Court File and Parties
COURT FILE NO.: CV-21-663995 MOTION HEARD: May 9 and 10, 2023 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Grant A. Hood Holdings Inc. et al. Plaintiffs -AND- Jacal Holdings Ltd. et al. Defendants
BEFORE: Associate Justice Abrams
COUNSEL: J. Groia/D. Sischy, counsel for the plaintiffs S. Laubman/B. Bohn, counsel for the Civiero/Hansen defendants (the “Civiero parties”) K. Scullion, counsel for the Doracin defendants
Reasons for Decision
The History of the Parties’ Dealings Giving Rise to the Plaintiffs’ Motion
[1] Messrs. Civiero and Hood worked together as business partners for approximately 16 years. In 2014, following the sale of their majority stake in their jointly owned Link-Line Group of Companies, they began investing in several joint ventures focused on land and real estate development. Together, Messrs. Civiero and Hood established Hodero Holdings Ltd. (“Hodero”) as a management company for their joint business interests. Each of Mr. Civiero and Mr. Hood is a 50% shareholder of Hodero. Of note is the fact that there is no unanimous shareholders’ agreement in place for Hodero; there are, however, unanimous shareholders agreements in place for some of the individual joint projects managed by Hodero.
[2] Mr. Civiero posits that, since the start of his relationship with Mr. Hood, he has been responsible for the day-to-day operations of his and Mr. Hood’s joint business interests, including as relate to administrative and accounting functions. Mr. Hood has contributed capital, he says, but has not played an active role in their business’ management. The evidence before me is that, until 2020 (when the relationship between Mr. Hood and Mr. Civiero began to break down), Mr. Civiero was the person with primary responsibility for managing his and Mr. Hood’s joint business interests. He did so through Hodero.
[3] From 2014-2020, the Civiero parties say, expenses of Hodero were to be (and were) allocated as between Messrs. Civiero and Hood through their respective holding companies. While Mr. Hood denies that this was so and says that all costs and expenses of Hodero were to be allocated to their joint projects and/or treated as management fees charged to specific projects, Mr. Hood’s own CFO, Mr. Morsillo, now acknowledges that expenses relating to joint projects were split between Messrs. Hood and Civiero—each paying his proportionate share (Morsillo Transcript, at Q. 284).
[4] Mr. Civiero’s use of Hodero extended to charging expenses to it that were unrelated to his and Mr. Hood’s joint business interests, i.e. expenses related to his own, separate business interests and certain personal expenses, including expenses incurred by/for family members. This was done by Mr. Civiero, he says, with Mr. Hood’s knowledge and consent. These expenses were characterized as ‘no split’ expenses in the expense reports sent to Messrs. Civiero and Hood and were paid for, fully, by Mr. Civiero alone. While Mr. Hood denies that he knew that this was so, Mr. Morsillo has admitted knowing about this arrangement (Morsillo Transcript, at Q. 305). Mr. Morsillo acknowledges that staff received expense reports and, from time to time, requested receipts/back-up--but “never [emphasis added]” for Mr. Civiero’s personal expenses (Morsillo Transcript, at QQ. 265-272 and 301-305).
[5] By April 2020, Mr. Hood advised that he wanted to part ways with Mr. Civiero and sever his financial interests and property holdings from those of Mr. Civiero. Discussions ensued, with Mr. Hood advising that Hodero would/could be retained by Mr. Civiero. [1]
[6] Messrs. Morsillo and Hood have acknowledged that, after June 2020, Mr. Hood ceased contributing any funds to the ongoing operations of Hodero (Morsillo Transcript, at Q. 216; Undertaking Response #41 of Mr. Hood). Further, and according to Mr. Civiero, Mr. Hood terminated the employment of Mr. Hansen from Hodero; removed Mr. Doracin as a consultant at Hodero, without his approval; and blocked Mr. Civiero from engaging new staff with finance and accounting experience.
[7] With Mr. Hood having stripped Hodero of accounting staff and funding, Mr. Civiero submits, and with Mr. Hood and his team never having played a significant role in the management of accounting for joint Hood-Civiero projects or in the day-to-day operations or management of Hodero (see: Morsillo Transcript, at QQ. 222, 234-236), Mr. Civiero thought it necessary to transfer the administrative and accounting responsibilities for his and Mr. Hood’s joint interests to a new company. That company is Cade Management Ltd. (“Cade”), of which Mr. Civiero is the sole owner and director. Mr. Morsillo says that he believes that Mr. Hood was aware of the transfer in the Spring of 2021 (Morsillo Transcript, at Q. 203), and evidence has been adduced as to his having been made aware of Cade by no later than July, 2021.
[8] Through Cade, staff (such as Mr. Civiero’s CFO, Mr. De Bolster) manages the ongoing business requirements of Mr. Civiero’s personal wholly-owned business activities; and, Mr. Civiero oversees and manages those companies that he owns jointly with Mr. Hood.
[9] Mr. Civiero says that, notwithstanding the breakdown in his relationship with Mr. Hood and Mr. Hood’s retreat from Hodero, he has continued to provide Mr. Hood with detailed accounting and financial information with respect to Hodero and their other jointly-owned companies. He submits that Mr. Hood enjoys greater access to financial and accounting information, today, than he did at any time prior to the breakdown in the parties’ relationship. Regular emails are sent by Mr. De Bolster in response to requests made and have been sent in response to undertakings given at Mr. Civiero’s examination for discovery. A list of what has been provided to Mr. Hood (directly or as shared with others, for him) is detailed at, inter alia, paragraphs 37, 39 and 42 of the Civiero parties’ factum. Further, Mr. Civiero has authorized MNP LLP, the external accountant for the jointly-owned companies, to provide Mr. Hood with copies of all documents, emails, texts and information in its possession (which has been confirmed to include tax and accounting records) relating to any projects, entities and/or properties in which Messrs. Hood and Civiero have a joint ownership interest.
[10] The plaintiffs deny that they have been provided with full and unfettered access to books and records (for which they claim entitlement) and say that documentary production has been made in an inconsistent and incomplete fashion and only when the Civiero parties are compelled or feel compelled to make production (such as on the eve of an impending court date, as here, with there having been a flurry of recent productions, they posit at paragraphs 4-5 of their reply factum).
The Motion
[11] By the time that this motion came on for a hearing before me, the Civiero parties had served a with-prejudice offer to settle the motion. They advise that, though the offer was made, they are not to be taken as acknowledging any of the lacunae that the plaintiffs have identified.
[12] Some of what the Civiero parties have offered is acceptable to and sufficient for the plaintiffs. Some of what they have offered is not. Appended as Schedule “B” to the plaintiffs’ reply factum is the plaintiffs’ own with-prejudice settlement offer, the terms of which the plaintiffs ask the court to impose by way of Order—this without prejudice to the relief that they are seeking by way of a judge’s motion in July of 2024.
[13] There is further relief that they seek, too, both as relates to the Civiero parties and to the Doracin defendants.
[14] My rulings in respect to what is being sought by the plaintiffs [2], as was argued before me, are set out below.
Unfettered Access to the Books and Records of Hodero and Cade—Generally
[15] There is no question but that, pursuant to s. 140(2)(a) of the OBCA, a corporation must prepare and maintain “adequate accounting records” and that, pursuant to s. 144 of the OBCA, those records are to be open to examination by any director during normal business hours of the corporation. The plaintiffs rely on these sections of the OBCA in their argument of this motion.
[16] They also rely on provisions found in the unanimous shareholders’ agreements for some of the companies jointly-owned by Messrs. Civiero and Hood. Specifically: In a number of the unanimous shareholder agreements, s. 5.1 provides for “free access at all times” during regular business hours to books of account and entries made therein. It requires that each shareholder furnish to the other(s) “correct information, accounts and statements of and concerning all transactions” relating to the corporation at issue “without any concealment or suppression”.
[17] That means, the plaintiffs say, that Mr. Hood should have access equal to that of Mr. Civiero to everything relating to Hodero and his and Mr. Civiero’s joint interests, save for (they acknowledge) privileged information/documents. This includes, they submit, online access to the books and records of the joint projects of Messrs. Civiero and Hood and full and unfettered access to all non-privileged emails on the Hodero email server.
[18] The Civiero parties point out that the relief sought on this motion is limited to having the court permit the plaintiffs access to the books and records of Hodero and Cade. There is no unanimous shareholders’ agreement in place for Hodero and provisions in a unanimous shareholders’ agreement of another company cannot be applied to it, they posit. As for Cade, Mr. Hood isn’t one of the company’s directors, officers or shareholders and, as such, he ought not to have unfettered access to its books and records. This is particularly so, given that Cade does work unrelated to the Hood-Civiero joint projects.
Particulars of What is Being Sought
A. QuickBooks Online
[19] Mr. Hood has been provided with QuickBooks files for Hodero and the companies he and Mr. Civiero jointly own—current to March 2023. The problem, from Mr. Hood’s perspective, is that he does not have, but wants, real-time online access to QuickBooks through cloud-based software. The Civiero parties respond that online access is not available for any company, save for Mayfield (with Mayfield having been moved to a cloud-based online platform in 2020).
[20] Mr. Civiero says that he is prepared to make real-time online access to all Civiero-Hood companies available through QuickBooks Online or other cloud-based platform to be agreed. He doesn’t take issue with the plaintiffs’ request (save that, he says and the plaintiffs do not say otherwise, 270 Southgate Drive Real Estate Corporation sold its assets and is not an ongoing concern, such that continued online access to this company’s records cannot be provided). But he asks that one-half of the reasonable costs of doing do be paid by the plaintiffs.
[21] The plaintiffs are prepared to pay their share of the cost of putting the QuickBooks files online, but they are not prepared to pay “any costs of…Cade, Stephen De Bolster, Dataforge, or any others working for or providing services to Cade”.
[22] To do what needs to be done, some costs will necessarily need to be incurred for the work of persons employed by or providing services to Cade. In my view, those costs ought not to be for the Civiero parties’ account alone, given that they are costs that are being incurred in respect of joint Hood-Civiero projects.
[23] The evidence before me is that Mr. Hood hadn’t accessed QuickBooks files before the breakdown of his relationship with Mr. Civiero (see: Morsillo Transcript, at Q. 255). He wants those files now. That is his right and his prerogative. But, as was the practice in respect of past Hood-Civiero joint business endeavours, all costs should be borne equally and not, disproportionately, by Mr. Civiero.
[24] The costs, as estimated by counsel for the Civiero parties, include approximately 30-40 hours of work by Cade staff at $100-$150/hour (a relatively modest amount), plus the work of a third party. This would not be the first time that any Cade costs have been paid by the plaintiffs. The evidence before me is that, at least by July 2021, Mr. Hood was aware that an agreement had been made on his behalf to pay Cade for accounting work (Hood Transcript, at Q. 57)--this as a matter of expediency.
[25] This request by the plaintiffs as relates to QuickBooks online access also raises issues of expediency. The work should be done and is work that is for the benefit of Mr. Hood qua plaintiff. It places Messrs. Civiero and Hood on equal footing. All costs are to be shared equally, at least at this time—without prejudice to any arguments as to the propriety of expenses being paid to Cade, generally, as may be made in July of 2024 or at trial.
B. Source Documents
[26] As for source documents, those that can be provided in electronic format have already been provided to the plaintiffs by the Civiero parties--dating back to 2014, Mr. Civiero says. These include bank statements for Hodero and Mr. Civiero’s T4s for Hodero. Other source documents now being sought are available in hard copy format only. They can be found at the offices of Cade.
[27] Subsection 144(1) of the OBCA requires that accounting records be open to examination by any director during normal business hours of a corporation. This, Mr. Civiero says, is what has been offered to Mr. Hood. Mr. Hood and his accounting team have been invited to make copies of any source documents they wish at Cade—but without removing any of the documents off-site. That is a reasonable offer, in my view.
[28] Mr. Civiero says further that, if Mr. Hood wishes the Hodero source documents that are in hard copy form to be converted into electronic format, Mr. Hood should share, equally, in the cost of the exercise. That suggestion, too, is reasonable.
[29] The source documents sought in the plaintiffs’ proposal at paragraph 3 are documents that the Civiero parties agree to produce, but only if they are in their possession (and with one exception). The one exception is in respect of cell phone records about which more will be said below.
[30] Documents that are not in the Civiero parties’ possession, but are within the joint control or power of Mr. Civiero and Mr. Hood, can be accessed by the plaintiffs directly (such as, for instance, tax filings and notices of assessment that are in the possession of MNP LLP).
[31] As for the request for cell phone records, it was first made in the context of this litigation. There is nothing before the court to suggest that the detailed billing/backup, as sought, is either relevant to the litigation or an accounting record that forms part of what would here be considered “adequate accounting records” to which the plaintiffs are entitled. Why do I say this? The evidence before me is that, through the years, expense reports were regularly reviewed by the plaintiffs’ accounting team. Detailed billing and backup for these records were not sought and, in any event and as discussed above, the Civiero family’s personal cell phone records were agreed to be kept private, with receipts/back-up “never” requested (Morsillo Transcript, at QQ. 265-272 and 301-305). In his examination for discovery, excerpted as Schedule “S” to Mr. Civiero’s affidavit of December 2, 2022, Mr. Hood acknowledged that Mr. Civiero’s personal expenses and Civiero family expenses were put through Hodero with his knowledge and with no expectation that they would be shared with him--which expenses included cell phone expenses. The context within which the plaintiffs’ request is now made is such that I accept that the cell phone records need not be shared—this without prejudice to the request being renewed, anon, on fresh evidence. No foundation has been laid to have them shared.
C. Hodero Email Server
[32] In seeking access to the Hodero email server, the plaintiffs acknowledge that they are not entitled to access privileged documents relating to these proceedings. As to their entitlement to access non-privileged documents, generally, they rely on Dublin v. Montessori Jewish Day School of Toronto, 2007 CarswellOnt 1663 and Beckerman v. Synthion Energy Inc., 2015 ONSC 3384. They cite from paragraph 16 of the Beckerman decision as to a director being “entitled to full disclosure of information from the corporation save and except where the director is engaged in litigation with the corporation and the information sought is subject to solicitor-client or litigation privilege”. The plaintiffs suggest that the Civiero parties’ lawyers review and vet for privilege (i.e. conduct a “privilege review”: Offer to Settle of the plaintiffs) what is on the server and/or that a forensic expert be jointly retained to do so (with oversight by the Civiero parties’ lawyers).
[33] The Civiero parties point out that s. 140 of the OBCA does not reference “all emails”. Further, they argue, there is no case law that has been proffered that would give the plaintiffs a legal right to a “broad and unbounded” scope of documentary disclosure (as sought), particularly where they have sued Hodero and are adverse in interest to it. And to suggest that the server be examined now by a forensic accountant to ensure that all non-privileged documents are produced is to say that they should bear half of the costs of having a forensic accountant review the adequacy of their own documentary disclosure (and disclosure/production of emails that has already been made). This is improper, they argue, and a cost that they are not prepared to bear—particularly given that, they depose, thousands of relevant emails sent to and from @hodero.ca email addresses have already been produced.
[34] Though the plaintiffs ask the court to apply a reasonable expectation of privacy analysis from s. 8 of the Charter of Rights and Freedoms in its consideration of their request, the Charter does not apply to private litigation (RWDSU v. Dolphin Delivery Ltd., ). But even if it did or the analysis applied in TeBaerts v. Penta Builders Goup Inc., 2015 BCSC 2008 should here apply (as the plaintiffs argue it should), the Civiero parties say that the request made for access to the email server is wholly disproportionate. And it could/would lead to more arguments and motions as to the nature/extent of what has been withheld and more cost to them alone in vetting emails again, as they say has already been done, for privilege.
[35] I understand and respect the fact that Mr. Hood wants access. Equal access. Unfettered access. The same access that Mr. Civiero enjoys. But, as Mr. Hood has questioned and I now question, access for what reason and why now?
[36] Mr. Hood asks the question because he thinks that the plaintiffs seek to “weaponize” the production of documents. I do not know whether this is so, and I make no finding in this regard. What I do know, though, is that Mr. Morsillo himself admits that access to Hodero’s emails is not required for him to review Hodero’s financial and accounting information on behalf of the plaintiffs. Neither would such a review constitute ordinary accounting practice, he says. While Mr. Civiero reminds the court that Mr. Hood never had access to the email server before (and relies on Harris c. Blais, 2022 QCCS 3846 for the proposition that this alone should be determinative—a case which the plaintiffs say is distinguishable on its facts), Mr. Morsillo’s evidence on the issue is here what is, for me, more persuasive and compelling. At QQ. 257 and 258 of his Transcript, Mr. Morsillo deposed that, from 2014 through to 2020, neither he nor his team conducted searches through the Hodero email servers to, among other things, review accounting or financial information related to Hodero or the Hood-Civiero jointly-owned projects.
[37] And while the plaintiffs say that the case of Taxplus Income Tax Preparation Inc. v. Swint, 2022 BCSC 2395, on which the Civiero parties rely, is distinguishable from the case at bar--with it involving BC (and not Ontario) business corporations legislation and with the claimant director not having been “performing any functions or duties of a director”, here Mr. Hood has not been performing any functions or duties as a director as relate to accessing the email servers. Neither he, nor anyone on his behalf, has accessed the server before now; and, Mr. Morsillo admits that there is no business need for it to be accessed now.
[38] This request is a want that raises the spectre of a collateral purpose--at least as at now and on the evidence before me. I do not say this because past practice is determinative. I understand that the trust that Mr. Hood reposed in Mr. Civiero has, in his words, “deteriorated” and what was once acceptable and sufficient for Mr. Hood may no longer be acceptable and sufficient. But I say this because no need for server access has ever been or has now been identified by the plaintiffs/Mr. Morsillo. When I look at “the totality of the circumstances”, as the plaintiffs would have me do, I cannot see (at least as at now) any legitimate business (or juridical) reason founding the request for access. The Legatt et al. v. Jennings et al. case on which the plaintiffs rely (2013 ONSC 903) does not say that access to all emails, whether or not there are any agreements as to privacy (as there are here), must be produced. That case involved accounting-specific documents, something which, Mr. Morsillo concedes, these emails aren’t.
[39] The Civiero parties say that they have produced several thousands of relevant Hodero documents (including emails) through productions in the litigation, responses to undertakings from Mr. Civiero’s examination for discovery and ordinary course of business responses to enquiries from the plaintiffs’ accounting staff. That will continue--with their having agreed, in the course of argument on this motion, to make more documents available. However, they say (and I agree, subject to my comments in paragraphs 40 and 41, below) that the plaintiffs’ blanket request for all Hodero non-privileged emails is disproportionate (even if it were to involve a third-party forensic expert paid for by the parties) and inconsistent with Mr. Hood’s own statements at his examination for discovery that he has no interest in being given access to Mr. Civiero’s (and, by extension, his family’s) private information (see: Transcript of examination for discovery of Mr. Hood, July 22, 2022, at Q. 975). They point out that the settlement proposal for the motion, made by the plaintiffs, carves out an exception for privileged information—not private information. And though no issue has been taken by the Civiero parties as to the court considering Mr. Hood’s May 8, 2023 affidavit, they say that there is no apparent bridge in the Murray contract to all emails on the email server.
[40] If there are specific documents, including emails, that are missing or thought to be missing, this can be addressed by way of an undertakings/refusals motion or a return before the court for a determination as to whether anything more/anything different needs to be done, the Civiero parties say. I think this to be a reasonable compromise, at least for now and having regard to the record that is before me. In this regard, I am content to permit the parties to return before me by way of Chambers Appointment if any further direction is required.
[41] I note, parenthetically, that the arguments as relate to Ms. Murray were not developed as fully as they might have been when this motion was argued. The plaintiffs say that they seek documents relating to the decision to terminate her employment after, they indicate, she was found to have been stealing from Hodero. While I do not accept that full access to the email server is now appropriate, to the extent that Ms. Murray’s services were funded by the plaintiffs and the acts of which she was accused involved any of the Civiero-Hood joint projects managed by Hodero, I think that such documents are relevant. If they have not yet been produced, consideration ought to be given to producing them. I would be prepared to entertain further arguments as to documentary production relating to these documents, at a later date, if agreement on the issue cannot be reached.
[42] As for Cade, and its books and records, the Civiero parties remind the court that the plaintiffs are not directors, officers or shareholders of Cade. And while the plaintiffs point to s. 248(3) of the OBCA and say that it permits the court to grant any order its sees fit where “a strong prima facie case of oppression” has been found (Zhao v. Zhao, 2017 ONSC 954), no such finding has here been made. There are competing claims of oppression on the part of Messrs. Hood and Civiero.
[43] Cade has no interest in any of the real estate investments that are jointly owned by Messrs. Hood and Civiero; records as to the accounting and management services as relate to Hood-Civiero jointly-owned companies have been provided and will continue to be (and are to continue to be) provided; and Mr. Hood continues to have access to the books and records of the jointly-owned companies. Mr. Civiero says that, as at this stage in the litigation and on the evidence before me, that is the extent of the plaintiffs’ legal entitlement as relates to Cade. I agree.
D. Service of a Further and Better Affidavit of Documents
[44] I am not persuaded that Messrs. Civiero and Hansen have failed to disclose available and relevant documents. While the plaintiffs say that What’s App/text messages have not been produced and ought to have been, there is no compelling reason to order service of supplementary affidavits of documents at this time and before the completion of Mr. Hansen’s examination for discovery. Messrs. Civiero and Hansen are aware of and are now reminded of their ongoing obligation to serve updated affidavits of documents. If there were relevant What’s App/text messages that they once had and no longer have, these ought to be listed in Schedule “C” to their respective affidavits of documents.
E. Confidentiality of Arbitration—Striking of Paragraphs 34 and 35 of Mr. Civiero’s December 2, 2022 Affidavit
[45] I agree with the Civiero parties when they say that the paragraphs reference what they believe is an unwarranted attempt to delay the resolution of the parties’ dispute by the plaintiffs. That opinion is expressed primarily in paragraph 35 and they are entitled to it. I also agree with them that, not having objected to extensive references to the conflicts arbitration in the Civiero parties’ statement of defence and counterclaim or notice of application (both of which were delivered long before Mr. Civiero swore his December 2nd affidavit herein), the foundation for the concern expressed as to confidentiality is weak.
[46] While I do not think it necessary to strike the full two paragraphs in question from Mr. Civiero’s December 2nd affidavit, I do think it appropriate that the information shared as to what the parties agreed, at first instance, would be a confidential process, be kept to a minimum. That portion of paragraph 34 that follows the words “in this court” and the two arbitration awards, appended as exhibits, are struck. They are not needed to provide context for what is set out in the first part of paragraph 34 and in paragraph 35 and, as such, need not form part of the court record.
E. Relief As Against the Doracin Defendants
[47] Mr. Hood asks to be permitted to cross-examine on the Doracin defendants’ affidavit of documents and to have the Doracin defendants serve a further and better affidavit of documents.
[48] In June of 2018, Mr. Doracin began providing consulting service to Hodero for its various land development projects, through his company DTSL. He was never a director, officer or shareholder of Hodero. DTSL’s consulting services were terminated on December 31/20. Mr. Doracin says that, before and after his services were terminated and at Mr. Hood’s request, Mr. Doracin produced thousands of documents relating to the Eighth Line Project. By March 9/21, Mr. Hood was in possession of approximately 4800 documents relating to Eighth Line, posits Mr. Doracin--none of which has been disclosed in Mr. Hood’s own affidavit of documents.
[49] Mr. Doracin submits that with Mr. Hood’s examination for discovery not yet having been completed, and with Mr. Doracin not yet having posed questions to Mr. Hood as to his involvement in, and/or his knowledge and awareness of Mr. Doracin’s activities and receipt of a loan from Hodero, and with Mr. Hood having yet to fulfill his own discovery obligations, what is being requested is improper. To this, the plaintiffs respond that there are documents that are or are expected to be in the Doracin defendants’ power, possession and control that have not been listed in an affidavit of documents and/or have not been produced.
[50] Relying on Cucina Di Paisano’s Inc. v. Paisano’s Italian Garden Café Corp., 2019 ONSC 3304, at para. 39, the Doracin defendants argue that there is no basis for the court to permit cross-examination on the Doracin defendants’ affidavit of documents--at this time. With the plaintiffs having failed to address potentially missing relevant documents during their examination for discovery of Mr. Doracin, they ought not to be able to cross-examine Mr. Doracin on the Doracin defendants’ affidavit of documents, now. I agree.
[51] If there are thought to be missing relevant documents, they can be sought by way of an undertakings or refusals motion, or questions arising out of answers to undertakings/refusals can be posed, the Doracin defendants submit. And, they submit further, if there are documents that the plaintiffs do not have that they think they should have--documents that are not relevant to the dispute as between them and the Doracin defendants but that could fill some of the gaps as relate to documentary production by Hodero--those documents should be clearly identified and Mr. Doracin should be compensated for the time required to retrieve and produce them (with such documents numbering in the tens of thousands of documents and requiring hundred of hours to produce: affidavit of Mr. Doracin, affirmed December 2, 2022, at para. 11).
[52] I agree with the Doracin defendants’ first submission as referenced in paragraph 51, above. As for the second submission, further argument would need to be made as to how/why this might be appropriate before the court can give guidance on the propriety of or mechanics of the process proposed.
[53] Further and in any event, while the plaintiffs believe that there are still What’s App/text messages that have not been and should be produced, Mr. Doracin denies that this is so. He says that he has none. There is nothing before me to suggest otherwise, as at now, or to satisfy me that something more could be done by the Doracin defendants to retrieve these messages. This is something that could be explored by way of discovery follow-up. That said, and as I directed the Civiero parties to do, I direct the Doracin defendants to list any What’s App/text messages that they once had and now no longer have in Schedule “C”.
[54] The plaintiffs point out that Mr. Doracin declined to answer any questions relating to documentary disclosure on his cross-examination in respect of this motion. The reason, Mr. Doracin says, is that leave to cross-examine on his affidavit of documents had not been sought and the plaintiffs’ cross-examination of him was really a cross-examination on his affidavit of documents. That is a fair comment, in my view.
[55] The Doracin defendants do have an ongoing obligation to update their affidavit of documents. This, they say, they are in the process of doing and this they should do. If any issues arise in that regard, I may be spoken to or the plaintiffs may renew their motion, on a fresh record.
Costs
[56] Failing agreement as to the costs of this motion, I may be asked to rule on the issue. Submissions may be made in writing or orally, as the parties may prefer. In this regard, I am to be advised, by September 29/23, if costs will be argued and, if so, what counsel’s preferred manner of proceeding to address costs is. As well, a draft Order may be sent to me, for signature, c/o my ATC, Ms. Charlebois: teanna.charlebois@ontario.ca.
August 9, 2023 Original Signed by Associate Justice Abrams
Notes
[1] “Once…information is adequately [emphasis added] shared, we can begin the process of having you take over Hodero”, Mr. Hood wrote to Mr. Civiero in an email dated December 3, 2020.
[2] Appended to Schedule “A” of the reply factum is a list of documents that, as at the time of the factum’s preparation, the plaintiffs believed were outstanding. Counsel for the Civiero parties went through each item on the list, seriatim. His comments are not memorialized herein, in that the list was not the focus of the argument made by the plaintiffs as to what more, they say, needs to be produced by the Civiero parties. If any party wishes the Civiero parties’ position as to the specific documents referenced in Schedule “A” recorded, I am to be advised and supplementary reasons will issue by August 14/23.