Court File and Parties

COURT FILE NO.: CV-14-511332 DATE: 20230419

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JAMES BAY RESOURCES LIMITED, Plaintiff

AND:

MAK MERA NIGERIA LIMITED a.k.a. MAK MERA LIMITED and ADEWALE OLORUNSOLA a.k.a. WALE SOLA, Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Hilary Book and William McLennan, for the Plaintiff Erin Chesney and David Hakim, for the Defendant

HEARD: April 11, 2023

Endorsement Re Motion in Respect of Authenticity of a Letter

[1] This decision relates to the authenticity of a photocopied letter which purports to have been written by a witness for the plaintiff, Mr. Adeni Olaniyan (“Mr. Olaniyan”), which the Defendants requested be marked as an Exhibit when Mr. Olaniyan was cross examined. The findings stated herein are with respect to these issues only. I have not made an findings of fact with respect to the claim.

[2] Some background is required to understand the issue.

[3] The plaintiff James Bay Resources Limited (“James Bay”) claims damages for breach of contract and libel as against the defendants Mak Mera Nigeria Limited (“Mak Mera”) and Adewale Olorunsola (“Mr. Sola”) (collectively the “Defendants”).

[4] James Bay’s breach of contract claim relates to contracts entered into by James Bay and Mak Mera and the subsequent fallout.

[5] One of the issues in the proceeding relates to an oil mining lease known as OML-25. James Bay contends that it made a successful bid for OML-25 through the company Crestar Integrated Natural Resources Limited (“Crestar”) in which it holds 45 % of the shares.

[6] The Defendants contend that Chief Olorunfemi, who is the Chairman of Mak Mera, was appointed a Director of Crestar and/or that he and Mak Mera played some role in James Bay acquiring the opportunity in Crestar. Among a variety of allegations, they claim that they have been unfairly cut out of the ultimate successful Crestar bid.

[7] The document in question is a letter which purports to have been written by Mr. Olaniyan dated September 20, 2013:

NOTIFICATION OF APPOINTMENT

Please be informed that at a meeting of the board of directors of Crestar Integrated Resources Limited (the company) held on the 16 th day of September 2013, a resolution was passed appointing you as a director in the company.

Kindly find attached a letter of consent to be executed and sent to the company’s registered address where this appointment is acceptable to you.” (hereinafter the “Letter”)

[8] Mr. Olaniyan was the Chief Operating Officer of James Bay Energy Limited, a wholly owned subsidiary of James Bay, and the President/CEO of Crestar.

[9] When the photocopy of the document was put to Mr. Olaniyan he gave the following evidence.

Ms. Book (James Bay’s Lawyer): I’m sorry. I know Mr. Olaniyan just keeps on raising his hand. I just want to make sure he doesn’t have an issue requiring a break:

Court. Oh

Mr. Olaniyan: No. Not a break. But…

Ms. Book: Ok. Then Mr. Olaniyan…

Court: No. No. No.

Ms. Book: Then in that case…

Court: No. No. No. You don’t get to talk to your lawyer. And if there is a question asked and there is an objection, you can make an objection, I’ll rule on it. But you, don’t be looking at anybody for, to, jus…Okay. Go ahead. Ask your questions.

Ms. Chesney (Counsel for Defendants): Thank you.

Ms. Chesney: So this is a document. And at the top it says, “Crestar Integrated Natural Resources Limited.” And it has the address of Crestar in Lagos. And it’s dated September 20 th , 2013. And at the bottom it says, “Adeniyi Olaniyan.” Mr. Olaniyan, that’s your signature at the bottom of the page?

Mr. Olaniyan: I do not write this letter thoughtless of appending my signature to it. This is total false. And I say that very, very strongly because there is no way Crestar will have written to a single director without writing to all the other directors. That’s number 1. Number 2, if you look at the bid submission and…

Ms. Chesney: Mr. Olaniyan

Mr. Olaniyan: …at the document…

Ms. Chesney: …my only…

Mr. Olaniyan:…you put..

The Court: No. You….

Ms. Chesney: My question…

The Court: You know what? Sorry. Could you just answer the questions please. Just, you, your, lawyer will have an opportunity to ask questions. But please just ask, answer the question. So what was the question?

Ms. Chesney: Is that his signature at the bottom?

The Court: Is that your signature? That’s it.

Mr. Olaniyan: It appears to be my signature. But I doubt whether that is my signature.

[10] The Defendants did not ask any further questions about the issue. The original of the Letter was not shown to Mr. Olaniyan, although it was subsequently produced by the Defendants on the last day of trial.

[11] When James Bay’s counsel re-examined Mr. Olaniyan on this issue, he gave the following answers:

Mr. McLennan: You recall being asked questions about this in cross-examination?

Mr. Olaniyan: That is…

Mr. McLennan: Had you…

Mr. Olaniyan. That’s, that is correct.

Mr. McLennan: Had you seen this document before this litigation?

Mr. Olaniyan: No. I’m seeing it for the first time.

Mr McLennan: And you were asked if that was your signature. Do you recall?

Mr. Olaniyan: yes. I was asked.

Mr. McLennan: And your answer was, that I believe, it appears to be your signature but you doubt it?

Mr. Olaniyan: Yes.

Mr. McLennan : Could you explain that?

Mr. Olaniyan: The reason why I doubt it is, number 1, in September there was inactivity in the company because we submitted a bid on August 30, and there was no activity whatsoever…

Mr. Olaniyan: And there was no activity whatsoever in Crestar as the time because the expression of interest that was submitted on August 30 was speculative. We had no idea what direction it was going to go. Everything started to gather momentum again in the company when Shell made a public announcement first week of October 2013. And that was when we started to determine who and who is going to be the directors or shareholders of Crestar and directors. So, for me to see this letter, I believe very strongly is not correct. And secondly, why I’m able to say confidently is the fact that this letter did not show any symbol of Crestar, because every letter that goes out from Crestar is on letter, letterhead. Thirdly, I know for a fact that Crestar letterhead carries the office of Crestar Integrated to be 2, number 2 Obudo Close….

Mr. Olaniyan: And lastly, I can say confidently that when in October we did appoint the directors, no letter was written to any director notifying them of appointment because everybody sat at the room where we nominated the chairman, deputy chairman, and the management staff of the company where I was appointed the CEO. So, I doubt very strongly this letter. And, and lastly, and lastly, if you look at the incorporation document as at September that this letter was purportedly written, we don’t even have directors in the company. Officially, the document you showed to me this afternoon, the [indiscernible], I mean the, the incorporation of Crestar, there was no record. The only time we approved and sent the approval for directors to, um, board of, I mean, to the Corporate Affairs Commission stamped November 18, the final day that the, the, the record that indicated the appointment of directors was notified. So, I couldn’t have written this letter as of September 13, that this letter is purportedly claims to have been written.

[12] The Defendants tendered the Letter as an Exhibit on the basis that there was some evidence that the Letter was an authentic document which had been signed by Mr. Olaniyan. James Bay objected on the basis that the Defendants had not authenticated the document given Mr. Olaniyan’s evidence when re-examined.

[13] It was Friday and I requested that the parties provide submissions on the issue the following court day.

The Defendants Document Brief

[14] When the trial recommenced, the parties agreed that I should consider the issue at a voir dire.

[15] With the consent of James Bay, the Defendants presented a Documents Brief which was uploaded to Caselines. The Defendants submitted that this Document Brief was not intended to constitute evidence in respect of the trial, but simply evidence in support of authentication of the Letter. There was no objection by James Bay regarding the contents of the Documents Brief or it being used at the voir dire. Part of the Defendants’ submission was that the Documents Brief showed that they had been unfairly surprised by Mr. Olaniyan’s evidence.

[16] This is the contents of the Document Brief.

When the Letter Was Produced

[17] The Letter was part of the Defendants productions made in December 2016 in an unsworn affidavit of documents and then in February 2017 in a sworn affidavit of documents.

[18] The fact that the Letter was produced early in the proceeding does not mean that it was authentic.

Mr. Egan’s Discovery Evidence

[19] Mr. Wayne Egan, a partner with WeirFoulds who sits on James Bay’s Board of Directors was asked about the Letter when examined for discovery in February 2017. These were the questions asked and his answers:

264 Q. So Mr. Egan, can I direct you to tab 2010 of Mak Mera’s hard copy production.

Ms. Book: So this is a document that appears to be on Crestar Integrated Natural Resources Limited Letterhead dated September 20, 2013

265 Q. That’s right. And who is the signatory, Mr. Egan?

A. The name under the signature is Adeniyi Olaniyan.

266 Q. And who is Mr. Olaniyan?

A. He is an individual who’s currently on the board of directors of James Bay.

267 Q. Okay, and at the time of this document in September 2013, what was his role?

A. With which company

[20] I note that Ms. Book answered only that the letter appeared to be on Crestar Letterhead and counsel for the Defendants did not object to Ms. Book’s answer. Mr. Egan only said that the name under the signature was Mr. Olaniyan’s. He did not identify the signature as Mr. Olaniyan’s or confirm that Mr. Olaniyan had signed the Letter. His answer is reasonably interpreted to say that the typed name under the signature was “Adeniyi Olaniyan.”

[21] Mr. Egan was later asked and gave the following answers:

274. Q. So Mr. Egan, would it be fair to say that this is a notification of appointment in which Chief Michael Olorunfemi, the addressee, is being appointed as a director of Crestar Integrated Resources Limited?

A. That appears to be what it says. Yes

275 Q. Okay, and is it not true that Chief Michael Olorunfemi was, in fact, as this document suggest, appointed as a director of Crestar pursuant to section 6 of the letter agreement?

A. I can’t recall if that appointment was pursuant to section 6 of the letter agreement.

[22] Again, Mr. Egan’s answer was only that the Letter “appear[ed]” to be a notification of appointment.

[23] James Bay subsequently delivered corrections to Q 274 of Mr. Egan’s answer which stated as follows:

Although Tab 201 of the Defendant’s Productions is a letter to Chief Olorunfemi dated September 20, 2013 and entitled “notification of appointment”, Chief Michael was not appointed as a director of Crestar.

Chief Michael was a non-executive chairman and director of James Bay Energy Nigeria.

[24] Mr. Egan’s answer did not positively identify the Letter as having actually been written by Mr. Olaniyan and while he said that it was a letter to Chief Olorunfemi entitled “notification of appointment”, all his answer did was parrot what the document produced by the Defendants said; he did not confirm that the Letter had actually been prepared or provided by Mr. Olaniyan or by Crestar. It appears that no follow up questions were asked of Mr. Egan.

[25] I add that the Defendants never sought an undertaking for Mr. Egan to ask Mr. Olaniyan if he wrote the Letter, signed the Letter and gave the Letter to Chief Olorunfemi or as to whether Crestar agreed that Mr. Olaniyan or someone at Crestar authorized the preparation of the Letter.

[26] While witnesses must be truthful, they are under no obligation at discovery to provide a more fulsome answer than the question asks, and are under no obligation to assist the other side. These are adversarial proceedings. The parties are well represented and counsel must ensure that they ask the right questions and that if the answer given does not fully address the question asked, or provide the information they seek, they follow must follow up.

[27] As well, it appears undisputed that for their part, James Bay never asked to inspect the original Letter.

Chief Olorunfemi’s Evidence At his Examination for Discovery

[28] Chief Olorunfemi was not called as a witness at trial.

[29] Counsel for James Bay had delivered a request pursuant to s.53.07 of the Evidence Act that the Defendants produce him at trial as a witness. However, up until the second week of trial when the issue of the authenticity of the Letter arose, the Defendants had not provided any substantiation of Chief Olorunfemi’s health issues.

[30] When Mr. Sola (his son-in-law) testified, he gave evidence of his observations as to Chief Olorunfemi’s health which the Defendants objected to on the basis that Mr. Sola is not a physician.

[31] After the issue arose, the Defendants produced a letter dated March 29, 2023 regarding Chief Olorunfemi’s health issues which the Defendants asserted was insufficient to establish his inability to attend trial. I am making no findings on this issue at this time. On the final day of trial, they submitted another physician’s letter regarding Chief Olorunfemi’s health. James Bay assets that these are insufficient. I have made no findings regarding this issue.

[32] In any event, James Bay consented to the Defendants submitting Chief Olorunfemi’s discovery evidence in respect of the voir dire into the authenticity of the Letter.

[33] Chief Olorunfemi’s evidence when he was examined for discovery was as follows:

Q. My question was whether you had any meetings with Shell about Crestar.

A. Look, you see, when they said they wanted to acquire OML 24 and 25, they came to me and they had to prepare a brochure consisting my name and my profile as their chairman. So they came to me and they gave me a letter that really they have appointed as the chairman of Crestar in the bid for OML 24 and OML 25.

Q. Who came to you?

A. Who came to you?

Q. Yes. You said “they” came to you.

A. Their manager in Nigeria, Mr. Adeniyi, he came to me with a letter, which I signed, you know, appointing me…and they had my profile.

Q. So you understand that you were named as chairman of Crestar with respect to the bid for OML 24 or 25?

A. Yes.

[34] However, the Letter in question was never put to Chief Olorunfemi at his discovery and he never identified it.

The Requests to Admit

[35] The parties in this case both exchanged Requests to Admit and also prepared a Joint Document Book.

[36] The final page of James Bay’s Request to Admit dated August 18, 2021 requested that the Defendants admit the authenticity of approximately 300 documents as follows: 1-235 and 1-48. The Letter was document 201 and as such, James Bay’s Request to Admit requested the admission of the authenticity of the Letter.

[37] The Defendants Response to the Request to Admit admitted the authenticity of the Letter in a paragraph that similarly set out a bundle of documents whose authenticity was admitted.

[38] The Defendants’ Request to Admit requested that James Bay admit the authenticity of a basket of documents described as letters sent and received, but did not specifically set out the Letter. James Bay’s Response to this Request to Admit was that it would not admit documents set out in this manner but required the Defendants to set out documents that it sought to obtain an admission of authenticity with respect to.

[39] The Defendants argued that James Bay’s inclusion of the document in their Request to Admit is an implicit admission of authenticity.

[40] They relied on the case Penny-Lee Campoux v Mohammed Khodabandehloo, 2021 ONCA 92 where the Court of Appeal indicates that the purpose of r. 51 is to save time and costs and narrow the facts in issue. They reference the Court’s statement that a formal admission is conclusive of the matter admitted.

[41] However, the facts in that case are not comparable. In Penny-Lee, the party who responded to the request to admit was held to its own admission. The Defendants showed me no case where a court has held that the delivery of a Request to Admit constitutes any sort of admission of the documents in the Request to Admit.

[42] I accept that the Defendants were surprised. However, had they itemized the Letter in their Request to Admit specifically, they would have received the answer as to James Bay’s position on its authenticity. James Bay’s response should have put them on notice that they should have made a request of authenticity with respect to specific documents, such as the Letter.

Other Documents

[43] The Defendants also referenced an email purportedly sent by Mr. Olaniyan to Cancap Capital (who it is agreed is Mr. Shefsky of James Bay) dated August 14, 2013 which states “You requested for the profiles of the directors of Crestar Natural Resources Limited.” The email then attaches a number of profiles and Chief Olorunfemi’s biography and picture is attached together with others. However, when Mr. Olaniyan was cross examined, the Defendants never put this document to him and it is not a part of the Joint Document Brief. In my view, it is unfair to rely on this document without having put it to Mr. Olaniyan when he was cross examined. This document does not appear in the Joint Documents Brief and it does not appear that its authenticity has been admitted although this issue will be addressed in the trial decision based upon the evidence and closing arguments.

[44] The Defendants also referenced an email sent by Chris Buncic of Rabcapital (a public fund in the UK which manages several millions of dollars in resource funds) dated April 23, 2014 which enclosed a presentation made regarding James Bay’s acquisition of OML-25. It included Chief Olorunfemi as being on the Board of Directors of Crestar Integrated. Mr. Shefsky was asked about this email at trial and testified that the information was inaccurate. He said that although he had reviewed it at the time, it had been prepared by Chris Buncic, not him. I am making no findings on Mr. Shefsky’s evidence in this regard.

[45] The Defendants also referenced an expression of interest dated August 30, 2013 which was part of the Joint Document Book. It sets out that Crestar is controlled by Chief Olorunfemi. James Bay admits that it was sent to Shell in respect of OML-25 but at trial, Mr. Shefsky also testified that the reference to Chief Olorunfemi was an error. Again, I am making no findings on Mr. Shefsky’s evidence in this regard.

[46] The August 30, 2013 and April 23, 2014 documents constitute evidence in the proceeding which may be relevant to the ultimate issues, but they do not relate to the authenticity of the Letter, as they do not involve the Letter.

The Argument

[47] In argument, the Defendants referenced Her Majesty the Queen and C.B. and A.C. 2019 ONCA 380. The Court provided the following test:

[64] The requirement of authentication applies to various kinds of real evidence. Authentication involves showing by the proponent of the evidence that the thing or item proffered really is what its proponent claims it to be:…

[65] Authentication is the process of convincing a court that a thing matches the claim made about it. In other words, it is what its proponent claims it to be. Authentication is intertwined with relevance; in the absence of authentication, the thing lacks relevance unless it is tendered as bogus. Thus, authentication becomes necessary where the item is tendered as real of documentary evidence.

[66] At common law authentication requires the introduction of some evidence that the evidence is what it purports to be…The requirement is not onerous and may be established by either or both direct and circumstantial evidence.

[48] They also referenced “Proof ad Progress Coping with the Law of Evidence in a Technological Age” (2013) 11 Can. J. L. Tech, 181, where Justice Paciocco reiterates that “evidence can be authenticated even where there is a contest over whether it is what it purports to be…. This is not because the law is disinterested in false documentation. It is simply that the law prefers to see disputes about authenticity resolved at the end of a case, not at the admissibility stage. Disputes over authenticity tend to turn on credibility and credibility is best judged at the end of the case in the context of all the evidence. Authentication for the purposes of admissibility is therefore nothing more than a threshold test requiring that there be some basis for leaving the evidence to the factfinder for ultimate decision.”

[49] James Bay’s position in respect of this issue was that although it would not agree to the Letter’s authenticity, it did not take the position that the Letter was a forgery.

[50] Counsel for Defendants argued that this is a conclusive admission of the Letter’s authenticity. In my view, there are rules for authenticity and a party can take the position that a document has not been properly authenticated without alleging the document is a forgery.

[51] Counsel for the Defendants also sought to discredit Mr. Olaniyan’s evidence that he could not have written the Letter because there was no activity in Crestar on the date of the letter. They referenced Crestar’s incorporation date of September 2, 2013.

[52] They also argued that his statement that the Letter did not carry the correct “letterhead” or address is contradicted by a resolution of Crestar’s Board which carries a header at the top and address which is identical to the header on the document sought to be introduced. They pointed out that the resolution was one of James Bay’s own productions and it was a Board Resolution which appears to have been publicly filed.

[53] The headers of these documents are the same but Mr. Olaniyan’s evidence referenced “letterhead” and counsel for James Bay pointed out documents that showed that Crestar’s letterhead was indeed different.

[54] In my view, these are credibility issues which should not be decided mid-trial.

[55] I reserved my decision.

[56] Subsequently, Mr. Wale Sola of the Defendants testified. He is Chief Olorunfemi’s son in law and President of Mak Mera. He testified that he was given a copy of the Letter by his father in law in or around 2013 by email or Whatsapp.

[57] At that point the Letter was marked as an Exhibit with James Bay’s agreement.

[58] At that point I discussed with the parties the fact that the previous issue as to whether the Letter could be marked as an Exhibit based upon Mr. Olaniyan’s testimony might be moot.

[59] At the conclusion of the trial, after the original of the Letter had been produced, I sought guidance from the parties again regarding their position in respect of whether the issue was moot or whether I should provide reasons in respect of the voir dire. They advised me that they were in my hands. I have concluded that it is important to address the issues raised by the voir dire, the Defendants’ Document Brief and whether the Letter could be marked as a trial Exhibit based upon Mr. Olaniyan’s evidence.

[60] This my decision on the matter.

[61] The Defendants argued that they were surprised by Mr. Olaniyan’s evidence because of all of the evidence cited above in their Document Brief in terms of how the action had progressed. In my view, none of the evidence in the Documents Brief addressed whether the Letter in question had been signed and sent by Mr. Olaniyan.

[62] However, upon reflection, given Mr. Olaniyan’s first answer that the signature appeared to be his, and the passage of time since 2013, the Letter could have been marked as a numbered Exhibit based upon Mr. Olaniyan’s evidence when he testified; his initial answer that the signature appeared to be his was some evidence of its authenticity for the purposes of admissibility. As set out in Her Majesty The Queen and C.B. and A.C., 2019 ONCA 380 at para 78, “Satisfaction of the evidentiary threshold for authentication..or at common law renders the evidence admissible; in other words, available to the trier of fact for ultimate evaluation. It does not follow from admissibility that the trier of fact must find that the evidence is in fact what it claims to be. What remains of the dispute after admissibility has been established relates to the weight to be assigned to the evidence. And that issue is left to the trier of fact to decide.”

[63] Regarding issue of whether the Letter was actually signed by Mr. Olaniyan and given to Chief Olorunfemi, I have not made any findings. That is an issue that must be determined in the final analysis taking into account all of the evidence. As set out in Justice Paciocco’s article, issues of authenticity often involve credibility issues which are best left to the conclusion of a case. As he said, “Authentication for the purposes of admissibility is therefore nothing more than a threshold test requiring that there be some basis for leaving the evidence to the factfinder for ultimate decision.”

Justice Papageorgiou Date: April 19, 2023