13] In any event, staff at RBC became suspicious of the loan request being made by the Plaintiff and conducted further investigations. These investigations ultimately led to the Plaintiff being charged criminally by the RCMP. The Plaintiff’s husband was also arrested at the same time, although he did not join the Plaintiff in bringing this action. The charges against the Plaintiff were stayed by the Crown before the trial began.
[14] The Plaintiff has commenced an action against both the RBC Defendants and the RCMP defendants. In that action, she is advancing claims for, inter alia,:
a) Negligence;
b) Negligent investigation;
c) Malicious prosecution;
d) Breach of statutory duty; and
e) Breach of the Plaintiff’s Charter rights.
[15] Flowing from these claims is a claim that the Plaintiff suffered economic loss and mental distress and that her reputation was damaged by the actions of the RBC and RCMP Defendants, acting individually and in concert. The Plaintiff also alleged that she suffered defamation as a result of the conduct of various of the Defendants.
[16] In addition, the Plaintiff is advancing a claim for punitive and aggravated damages on the basis of the allegedly dishonest, high handed and reckless conduct of the various Defendants.
[17] The Defendants deny all of the Plaintiff’s claims. Based on the pleadings, it appears that the Defendants are alleging at least that they had a good faith basis for claiming that the Plaintiff (and her husband) were engaged in a fraudulent transaction. As I have indicated, it is not necessary for me to resolve these issues at this stage. That is a task for the judge hearing either the summary judgment motion or the trial.
c) The Procedural History
[18] This action has languished for a considerable period of time. Indeed, the action was originally administratively dismissed for delay. That decision was overturned by Fowler Byrne J. on October 26th, 2018, and the action was allowed to proceed.
[19] A motion was originally brought by the Plaintiff before Bielby J. on November 28th, 2019, seeking that the Defendant’s pleadings be struck, inter alia, for lack of cooperation in moving the matter forward. That motion was resolved on the basis of a timetable that was entered on consent. The timetable was not adhered to.
[20] Then, the Plaintiff brought a further motion before me on November 16th, 2020, to, once again, strike the Defendants’ pleadings. I determined that this motion should not proceed and that the matter should be timetabled. During the course of that hearing, I required the lawyers to identify what other motions (if any) were outstanding.
[21] I was advised that discoveries had not yet taken place, even though the action was (at that time) seven years old, and that there was also an issue about whether the litigation guardian who had been appointed for the Plaintiff could actually act for her or whether he was in a conflict of interest. I timetabled this motion, set a timetable for the completion of discoveries and set a pre-trial date.
[22] The timetable for the motion to remove the litigation guardian was complied with by the Defendants but not the Plaintiff. As a result, a further appearance was required before me on March 14th, 2021, in order to amend the timetable and to address other issues. I duly amended the timetable and ordered modest costs against the Plaintiff.
[23] The motion to remove the litigation guardian itself was heard by Trimble J. in May of 2021 and a decision was rendered removing the litigation guardian on July 14th, 2021 (see 2021 ONSC 4966). This decision was appealed to the Divisional Court by the Plaintiff. Various motions and proceedings were ongoing throughout the month of August, 2021 in respect of this appeal.
[24] In early September of 2021, I was advised that the Plaintiff had passed away on August 4th, 2021, and that the action was stayed. Ultimately, an Order to continue was taken out by Plaintiff’s counsel.
[25] As a result of all of these procedural steps, the pre-trial that I had ordered for October of 2021 did not take place and the discoveries did not take place on the dates that I had originally scheduled. Further case conferences were required in order to put the action back on track.
[26] Ultimately, discoveries were held in November of 2021. I scheduled an undertakings motion to take place on February 8th, 2022. It was adjourned to a long motion date by Barnes J. The matter then came back before me, and I determined that the undertakings issues needed to be addressed before the summary judgment motion.
d) The Motion
[27] This motion concerns undertakings, refusals and under advisements given by the RBC parties and by the Plaintiff. The RCMP parties support the positions taken by the RBC parties on this motion but have not filed separate materials.
[28] As I have described in the procedural history, it was necessary to proceed with this motion in writing given the timing of the summary judgment motion. Both parties are seeking relief from the Court in respect to questions that were allegedly not answered by the other side.
[29] I directed the parties to not only file their materials on a timetable, but to provide me with charts outlining each of the undertakings. These charts were provided in Word format so that I could complete the last column of them. They are attached as Schedules “A”, “B” and “C” to this decision.
[30] I have reviewed and considered the submissions of the parties in reaching my decisions on these issues.
[31] Before turning to the specific issues, I should address one general matter. Mr. Callahan’s law clerk has provided an Affidavit in response to the RBC Defendants’ motion to satisfy undertakings. In that Affidavit, Ms. James states that RBC has not provided an Affidavit on this motion. The problem with that submission is that RBC has provided an Affidavit on the original undertakings motion. They have also specifically referred to this Affidavit in the materials that they have provided to me. There is nothing inherently wrong with continuing to rely on that material with an updated undertakings chart.
[32] This brings me to the other deficiency in the materials. Although Mr. Callahan did provide a fresh Affidavit for this motion, he did not file (or provide) the transcripts of the witnesses whose refusals he was moving on. I have obtained those from Mr. Callahan’s office and have considered them in the disposition of this motion.
The Plaintiff’s Relief
[33] The Plaintiff is seeking to obtain further answers in respect of two of the Defendants, Siva Gurrapadi and Sheila Wilson. I will deal with each examination in turn.
The Examination of Siva Gurrapaddi
[34] The only issues from this examination that remain outstanding relate to a Jason Clarke. Mr. Clarke was previously an employee of RBC. The first undertaking that was given in respect of Mr. Clarke was to determine whether Mr. Clarke was still an employee of RBC. That undertaking was answered with a no on November 4th, 2021.
[35] A second request was to provide the last known contact information for Mr. Clarke. While the RBC parties were not opposed to answering this question, they required a court order before they could do so. As a result, RBC is directed to provide this information to the Plaintiff in accordance with the timetables set out herein.
[36] The other two undertakings in respect of Mr. Clarke relate to whether he was in contact with the RCMP and, if so, what information he provided to the RCMP. In this respect, Mr. Callahan’s chart of undertakings is incomplete. Mr. Bowden undertook to ask Mr. Clarke these questions if Mr. Clarke was still an employee of RBC. Given that Mr. Clarke is not an employee of RBC and was not at the time the question was answered, no undertaking was given that requires an answer.
[37] This brings me to the question of whether RBC should be required to answer these questions in any event. Given that Mr. Clarke is no longer an employee of RBC, neither RBC nor any of the other parties can compel Mr. Clarke to provide any information. Further, there is no property in a witness. As a result, there is no basis for RBC to be required to answer these questions. The Plaintiff’s request for relief in this respect is denied.
Examination of Sheila Wilson
[38] I start by noting that Mr. Callahan’s submissions reference the Refusals by number, but that his chart does not include numbers. I have added a column with numbers to Schedule “B”, and they appear to coincide with the submissions of counsel.
[39] This brings me to the statement of Ms. Wilson referenced in the list of outstanding Undertakings. I would make two observations about this statement. First, from reading the materials, including the examinations for discovery, it appears to me that the statement has been provided and that this question has been answered.
[40] However, my second observation is that there is a process for the disclosure of documents that might be in a Crown brief, as described in D.P. v. Wagg (2004) 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.). While some (or even most) of these documents may have been disclosed by the Attorney General as a party to the action, there may still be outstanding process issues. I cannot tell that from the materials that I have. As a result, the parties are reminded that , if there are other steps to be taken to disclose any part of any Crown brief, that those steps need to be taken promptly. If any party needs to take those steps, my judicial assistant is to be contacted to arrange an appearance.
[41] The remaining items are refusals, and I will deal with them in accordance with the topics identified by Plaintiff’s counsel
Loan Related Inquiries
[42] Refusals 1, 2, 4, 11, 12 and 13 all relate to the loan documentation. Given that the loan documentation forms the basis of the claim on the part of RBC that there was fraudulent conduct, it is obviously relevant. However, counsel for the RBC Defendants raises several relevant issues in respect of this documentation that must be considered.
[43] Refusals 1, 2 and 4 relate to the knowledge of Ms. Wilson, one of the witnesses, about the loans process. The problem with the Plaintiff’s position in respect of these refusals is twofold. First, the witness actually answered the question in question #375, where she stated that she did not know the process for business loans in 2010, which is the time period when it would have been relevant. Second, counsel for the Defendant appears to be correct in his observation that Mr. Gurrappadi did have knowledge about these loans, and that his examination provided the Plaintiff with all of the necessary information about the business loans process.
[44] This brings me to refusals 11, 12 and 13. All of these refusals relate to the question of various forms used by RBC for business loans. In his initial submissions, counsel for the Plaintiff argues that these forms should be produced on the basis that the witness Ms. Wilson had taken “the position that the Plaintiff and her husband had applied for a loan when no such documentation appeared to exist.”
[45] The problem with this assertion is that counsel for the Defendant attached to his responding submissions an application for a business loan that appears to have been signed by the Plaintiff. As a result, the type of application that the Plaintiff made has been produced.
[46] Counsel for the Plaintiff has provided no explanation for why these questions need to be answered. As an example, it is not clear to me how having every type of standard form document for every type of business loan product would advance the Plaintiff’s case in any meaningful way.
[47] In addition, Plaintiff’s counsel had the opportunity to respond to counsel for the RBC Defendants position that there was a paper copy of a business loan application signed by the Plaintiff and he provided no reply. As a result, I accept (for the purposes of this motion) that a personal application was filled out by the Plaintiff in spite of counsel’s assertion to the contrary. Having accepted that fact for the purposes of this motion, the remainder of the questions are both overbroad and irrelevant. They do not need to be answered.
Refusals in Respect of the Plaintiff’s Attendance at the Branch
[48] Refusals 5, 6 and 7 deal with events in respect of Ms. Wilson’s interactions with the Plaintiff on the day that they met. The first question, #5 on the list, concerns whether Ms. Wilson was pretending to play a role when she first met with the Plaintiff. This question was refused. The problem with the Plaintiff’s insistence that the question be answered can be seen in an exchange that took place earlier in the examination, at questions 352 and 355 to 360:
- Q. I see. So, you weren’t actually the person investigating this case, that was -- I presume it was Mr. Sykes. Is that right?
A. Yes.
355 Q. In any case, you were brought in from 15 outside the bank to play a role.
A. Wasn’t brought in from outside the bank, I was within the bank.
- Q. Sorry, you were --
A. I’m an --
- Q. -- brought in from –
A. -- employee.
- Q. -- outside the branch to play a role.
A. I wasn’t playing a role. I was trying to determine facts with respect to a loan application.
- Q. Well ma’am, in any case, that’s the only -- that’s the specific role that you’re referring to, isn’t it? That the fact that Mr. Sykes to come in and act as loan advisor to Ms. Shanthakumar, right?
A. I was not acting as loan advisor to Mr. -- or Mrs. Shanthakumar, no.
- Q. What were you doing then?
A. I was trying to determine facts of the application.
[49] As a result, the question asked by Mr. Callahan at question 382 is properly refused on the basis that it was asked and answered.
[50] In terms of the other two questions, I would note that cross-examining a witness on discovery is permitted (see Rule 31.06(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as am.. However, as noted by this Court in Mayotte v. Ontario 2011 ONSC 4550 at para 42:
[42] In my opinion, Ontario properly refused to answer argumentative questions. I also include in the argumentative category several trick leading questions of the “what were you doing when you killed your spouse” variety. These trick questions pick an argument. An example is question 1820, which was: “Why has the Government not acted on the suggestion contained in p. 8 of the Judith Michael & Associates report (MAY000899) to revisit the time studies?” This question is unfair because in answering it, Ontario is either taken to admit no action was taken without actually having being asked whether it acted or not or Ontario must get into an argument about what it did or did not do.
[51] In this case, Plaintiff’s counsel was clearly arguing with the witness and when he used the phrase “to justify” both the Bank’s actions and the decision to charge the Plaintiff, there was a significant value judgment in that statement which is arguably beyond the scope of proper discovery.
[52] However, the underlying question for Refusal #7 is, in essence, what documentation and/or information did Ms. Wilson provide to the RCMP in relation to the transaction with the Plaintiff. To the extent that this question has not been answered by the RBC Defendants, it is to be answered.
Questions Relating to the Information Passed by the RBC Defendants to the RCMP
[53] According to the Plaintiff’s submissions, refusals 8, 9, 10 15 and 16 all deal with issues relating to the evidence that RBC had, when they acquired that information and when they turned it over to the RCMP. This evidence would seem to be relevant.
[54] However, on closer inspection, at least some of the questions that were asked either asked for legal conclusions or advanced legal argument. As an example, question 526 (Refusal #8) states as follows:
- Q. Thank you. Ms. Wilson, do you admit that prior to your meeting with Ms. Shanthakumar and Mr. Mylabathula at the bank branch that we’ve been referring to, you did not at that time, that meaning the RBC, did not at that time have enough evidence to ask the RCMP to charge Mr. and Mrs. Shanthakumar?
[55] This question is one that asks for Ms. Wilson to opine on the legal significance of the documentation she had collected and turned over to the RCMP. It may be that the RCMP could be asked to provide their rationale for why they charged the Plaintiff. That is not a question, however, that Ms. Wilson can answer.
[56] That being said, the neutral questions about what documentation the RBC Defendants had, when they got it and when it was turned over to the RCMP are, to the extent that they have been asked, to be answered.
[57] I have set out the general disposition of these issues in the attached chart. On my review of the discovery transcript, however, it appears that Ms. Wilson has already been asked to identify the information that was provided to the RCMP starting at approximately question 434 of her examination for discovery.
[58] To the extent that the RBC Defendants have not particularized a list of documents and other information (including Ms. Wilson’s will-say statement) that was turned over to the RCMP, they are to provide that list to Plaintiff’s counsel. However, as I said, it appears to me that this information has mostly been provided already.
Refusal in Respect of the RCMP Presence in the Branch
[59] On discovery, counsel for the Plaintiff asked a question about whether the Plaintiff had any inkling that she was being investigated for fraud while the RCMP were across the hall waiting to arrest her.
[60] There are two problems with this question. First, the previous question asked Ms. Wilson to confirm whether the Plaintiff had any idea she was under investigation for fraud. Ms. Wilson answered that question with a flat no. The second question is repetitive and is properly refused on the basis of asked and answered.
[61] Second, the way the question is phrased assumes that Ms. Wilson knew that the RCMP was going to arrest the Plaintiff. The problem with this assumption is that, two questions later, Ms. Wilson confirms that she had never had any discussions with the two officers. As a result, it is difficult to see the factual foundation for the question in any event.
[62] As a result, this question is properly refused.
The Alleged Refusal to Put Documents in Front of the Witness
[63] This is Refusal #3. In essence, Plaintiff’s counsel is complaining that the Defendant’s counsel did not put the Plaintiff’s documents in front of the Defendant during the course of the examination. It must be remembered that the examination for discovery was taking place remotely by ZOOM.
[64] Normally, this could simply be dismissed as being without any merit by making a notation to that effect on the chart. However, given both the way that this action has proceeded and the newness of electronic proceedings, I will set out a couple of points in this respect.
[65] First, this type of issue is emblematic of the way that this proceeding has been litigated. There has been a focus on minor and peripheral issues that has created a very extensive delay. Counsel should be moving the action forward, particularly since it is nearly ten years old. This is particularly true given the fact that Ms. Wilson was able, with the assistance of her counsel, find an electronic copy of the documentation. Mr. Callahan’s insistence on moving on this refusal is not a good use of the resources of either the parties or the Court.
[66] Second, it is ultimately Plaintiffs’ counsel’s responsibility to make sure that he can share his screen and/or show the witness the documents that he wishes to put to the witness. Opposing counsel is not under any obligation to assist the examining lawyer with the technological issues relating to the examining lawyer’s exam.
Conclusion
[67] My directions in respect of the examination of Siva Gurrapadi are set out in Schedule “A” to these reasons, and my directions in respect of the examination of Sheila Wilson are set out in Schedule “B” to these reasons.
The RBC Defendants’ Relief
[68] I will start by observing that there is a disagreement over what questions have and have not been answered. I would note that the Plaintiff has simply provided a bold assertion that certain groups of questions have been answered and that counsel for the RBC Defendants has responded by saying that: “most of what we seek is outstanding.” In light of this evidentiary record, it is difficult for me to determine what questions have been answered and what questions remain to be answered. As a result, in the sections below, my directions are that questions are to be answered if not already satisfactorily answered.
[69] Counsel for the RBC Defendants has divided the outstanding items into nine different topics and has included topic numbers in his chart. I will therefore follow those topic numbers in my discussion below. I begin by noting that my review of the materials indicates that counsel for the Plaintiff and counsel for the RBC Defendants are ad idem that the third and sixth set of refusals have all been addressed. I will not address those issues in my discussion.
First Set of Refusals- Mr. Mylabathula’s Previous Plastics Companies
[70] This group of refusals refers to questions in respect of Mr. Mylabathula’s previous involvement in running plastics companies. At discovery, it must be remembered that Mr. Mylabathula was answering questions as the Estate Trustee on behalf of the deceased Plaintiff.
[71] However, one of the issues that is clearly going to arise in this case, is whether Mr. Mylabathula had assisted his wife in attempting to arrange a fraudulent loan from RBC. There is no real dispute in the records before me that Mr. Mylabathula was at least assisting his wife with this loan application. Indeed, the Plaintiff’s own pleading is replete with descriptions of the interactions between Mr. Mylabathula and the RBC Defendants, particularly Mr. Gurrappadi. As a result, questions about Mr. Mylabathula’s involvement in these transactions, even if the Plaintiff were alive, would be relevant.
[72] It is also not disputed that Mr. Mylabathula pled guilty to fraud over $5,000.00 for a transaction related to a previous plastics company (see Question 458 of his Examination for Discovery). This is an action in which it is claimed that, inter alia, the Defendants (all of them) maliciously prosecuted the Plaintiff by charging her with fraud. It is also an action in which the loan was for a plastics company, the very type of business that was involved in the Plaintiff’s husband’s previous conviction for fraud.
[73] In light of those observations, it would appear that Mr. Mylabathula’s past allegedly fraudulent dealings are, at least prima facie relevant to the issues in dispute. Put another way, I anticipate that Mr. Mylabathula will testify at trial that he had considerable experience in the plastics industry and, as a result, this was clearly not an attempted fraud. I can also see an argument being made that, if RBC had only looked into the history of Mr. Mylabathula, they would have come to the conclusion that it was not attempted fraud because they would have discovered his experience and expertise.
[74] Counsel for the RBC Defendants is entitled to explore that experience, especially as it relates to allegedly fraudulent transactions. Whether this evidence is admissible before the trial judge, however, is a matter for the trial judge to determine.
[75] Counsel for the Plaintiff argues that the question relates to a plastics manufacturing business that the witness purchased from his brother thirteen years before the events giving rise to this litigation. This argument does not assist the Plaintiff in resisting the production of these documents for two reasons:
a) It does not change the rationale for producing these documents, as described in paragraph 73.
b) The question of whether the difference in time makes the previous business too remote is a question for the trial judge to determine.
[76] As a result, the questions under this topic that have not been answered are to be answered.
Second Set of Refusals
[77] This is only one question, which seeks the production of names and addresses of witnesses who allegedly stole documents relating to four plastics companies that Mr. Mylabathula ran. In his responses to the questions leading up to the refused question, Mr. Mylabathula stated:
- Q. Sir, when we come to trial, will you have any documents to show the judge that you were involved in the plastics business?
A. The documents, whatever they have, I don't know what they have, but my partners took all the documents. They destroyed my finances also. They stole money from the company and the merchandise. So if you ask me, the company is making money, yes, they are making money. That's how I sustain the company for seven years running, paying the principal and interest for all the loans which I borrowed.
[78] It is clear from these answers, and from previous questions, that part of the Plaintiff’s case will be that he successfully ran businesses in the plastics industry. He will also assert that his documents were stolen by various business partners. For the reasons set out at paragraph 73, this may very well be relevant at trial although the question of admissibility is to be determined by the trial judge.
[79] As a result, the question in respect of contact information for the various witnesses who are alleged to have defrauded Mr. Mylabathula is to be answered.
Third Set of Refusals
[80] The parties are ad idem that these have all been answered.
Fourth Set of Refusals
[81] I should start by noting that counsel for the Plaintiff alleges that all of the questions under this set of refusals have been answered. At this point, it is not clear to me whether those questions have actually been answered as counsel for the Plaintiff has not provided any particulars as to when or how these questions were answered. Counsel for the Defendant certainly takes the view that the questions have not been answered.
[82] Mr. Myabathula confirmed, in his discovery, that he had shown a list of companies that he hoped would be customers of the new business to RBC shortly before he was arrested. However, subsequent questions on the issue of whether there were any arrangements in place with these businesses to buy product from the new company if it opened were all refused.
[83] These questions should be answered if they have not already been specifically responded to. The validity of the business plan is clearly an issue in this litigation, as it goes to the question of whether the Plaintiff had a valid basis for asking for a loan. Put another way, if the Plaintiff can establish that these clients were all previous clients who were at least good prospects to work with his new company, then the claim of malicious prosecution and the other economic torts become stronger. Conversely, if RBC can demonstrate that none of these companies had ever dealt with the Plaintiff in the past or even existed, then the Plaintiff’s claims that this was a legitimate business plan are significantly weakened and so too is the Plaintiff’s position on this litigation. On that basis alone, the question is relevant.
[84] In addition, paragraphs 14 and 16 of the Statement of Claim speak to the extensive experience that Mr. Mylabathula had in the plastics industry. The customers that worked with him are a part of the experience, and the RBC Defendants are entitled to test his assertions in this regard.
[85] Counsel for RBC asserts, in his undertakings chart, that there was a refusal to “answer questions generally about these companies and his dealings, if any, with these companies.” The actual question asked, however, was narrower. It was the question as described in the previous paragraph.
[86] Normally, I would let the parties deal with the scope of reasonable follow-up questions. However, even a brief perusal of the discovery transcripts would persuade a casual observer that counsel have difficulties in getting along and in seeing eye-to-eye. Given that fact, and given the fact that this litigation has been ongoing for some period of time, I am going to set out what I view as potential reasonable follow-up questions. I am not limiting the questions that can be asked, but merely providing guidance on what appears to be reasonable.
[87] Reasonable follow-up questions to the refused question would appear to include:
a) If there were no guarantees of purchases by any of these companies, what basis did you have for believing that these companies were potential customers?
b) Whom did you know at these companies?
c) Had you had any prior dealing with these companies?
[88] Although not asked specifically, these questions appear to be relevant and reasonable follow-up. This list is provided to the parties as guidance to assist them in dealing with these issues.
Fifth Set of Refusals
[89] I should start by noting that counsel for the Plaintiff alleges that all of the questions under this set of refusals have been answered. At this point, it is not clear to me whether those questions have actually been answered as counsel for the Plaintiff has not provided any particulars as to when or how these questions were answered. Counsel for the Defendant certainly takes the view that the questions have not been answered.
[90] As I have noted above, Mr. Mylabathula was convicted of fraud in respect of the affairs of a previous plastics company. Indeed, in his answer to question 458, he acknowledges that he received probation as a result of this conviction. The fifth set of refusals relates to two questions that were posed to Mr. Mylabathula about this conviction.
[91] In my view, these questions are relevant and must be answered for the following reasons:
a) The claim that Mr. Mylabathula perpetrated a fraud on RBC was why they ended their banking relationship with him and is specifically pled in RBC’s Statement of Defence as a material fact. If Mr. Mylabathula is going to claim that he made an honest mistake, then RBC is entitled to explore that claim.
b) The Plaintiff’s claims also discuss Mr. Mylabathula’s involvement in this transaction in extensive detail. The claim of a previous fraud is relevant to whether RBC (and the RCMP) acted properly. Put another way, if Mr. Mylabathula is going to try and minimize his involvement in the previous fraud, the Defendants are entitled to test his evidence in that regard.
[92] In disposing of this issue, however, I would be remiss if I did not direct the parties’ attention to the Supreme Court’s decision in Toronto (City) v. CUPE Local 79 2003 SCC 63, [2003] 3 S.C.R. 77, in which the Supreme Court specifically discussed the re-litigation of criminal convictions in a civil action. This decision may affect what evidence can be given at trial (or on a motion) on the subject of a previous criminal conviction.
Sixth Set of Refusals
[93] The parties are ad idem that these have all been answered.
Seventh Set of Refusals
[94] The seventh set of refusals relates to three questions about what William Sykes, one of the RBC Defendants, should have done or failed to do when he was investigating the matter. All three questions were refused on the basis that they called for speculation. In his submissions on these issues, all that Mr. Callahan has done is repeat the question and his position that the answer would call for speculation.
[95] RBC argues that these questions should be answered because the Plaintiff’s position is that RBC owed it a duty of care. As a result, the Plaintiff will attempt to prove that RBC breached this duty of care by either failing to do something that they had a duty to do or by doing something that they shouldn’t have done.
[96] RBC’s position clearly encapsulates why these questions are relevant. At trial, the Plaintiff will have to explain the factual basis for the alleged breach of the duty of care. These questions are directly related to that issue and must be answered.
Eighth Set of Refusals
[97] I should start by noting that counsel for the Plaintiff alleges that all of the questions under this set of refusals have been answered. At this point, it is not clear to me whether those questions have actually been answered as counsel for the Plaintiff has not provided any particulars as to when or how these questions were answered. Counsel for the Defendant certainly takes the view that the questions have not been answered.
[98] The issue on these questions relates to the claim for malicious prosecution. On his examination, Mr. Mylabathula answered the original questions on malice as follows:
- Q. What did Ms. Wilson do that justifies an award of damages against you, Mr. Mylabathula?
A. Yeah. She took me by lying. She’s the assistant manager for the loan officer and acting in place of Mr. Siva Gurrapadi and all are well-planned, well-executed crooked plan of arresting us.
- Q. Okay ---
A. That’s what she did it.
- Q. Okay.
A. You have to listen to me first. That’s all he did it – she did it.
- Q. Cool. So we’re at, that she orchestrated a crooked plan to arrest you. That is basically what you’re saying, right?
A. That’s correct.
- Q. Okay. And are you saying that she was malicious?
A. Those things you have to ask my – my attorney.
MR. BOWDEN: Mr. Callahan, was Sheila Wilson acting out of malice?
MR. CALLAHAN: Yes.
MR. BOWDEN: And what is the evidence of malice?
MR. CALLAHAN: Who are you asking that of?
MR. BOWDEN: Your Client.
MR. CALLAHAN: I think he’s just told you that his claim is against Ms. Wilson.
BY MR. BOWDEN:
- Q. What’s the evidence of malice? Your lawyer has said ---
MR. CALLAHAN: She tried to lure him into some sort of scheme, or alleged some fraudulent scheme against him, then called the police and laid a false charge against him, knowing that it was false.
[99] RBC’s counsel then tried to get further particulars of this “crooked plan” and was told that the question had been asked and answered. I note that Plaintiff’s counsel provided a brief overview of what the plan was, but this is not sufficiently detailed.
[100] Therefore, for each one of the Defendants, Plaintiff’s counsel is required to provide the following information:
a) What material facts underly the claims for malice.
b) What documents support the claims for malice.
Ninth Set of Refusals
[101] This set of refusals is actually a single question. Counsel for RBC has asked Mr. Mylabathula to answer questions about the documents that were allegedly found in his car when the RCMP arrested him. Mr. Mylabathula has denied having any documents in his car when the RCMP arrested him.
[102] These documents were part of both the Crown disclosure and were part of the documents disclosed by the Attorney General for Canada. However, if Mr. Mylabathula is denying that these documents were found in his car, then the questions that can be asked of him are limited to questions about whether he authored the documents, was aware of their existence and the like. Those questions may be asked and must be answered.
[103] I should also address the comment made by Counsel for the Plaintiff that “we all know that the police had nothing of substance, otherwise, the charges would not have been withdrawn, right? Like let’s not be silly…” There are two problems with this statement.
[104] First, both the civil standard of proof and the test for a malicious prosecution are very different than either the criminal standard of proof or the test to obtain a conviction for fraud. Even if the charges were withdrawn, that does not mean that there was no case.
[105] Second, as counsel for the RBC Defendants notes, even if one side believes that they have a strong case, that is no basis for refusing to answer the questions. The issue of relevance is determined by the pleadings. See Svafffidi-Argentia v. Tega Homes Development 2019 ONSC 4170 at para. 17.
[106] As a result, the limited questions about whether Mr. Mylabathula knows anything about the authorship of the documents, the handwriting on them, the attachments to them and other details can be asked of him. I am expressly permitting those questions to be answered because they are relevant questions and because, on my reading of the discovery transcript, counsel for the Plaintiff would not have permitted any questions about these documents. There are some that must be answered, even if the answer is that Mr. Mylabathula alleges that he has no knowledge about the documents.
[107] My directions in respect of the examination of Mr. Mylabathula are set out in Schedule “C”.
Conclusion and Costs
[108] Given the age of this action, all of the answers that I have directed be provided are to be provided by no later than July 15th, 2022. In terms of the Order in respect of these questions and answers, the parties are expected to consult and agree upon the form and content of the Order prior to our next Court appearance on September 7th, 2022. In the event the parties are unable to agree on the form and content of the Order, I will resolve any disputes at our next appearance and parties are expected to serve and file their proposed draft Orders in advance of that appearance.
[109] It also occurs to me that counsel may be seeking to have the parties that were examined re-attend. Counsel are to discuss amongst themselves whether a reattendance is necessary and resolve both the question of who is to reattend and when that reattendance is to take place. This is to be done within ten (10) calendar days of today’s date. Failing agreement, I am to be advised and will schedule an appearance to deal with the issue. The parties will be expected to make themselves available to address this issue in July on a date when the Court is available.
[110] The RBC Defendants have been mostly successful on this motion and the Plaintiff has been relatively unsuccessful on this motion. As a result, RBC is to provide its’ costs submissions within ten (10) calendar days of today’s date. Those submissions are to be no more than two (2) double-spaced pages exclusive of bills of costs, orders to settle and case-law. If the RCMP parties are seeking costs, their costs submissions are due on the same timetable and have the same page lengths.
[111] The Plaintiff shall have ten (10) calendar days from the date that the submissions of the RBC parties are served and filed in order to provide responding submissions. Those submissions are to be no more than two (2) double-spaced pages exclusive of bills of costs, orders to settle and case-law.
[112] There are to be no reply submissions on costs without my leave. There is to be no extension on the deadlines to make costs submissions without my leave, even if that extension is on consent. The deadlines take into account the possibility of summer vacations and will not be extended in that respect even if the parties consent.
LEMAY J
Released: June 24, 2022
COURT FILE NO.: CV-13-2155-00
DATE: 2022 06 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA
Plaintiff
- and -
ROYAL BANK OF CANADA, SIVA GURRAPPADI, WILLIAM SYKES, USHA RADHAKRISHAN, SHEILA WILSON, ATTORNEY GENERAL OF CANADA, PHILLIP CARVER, ALBERT YANG, and THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO
Defendants
REASONS FOR JUDGMENT
LEMAY J
Released: June 24, 2022