Court File and Parties

COURT FILE NO.: CV-21-661566 MOTION HEARD: 20230808 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mitrex Inc., Plaintiff AND: Alexandra Wilson aka PJ Wilson, Defendant

BEFORE: Associate Justice Jolley

COUNSEL: Charles Gastle, counsel for the moving party plaintiff Matthew Kersten, counsel for the responding party plaintiff

HEARD: 8 August 2023

REASONS FOR DECISION

[1] As I noted in my April 25 endorsement adjourning this motion to today’s date, “The dispute started as an $11,000 small claims court action by the defendant against the plaintiff to get her contract paid. She was met with this action in response and has had a damages claim of over $2,000,000 hanging over her head for more than two years. The plaintiff has done nothing to move the matter forward and has not produced any documents in support of its alleged damages.”

[2] The defendant seeks an order requiring the plaintiff to produce documents relating to its claim for $50,000 in damages for breach of contract, its claim for $2,000,000 in damages for defamation, libel and slander claim and its claim for $250,000 for aggravated and punitive damages.

Documents related to the breach of contract damages claim

[3] The plaintiff has sued the defendant for $50,000 for breach of contract. In support of its damages, the plaintiff has pleaded in its statement of claim that it “was forced to incur the expense of paying one of its own employees to complete [the marketing guideline that the defendant was allegedly to have prepared]” (paragraph 47) and, additionally, that “it was forced to incur additional costs in having other designers and consultants rectify the mistakes caused by the defendant” (paragraph 48).

[4] The plaintiff’s sworn affidavit of documents contains nothing in support of either of these heads of damages. After the defendant inquired about the sufficiency of the productions, the plaintiff produced three employment contracts and advised that it had no further documents. The defendant is skeptical of that answer in light of the plaintiff’s specific pleading that it incurred additional costs for work done by designers and consultants.

[5] To quote Galea v. Best Water Limited, 2019 ONSC 7213, at paragraph 15, “On a motion (for production of a further and better affidavit of documents or for additional documents), the moving party must prove that the subject documents exist on a balance of probabilities before an order is made that they be disclosed in a further and better affidavit of documents: see, for example, Seelster v. HMTQ and OLG, 2016 ONSC 97 at para. 46, and Apotex Inc. v. Richter Gedeon Vegyeszeti Gyar RT, 2010 ONSC 4070 at para. 119. While evidence in support of the motion cannot be based on speculation or guesswork, the level of proof required must take into account that one party has access to the documents and the moving party does not: Apotex Inc., supra at para. 119.

[6] The defendant argues that it meets the low threshold to warrant a production order because (a) the plaintiff failed to produce the employment contracts in its first affidavit of documents; and (b) the statement of claim specifically references costs for work done by “other designers and consultants” and makes a claim for damages related to the plaintiff’s payments to them.

[7] The plaintiff argues that has done a supplementary search, at the request of the defendant, and located only the three employment contracts and “has not found” others. After receipt of those three additional agreements, the defendant requested that the plaintiff confirm that it had conducted a diligent search and that no further documents were in its possession, power or control or had formerly been so. It appears that request was never answered. Plaintiff’s counsel advised on this motion that if a supplementary affidavit of documents were ordered, it would be the same as the original affidavit of documents but with the three employment agreements added.

[8] This seems to me not a difficult request then. The first affidavit is admittedly deficient. A further sworn affidavit of documents will confirm what is required by the rules - that a diligent search has been done and that all documents have been listed in the applicable schedule.

Documents related to the defamation damages claim

[9] The defendant faces a $2,000,000 defamation claim. The plaintiff has indicated that it has no documents connecting the defendant to the online reviews in question (which are the subject to the defamation suit), no documents to support damages affiliated to those negative reviews, no documents to support research or investigation that connects the defendant to the reviews and no documents that link the negative google reviews to a loss of business.

[10] The plaintiff argues that defamation damages can be actual damages, presumed damages and punitive damages. However, it has refused to confirm that its claim is only related to presumed damages and punitive damages and not actual damages, even though it has produced no documents to support that claim. That, in my view, is unfair to the defendant, in these particular circumstances. While the particulars can await discoveries, if the plaintiff is claiming actual damages, it is required to include all documents in support of that claim in its affidavit of documents. More than two years have passed since the plaintiff had issued its statement of claim. After this passage of time, it should be in a position to produce documents in support of a claim for actual damages or confirm that it has no documents that would support such a claim. That is to be done in a further affidavit of documents.

[11] The plaintiff shall deliver its supplementary sworn affidavit of documents by 15 September 2023.

Discovery Plan

[12] The defendant has proposed that a deadline of 1 February 2024 be set for the completion discoveries, unless her counsel, after reviewing the plaintiff’s supplementary affidavit of documents, advises by 15 October 2023 that he intends to bring a motion to stay this action and have it tried in small claims court. The plaintiff objects to this proposal, arguing that this could push discoveries off for a year or more.

[13] Until the defendant settles on a strategy, her motion for this discovery plan is premature. The plaintiff does not have a motion requesting discovery dates before me. The defendant can review the documents and advise the plaintiff of her position. If she is not bringing her motion, the parties should work cooperatively to fix discovery dates.

Costs

[14] Given the mixed success of the motion, I make no order as to costs. I remind the parties that this is a case that needs to move forward. If the plaintiff has the damages it alleges, it should produce the documents and move expeditiously. If this an in terrorem claim that was used to overwhelm the defendant’s $11,000 small claims court action, it is time the parties resolved the actual dispute and put this action behind them.

Associate Justice Jolley

Date: 14 August 2023