COURT FILE NO.: CV-22-00675899-0000

DATE: 20230928

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Métis National Council Secretariat Inc., Plaintiff

-and-

Clément Chartier, David Chartrand, Manitoba Métis Federation Inc., carrying on business as Manitoba Métis Federation, Wenda Watteyne, Storm Russell, Kristina Monette, Marc LeClair, LeClair Infocom Inc., Celeste McKay, Celeste McKay Consulting Inc., John Weinstein, Public Policy Nexus Group Inc., Kathy Hodgson-Smith, Infinity Research Development and Design Inc., Wei Xie and Systemway Consulting, Inc., Defendants

BEFORE: Robert Centa J.

COUNSEL: Robert B. Cohen and Emilie Lahaie, for the plaintiff

James Renihan and Alison Fung, for the defendant Clément Chartier

Rahool P. Agarwal, Niklas Holmberg, and Cole Pizzo, for the defendants David Chartrand, Manitoba Métis Federation Inc.

Shane D’Souza, Ljiljana Stanic, and Alana Robert, for the defendants Marc LeClair, LeClair Infocom Inc., Celeste McKay, Celeste McKay Consulting Inc., John Weinstein, Public Policy Nexus Group Inc., Kathy Hodgson-Smith, Infinity Research Development and Design Inc., Wei Xie and Systemway Consulting, Inc.

Ilan Ishai and Mehak Kawatra, for the defendant Wenda Watteyne

HEARD: July 28, 2023 (in writing)

ENDORSEMENT

[1] I am case managing this proceeding. The parties indicated that they had some unresolved issues related to refusals, undertakings, and questions taken under advisement at the examinations for discovery and the cross-examinations on affidavits that they agreed would also form part of the examinations for discovery. I agreed to hear the motions in writing.

[2] By way of background, the plaintiff, the Métis National Council Secretariat Inc. (“MNC”) has sued the defendants for over $15 million.[^1] To oversimplify this dispute, MNC alleges that Mr. Chartier, President Chartrand, the Manitoba Métis Federation (“MMF”), and Ms. Watteyne engaged in a plan to cause significant financial harm and injury to MNC and to confer unlawful benefits on themselves and others when they departed from the MNC. Among the parties on whom these defendants allegedly conferred these benefits are two employees (the defendants Krista Monette and Storm Russell), and a group of consulting companies. The MNC has sued both the consulting companies and the principals of those corporations. The MNC also asserts that some of the defendants were involved in an unlawful transfer and assignment of the Métis Veterans Legacy Program and the centralized, web-interfaced catalogue containing Métis historical data.

[3] MNC has asserted a large number of causes of action and seeks relief under a similarly large number of legal and equitable principles. Among the relief requested, the MNC seeks $15 million in damages and $1 million in aggravated, exemplary, and punitive damages.

[4] The defendants deny all of the allegations and, generally, assert that this entire action is a part of a broader political dispute over the representation of the Métis people.

[5] I will first address MNC’s motion to compel the following defendants to provide answers to certain undertakings, to answer questions that it submits were improperly refused, and to provide further answers to questions not properly answered on the examination of each of the following defendants:

a. Clement Chartier;

b. Wenda Watteyne;

c. Each of the consulting companies and their principals:

i. Kathy Hodgson-Smith and Infinity Research Development and Design Inc.;

ii. Marc Leclair and Leclair Infocom Inc.;

iii. Celeste McKay and Celeste McKay Consulting Inc.;

iv. John Weinstein and Public Policy Nexus Group Inc.; and

v. Wei Xie and Systemway Consulting, Inc.

d. Kristina Monette; and

e. David Chartrand and the MMF.[^2]

[6] I will address MNC’s motion on a defendant-by defendant basis, in the order set out above.

[7] I will then address the motion by the defendants President Chartrand and MMF to compel the plaintiff MNC to provide answers to certain undertakings, to answer questions that it submits were improperly refused, and to provide further answers to questions not properly answered on the examination of President Cassidy Caron, the MNC discovery representative.

General legal principles related to a refusals motion

[8] In approaching this motion, I will be guided by the applicable Rules of Civil Procedure, including rule 1.04(1.1) and Rule 29.2 (both relating to proportionality in discovery), Rule 30 (discovery of documents), and Rule 31 (examination for discovery).[^3] I will refer to these rules in more detail as I consider each of the disputes before me.

[9] Justice Perell considered in detail the principles concerning the scope of questioning on examinations for discovery in Ontario v. Rothmans Inc.[^4] Five important principles emerged from his decision:

a. Discovery questions must be relevant to any matter in issue, as defined by the pleadings.

b. An examining party must not go beyond the pleadings to find a claim or defence that has not been pleaded. This is known as a “fishing expedition” and is not permitted.

c. The extent of discovery is not unlimited, with the court having an obligation to keep it within reasonable and efficient bounds to avoid it becoming oppressive and uncontrollable.

d. A witness may be questioned for hearsay evidence because they are required at discovery to give not only his or her knowledge but his or her information and belief about the matters in issue.

e. A witness may be questioned about the party’s position on questions of law.

[10] To elaborate briefly on the relevance point, under rule 31.06(1), a person examined for discovery shall answer to the best of her or his knowledge, information and belief, any proper question that is relevant to any matter in issue in the action. Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely.[^5] Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the position of the parties.[^6]

[11] Assuming the evidence a party seeks is relevant, I must also assess the proportionality of the request. Not every relevant fact is discoverable in every case. In particular, regard must be given to the proportionality factors in rule 29.2.03 in determining whether the party is required to answer a question or produce a document, including whether:

a. the time required to do so would be unreasonable;

b. the expense associated with doing so would be unjustified;

c. requiring the party to answer the question or produce the document would cause him or her undue prejudice;

d. requiring the party to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

e. the information or the document is readily available to the party requesting it from another source.[^7]

[12] Any time that I have ordered a question to be answered or a document to be produced, I have considered the question of proportionality. In cases where the proportionality question was particularly important, I have addressed it explicitly.

Part I: MNC’s motions to compel answers from the defendants

Clement Chartier

[13] Clément Chartier had served as President of the MNC on a number of occasions, including between 1983 to 1985, and 2003 to 2014. In April 2017, he was re-elected as the President of MNC and he was serving as President when he departed MNC on September 29, 2021.

[14] MNC examined Mr. Chartier for discovery on July 26 and 27, 2023. The transcript of his examination covers 429 pages. Mr. Chartier refused to answer only six questions over those two days.

[15] MNC seeks an order compelling Mr. Chartier to answer the six refusals. MNC also moves in respect of four additional questions. I will group the similar questions together and will address them one at a time.

Relationship between Ke Ning and two defendants

[16] MNC moves for an answer to three questions about Ke Ning, which Mr. Chartier refused to answer on the basis of relevance:

587. Can you describe your relationship with Ke Ning throughout? Was it purely professional or did you have a social relationship with her as well?

588. Did you know that John Weinstein had a personal or intimate relationship with Ke Ning?”

589. but at the time that the money is advanced, did you understand that John Weinstein was in a relationship, a personal relationship, with Ke Ning?[^8]

[17] The MNC factum does not mention the name Ke Ning or the explain the relevance of these questions to the proceeding. By reading the transcript of the examination, I learned that Ke Ning was the executive assistant to Mr. Chartier from 2011 to 2021. MNC’s submissions on these refusals say this:

34. Paragraphs 39-50 of the Statement of Claim detail the relationship between the Primary Defendants, the Consultants, Employees, and other persons allegedly involved with, or related to, the Scheme. MNC maintains that establishing the nature of these relationships provides significant probative value as to the level of knowing assistance and involvement of the Consultants and Employees in the Scheme, as well as further details as to the nature of the Scheme itself.

35. The defendants…Chartier…failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the relationship of the Primary Defendants, the Consultants, the Employees, and other persons allegedly involved with or related to the Scheme: [Chartier: Refusals 1, 2, 3, and 4]

[18] MNC did not include Ke Ning among the members of the defined groups “Primary Defendants,” “Consultants,” or “Employees.” MNC did not refer to her anywhere in the statement of claim. MNC has not explained how, if at all, Ms. Ning is allegedly involved with or related to the alleged misconduct underpinning this action.

[19] Based on its pleading and the information in MNC’s factum, I cannot see how Ms. Ning’s relationship to Mr. Chartier or Mr. Weinstein is relevant to this claim.

[20] When I read the factum filed by MMF on its motion to compel answers to refused questions, I learned that MNC terminated her employment and paid her a settlement without the involvement of the defendants.

[21] Even with the benefit of the additional information provided by MMF, MNC has not persuaded me that questions it asked Mr. Chartier about Ke Ning are relevant. I decline to order Mr. Chartier to answer these questions.

Severance entitlements for Ms. Watteyne and other employees under Ontario law

[22] MNC moves for an answer to question 1037, which concerns employee severance.[^9] For context, it is helpful to set out that question and the next one:

1037. Q. And in terms of, did you have any knowledge by September of 2021 what a person like Wenda Watteyne, who had been there for the last three years or so, did you have any understanding or knowledge as to what an employee who had been fired without cause would be entitled to, as a matter of law?

MR. RENIHAN: No, I don’t think he is in a position to answer that.

MR. COHEN: Well, he has got some legal training.

1039. Q. Let me just ask you, sir, did you have any experience prior to September of 2021 in terms of understanding how the courts in Ontario calculate severance for a wrongfully terminated employee? Did you have any experience in that?

A. No.

[23] The refusal to answer question 1037 was subsequently confirmed to be on the basis that it required an answer to a legal question. Before bringing this motion, therefore, MNC knew two things:

a. that Mr. Chartier’s evidence was that he had no “experience prior to September 2021 in terms of understanding how the courts in Ontario calculate severance for a wrongfully terminated employee”; and

b. that counsel for Mr. Chartier objected to answering question 1037 on the basis that it required an answer to a legal question, which he was not in a position to answer.

[24] MNC did not engage with the substance of the objection to the question in its factum. Its only submissions on this refusal were found in paragraphs 34 and 35 of its factum, which are reproduced in paragraph [17] above.

[25] I would have found it helpful if MNC explained to me why it is appropriate to ask a fact witness for his understandings of, to use MNC’s counsel’s words, “a matter of law.” It is not self-evident how this question is appropriate or that the answer would be relevant to an issue at trial. Mr. Chartier’s understanding about the legal entitlements of a three-year employee who is terminated without cause does not appear be relevant to the relationships among the various categories of person enumerated by MNC in paragraphs 34 and 35 of its factum. It is possible that MNC could have persuaded me on these points, but it did not do so.

[26] In my view, the question was not appropriate and sought irrelevant information. I decline to order Mr. Chartier to answer question 1037.

What was President Chartrand thinking?

[27] MNC moves for an answer to questions 901 and 916, each of which asked Mr. Chartier what he thought President Chartrand was thinking when President Chartrand signed a lease.[^10] To understand the context of the refusal, it is helpful to set out the exchange beginning at question 897:

897. Q. So the lease ... just so I understood, MMF’s affiliate was the landlord at 340 Maclaren?

A. Yes.

898. Q. And so there was complete disclosure in advance to the Board of Governors that MMF had 22 some relationship to the landlord at Maclaren?

A. Yes.

899. Q. And before signing the lease with this related entity of MMF, the Board of Governors had to consider it?

A. They did consider it, yes.

900. Q. And the Board of Governors approved it. Is that right?

A. That’s correct.

901. Q. And so Mr. Chartrand signs a lease at Maclaren, he thought the safe thing to do was to get Board of Governors’ approval in advance?

MR. RENIHAN: He can’t say what Mr. Chartrand thought. …

915. Q. Okay. So that, to me, was a transaction that was not in the ordinary course. Do you agree with me?

A. Not essentially, no. It was entering into a lease agreement.

916. Q. But because of the strange nature or the nature that you described, at least Mr. Chartrand thought it would be the right thing to do to seek Board of Governors approval first. Did you understand that?

MR. RENIHAN: Let’s stay away from Mr. Chartrand’s thoughts.

[28] MNC knew that counsel for President Chartrand refused to answer questions 901 and 916 because those questions asked Mr. Chartier to comment on President Chartrand’s knowledge, information, or belief. This principle is well established, and courts have routinely upheld the refusal to answer such questions.[^11] President Chartrand was not refusing to answer other questions about the board’s approval of the lease. Counsel for Mr. Chartier’s objections were specifically directed at the questions asking Mr. Chartier to comment on what President Chartrand was thinking.

[29] MNC did not address the legal basis for the refusal. MNC submits:

36. Part of the basis for MNC’s allegation that the Primary Defendants illegally perpetrated the Scheme is that the Primary Defendants undertook several of the impugned actions described above (such as the transfer of the MVLP and Veterans Funds) without first seeking approval from MNC’s Board of Governors, which was required by MNC’s By-Laws, customs, policies and practices, the Canada Not-for-profit Corporations Act, and the common law and fiduciary duties the Primary Defendants.

37. The defendants Chartrand and MMF, Chartier, and LeClair failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the Primary Defendants acting for MNC without Board of Governor approval: [Chartier Refusals…5, 6…]

[30] MNC submits that Mr. Chartier failed to provide a proper answer to questions 901 and 916. That submission, however, presupposes that MNC asked appropriate questions. MNC’s submissions did not engage with the critical legal point: why is it appropriate to ask Mr. Chartier what President Chartrand was thinking?

[31] While it is possible that MNC could persuade me that these questions are proper, it has failed to do so. I find the questions are improper and I uphold the refusals to answer them.

Termination provisions in consulting contracts

[32] MNC moves for an answer to questions 975 and 976, which asked Mr. Chartier to comment on the termination provisions of several consulting contracts.[^12] To understand the context of the refusal, it is helpful to set out the exchange beginning at question 970:

970 Q. And so when did you first find out that there were 24-month notice provisions in these contracts?

A. I have no recollection of that.

971. Q. Was it while you were still at MNC?

A. Yes, for sure.

972. Q. And did you find that out from Mr. Chartrand or did you find out from the consultants themselves?

A. I can’t say.

973. Q. Okay. Were you at all surprised or concerned about these 24-month notice provisions when you found out about them?

A. No, not at all. If that’s what it took to keep them on and to ensure we do the best that we can in terms of federal budgets to be supportive of our people, I thought, well, that’s fine. If that’s the cost we have to pay, then that’s fine, in spite of what is happening, you know, with the other governing members being obstructionists, and you know, trying to derail the whole process.

974. Q. Had you ever heard of 24-month notice provisions in any other consulting agreements at any time while you were at MNC?

A. I have never heard ... I’m really not aware of contractual arrangements. It’s not my field of expertise. So I don’t know.

975. Q. So can I ask you would you consider that these contracts were unprecedented contracts in unprecedented times?

MR. RENIHAN: He can’t ... he just told you he doesn’t ... he isn’t familiar with the contracts and he doesn’t pay attention, and he can’t speak to whether they were precedented or unprecedented.

976. Q. Well, okay, so I’m going to ask you then ... fair enough point. I’m just saying are you familiar ... at any time being at MNC had you ever seen a five-year consulting agreement with a 24- 12 month notice of termination provision?

MR. RENIHAN: I think you already ... I think you asked them both individually and I think at both times he said he isn’t familiar with the past terms in any contract. So he hasn’t seen them, hasn’t not seen them. He doesn’t have a reference point.

977. Q. All right.

[33] In its motion record, states that these two questions were “not acknowledged.” I do not agree with MNC’s characterization of this exchange.

[34] Mr. Chartier was asked a series of questions concerning what he knew about the termination provisions in the contract. He stated that because he was not aware of the contractual arrangements and it was not his area of expertise, he did not know if he had heard of any other similar termination provisions. Counsel for MNC then asked Mr. Chartier to comment on whether he considered the contracts to be “unprecedented contracts in unprecedented times.” The problem with this question, as counsel for Mr. Chartier correctly pointed out, is that Mr. Chartier had already said that he was not aware of contractual arrangements, and it was not his field of expertise. He could not even say if he had heard of any similar provisions or not.

[35] MNC knew the basis of Mr. Chartier’s objection to answering the questions. Indeed, I note that, at the time, counsel for MNC appeared to accept both the first objection stating that counsel for Mr. Chartier had a “fair enough point” and the second objection, stating “All right” and moving on. Nevertheless, if MNC had a reason why the questions should have been answered, it was entitled to move for an answer.

[36] In its submissions, however, MNC did not address the basis of counsel’s objection. Instead, it made the same submissions in paragraphs 36 and 37 of its factum, which are reproduced at paragraph [29]. This is the same submission that MNC provided with respect to refusals 5 and 6, but those refusals engaged different objections based on completely different legal principles.

[37] In my view, Mr. Chartier’s earlier answers indicated that he could not answer question 975. Mr. Chartier could neither answer yes nor no to the question. To me, that seems to be a quintessentially unfair and improper question.

[38] It appears to me that Mr. Chartier had already answered question 976 when he answered question 974.

[39] MNC has not persuaded me that Mr. Chartier should be compelled to answer questions 975 and 976. I decline to order Mr. Chartier to answer those questions.

Would Mr. Chartier have approved a payment if he had been asked to do so?

[40] MNC moves for an answer to question 1149, which asked Mr. Chartier whether he would have approved a payment to himself at the end of his term as President if he had been asked to do so.[^13] To understand the context of the refusal, it is helpful to set out the exchange beginning at question 1147:

1147. Q. All right. Well, let’s start internally at the MNC. Did you understand that, in order for you to get this lump sum amount that was awarded to you by the PPC, that they needed your approval in some fashion?

A. No.

1148. Q. Did you understand that the bank or the payment agency, ADP, would need your approval in some fashion?

A. No.

1149. Q. All right. In any event, you would have given your approval because you were looking forward to the receipt of this money, right?

MR. RENIHAN: It’s a hypothetical. I don’t think there is any value in the question. Rephrase it.

1150. Q. That’s fine. I want to talk about the veterans program and MNC’s Contribution Agreement in respect of the veterans program, so I am going to switch gears. And you are familiar with a veterans program that was set out in a Contribution Agreement between the Federal Government and MNC?

[41] Counsel for Mr. Chartier objected to the question on the basis that it was a hypothetical question and any answer would have no evidentiary value because it required Mr. Chartier to speculate on what he would have done on a different set of facts. While there is no categorical bar on hypothetical questions on examination for discovery, the case law has developed a number of principles that limit the use of hypothetical questions.[^14]

[42] Counsel for Mr. Chartier offered counsel for MNC the opportunity to rephrase the question. Counsel for MNC declined the opportunity to rephrase the question and moved on to another area. In its factum, MNC did not explain why it did not rephrase the question at the time. In general, I think the court should be reluctant to entertain a refusals motion where the moving party was offered and declined the opportunity to rephrase a question. It is much more efficient for counsel to rephrase the question in the moment or even to ask for a short recess of the examination for discovery to reformulate the question. Counsel who decline the opportunity to rephrase a question on examination for discovery should not anticipate that the court will subsequently intervene, absent a good reason.

[43] Moreover, although MNC knew that counsel had objected to the question because it was hypothetical, MNC did not engage with the basis for the objection. MNC made no submissions on the law surrounding when a party may ask a hypothetical question. Instead, it made the same submissions in paragraphs 36 and 37 of its factum, which are reproduced at paragraph [29]. This is the same submission that MNC provided with respect to refusals 4 to 8, which counsel for Mr. Chartier made for a variety of different reasons.

[44] It is possible that MNC could have persuaded me that the question meets the test for a permissible hypothetical question, but it has not done so. I decline to order Mr. Chartier to answer question 1149.

Did Mr. Chartrand sign contracts on behalf of MNC with Ryley James

[45] MNC moves for an answer to question 1357, which asked Mr. Chartier if he had signed contracts on behalf of MNC with President Chartrand’s wife’s company, which was called Ryley James.[^15] To understand the context of the refusal, it is helpful to set out the exchange beginning at question 1351:

1351. Q. Okay. And she is attaching a document. It says, “MNC Ryley James K 60s Scoop”. And if we can pull up that document, you are going to see a consulting agreement between 1 MNC and Ryley James Financial. Do you know who Ryley James Financial is?

A. Yes.

1352. Q. And what is that entity or who is behind that entity?

A. Glorian Chartrand.

1353. Q. Okay. And do you know why she goes by the name Ryley James Financial or uses that name as ... do you know what that stands for or any connection?

A. No, I think she has been using that for, I’m not sure, 20 to 25 years.

1354. Q. Okay. And the consultation services here have something to do with the 60s Scoop reconciliation and it is a short-term contract. If you see in paragraph 3, it looks like it is for about four months or so.

A. Yes.

1355. Q. And do you recall signing contracts between MNC and Ryley James Financial from time to time?

MR. RENIHAN: So, Mr. Cohen, what’s the relevance of these contracts to anything in your claim? I can’t think of any aspect of your claim that relates to this.

1356. Well, I am exploring the relationship between Mr. Chartrand, Mr. Chartier, and Mr. Chartrand’s wife. I am just ... I don’t care. You are going to refuse or not refuse. I am going to put the question on the record.

1357. Q. Did you sign contracts on behalf of MNC with Mr. Chartrand’s wife’s company, Ryley James, from time to time?

MR. RENIHAN: So, we’ll refuse given I just don’t see the relevance.

1358. Q. Okay. And if we pull up, I think, the signed contract. Well, I’m not sure if it’s ... we’ll see if it was ever signed, but you are not going to answer it anyways. So, we’ll move on.

[46] Although MNC knew that Mr. Chartier objected to answering this question on the basis of relevance, MNC’s factum did not explain the relevance of the refused question in its factum. Instead, it relied on the submissions in paragraphs 36 and 37 of its factum, which are reproduced at paragraph [29]. MNC relied on these same submissions in support of its request that MMF answer refusals 4 to 9.

[47] I have trouble seeing the relevance of this question. Glorian Chartrand is not a defendant. Ryley James is not a defendant. Neither Glorian Chartrand nor Ryley James are named in the statement of claim. It does not appear that transactions between MNC and Ryley James are at issue in the proceeding. There is nothing in the statement of claim about the relationship between Mr. Chartier and Glorian Chartrand or Ryley James.

[48] I do not know how, if at all, Glorian Chartrand and Ryley James are allegedly involved with the alleged misconduct underpinning this action. MNC’s factum does not explain why questions about “the relationship between President Chartrand, Mr. Chartier, and President Chartrand’s wife” are relevant given the pleadings in this action.

[49] It is possible that MNC could have persuaded me that question 1357 was relevant, but it has not done so. I decline to order Mr. Chartier to answer question 1357.

Wenda Watteyne

[50] Ms. Watteyne served as the Executive Director of the MNC from December 2019 until September 2021. Ms. Watteyne was hired by MMF at the end of February 2022.

[51] Ms. Watteyne delivered a sworn affidavit of documents disclosing approximately 1,000 documents. On June 16, 2023, Ms. Watteyne delivered a supplementary affidavit of documents disclosing more than 50 additional documents.

[52] MNC examined Ms. Watteyne on March 30, 2023, for a full day. The transcript of her examination covers 221 pages. During the examination, her counsel gave two undertakings, took two questions under advisement, and refused to answer three questions. Ms. Watteyne subsequently provided answers to each of the undertakings and questions taken under advisement.

[53] MNC has requested further and better answers from Ms. Watteyne in respect of three undertakings, one question taken under advisement, and the three refusals. I will address them below.

Undertaking to produce relevant text messages and Gmail messages

[54] MNC moves for further and better answers to three undertakings given by Ms. Watteyne. In my view, counsel for Ms. Watteyne gave only two undertakings during the examination for discovery. It appears that the first undertaking has been repeated in MNC’s chart. Counsel for Ms. Watteyne gave the following undertakings:

1. to review and confirm whether the relevant text messages, if any, between Ms. Watteyne and each of Mr. Chartrand, Mr. Chartier, Marc LeClair, Wei Xie, John Weinstein, Celeste McKay, Kathy Hodgson-Smith, Storm Russell, and Kristina Monette from 2020 and 2021 have been produced, and to the extent they have not been produced, to produce the texts that are relevant to matters in issue in this litigation;[^16] and

2. to review Ms. Watteyne’s personal Gmail account to see if there are any communications between Ms. Watteyne and any of the defendants in 2020-2021 in respect of MNC or its affairs and, to the extent that such communications exist, to produce those communications that are relevant to matters at issue in this litigation.[^17]

[55] Counsel for Ms. Watteyne advises that her client conducted a diligent search of her instant messages, text messages, and emails and produced all of the relevant documents in her supplementary affidavit of documents.

[56] In its factum, MNC submits:

43. Several of the MNC Questions relate to procedural issues relevant to the litigation process and the submissions and disclosures of the defendants. For example, several of the Defendants failed to properly respond to questions regarding further disclosures that they are obligated to produce under the Rules.

44. The defendants Watteyne…failed to provide proper answers, either in full or in part, in response to MNC Questions related to procedural issues or their obligations under the Rules:

(a) Watteyne: [Undertakings 1, 2, 3]

[57] MNC’s factum does not explain in what way Ms. Watteyne’s answers to the undertakings are deficient. MNC does not identify a single document that should have been included in a complete answer to these undertakings. If, for example, the other defendants produced hundreds of relevant email messages that they exchanged with Ms. Watteyne in 2020 and 2021, MNC should have marshalled that evidence to justify its request that Ms. Watteyne take another look at her Gmail account.

[58] Instead, MNC simply states, without providing evidence or making legal submissions, that Ms. Watteyne failed to provide “proper answers” to the undertakings. I do not see any evidence of that, so I decline to order Ms. Watteyne to provide further or better answers to undertaking these undertakings.

Request to produce communications about candidacy for job at MMF

[59] MNC moves for a better answer from Ms. Watteyne to one question taken under advisement.[^18] The question and the answer are as follows:

Q. To produce all communications with the MMF with respect to Ms. Watteyne’s candidacy for the role of Chief Operating Officer of the MMF, including the offer of employment and any employment agreement that was signed.

A. Ms. Watteyne interviewed for this position in January 2022 and received an offer of employment dated February 2022. Ms. Watteyne’s redacted offer of employment and executed employment agreement are included as begdoc number WW0007164 and WW00071761. The employment agreement and the offer letter have been redacted to remove personal confidential information that is not relevant to any matter in issue in this litigation.

[60] MNC’s submissions on this answer are as follows:

34. Paragraphs 39-50 of the Statement of Claim detail the relationship between the Primary Defendants, the Consultants, Employees, and other persons allegedly involved with, or related to, the Scheme. MNC maintains that establishing the nature of these relationships provides significant probative value as to the level of knowing assistance and involvement of the Consultants and Employees in the Scheme, as well as further details as to the nature of the Scheme itself.

35. The defendants… Watteyne…failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the relationship of the Primary Defendants, the Consultants, the Employees, and other persons allegedly involved with or related to the Scheme:

(c) Watteyne:

(i) Questions taken under advisement and subsequently refused, improperly answered, or not answered in full, listed as Question Taken Under Advisement 1 in the Watteyne Undertakings and Refusals Chart;

[61] MNC’s submissions do not help me understand why it seeks a better answer. I do not know if MNC believes that there are additional communications between MMF and Ms. Watteyne regarding her candidacy that she did not produce, or that there is another employment agreement that she did not produce, or that the redaction of the personal and confidential information from the letter is inappropriate.[^19]

[62] If MNC is concerned about the redactions, I am not prepared to order production of the unredacted documents on the state of the record MNC has placed before me. MNC has not explained the extent of the redactions or why MNC thinks that the redacted information might be relevant to this proceeding. MNC did not request that Ms. Watteyne produce an unredacted version of the letter to me for my review. I do not know what information has been redacted. For example, if the redactions obscured bank account information, a social insurance number, a new home address, or information about Ms. Watteyne’s spousal and family relationships or their health, that would affect the exercise of my discretion regarding whether or not to order production.

[63] MNC has not assisted me to answer any of these questions or to know if, in fact, this is their concern. As always, I encourage counsel to work together to attempt to resolve this dispute. In the circumstances, however, I am not prepared to order a further and better answer to this question.

Ms. Watteyne’s relative level of compensation at MMF compared to MNC

[64] MNC moves for an answer to question 101, which concerns whether Ms. Watteyne’s level of compensation at MMF was similar or better to the compensation she received at MNC. Ms. Watteyne refused to answer this question.[^20] The exchange between counsel was as follows:

101. Q. Just so I know, is the level of compensation at MMF similar or better to the compensation that you were receiving at MNC?

MR. ISHAI: Sorry, how is that relevant?

MR. COHEN: Well, it’s relevant to, my view, her duty to mitigate and the ultimate compensation that she received on or about September 29, 2022.

R/F MR. ISHAI: I’m going to refuse that question because this isn’t a wrongful termination case, so I’m not sure if that applies. I’m refusing that.

[65] MNC knew that the basis of the Ms. Watteyne’s objection was the relevance of the question. MNC’s factum, however, did not address this point:

34. Paragraphs 39-50 of the Statement of Claim detail the relationship between the Primary Defendants, the Consultants, Employees, and other persons allegedly involved with, or related to, the Scheme. MNC maintains that establishing the nature of these relationships provides significant probative value as to the level of knowing assistance and involvement of the Consultants and Employees in the Scheme, as well as further details as to the nature of the Scheme itself.

35. The defendants… Watteyne…failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the relationship of the Primary Defendants, the Consultants, the Employees, and other persons allegedly involved with or related to the Scheme:

(c) Watteyne [Refusal 1].

[66] Notwithstanding the unhelpfulness of MNC’s submission, and relying on different parts of the statement of claim that MNC did not refer to in its submission, in my view the question is relevant and should be answered.

[67] First, MNC pleads in paragraphs 86 to 96 of its statement of claim that Ms. Watteyne received an inappropriate severance payment from MNC of $374,000, which is the equivalent of 24 months’ salary. MNC specifically pleads in paragraph 88(e) that she had a duty to take reasonable steps to mitigate her loss, that she breached her fiduciary duties to MNC in negotiating and accepting this payment, and that she has been unjustly enriched by the severance payment. MNC seeks a constructive trust over the severance payment and damages for the amount paid.

[68] Given the pleadings in this case, including the equitable relief sought by MNC, I cannot say that Ms. Watteyne’s salary at MMF is not relevant. Counsel for Ms. Watteyne was correct that this is not a wrongful termination case, but the statement of claim specifically pleaded a duty to mitigate (in addition to the request for broader equitable relief).

[69] Second, I disagree with Ms. Watteyne that the question sought “highly sensitive, personal information.” Employment income is routinely produced in litigation. I see no basis to conclude that Ms. Watteyne’s salary information is particularly sensitive or personal to her.

[70] I order Ms. Watteyne to answer question 101.

Request to produce and catalogue irrelevant email messages

[71] MNC asked Ms. Watteyne to catalogue irrelevant email messages and to explain why she considered them to be irrelevant. Ms. Watteyne refused to answer those questions.[^21]

[72] To understand the context of the refusals, it is helpful to set out the exchange beginning at question 335:

335 Q. And have you reviewed your – have you produced all of those text messages in your Affidavit of Documents?

MR. ISHAI: Again, Counsel, we can undertake to review whether there are any relevant texts that haven’t been produced, and if there are, we’ll produce the relevant texts.

MR. COHEN: Okay. Well, I’m looking for production of all texts with any of the defendants in 2020 or 2021 which I – and if you’re holding back any on the basis that they’re irrelevant, I’d like to know the date and the basic content of the text as to why you say it’s irrelevant.

MR. ISHAI: I don’t think I’m obligated to do that, so no.

MR. COHEN: I’d like to know if you’re holding back – I’d like to know how many text messages you’re holding back, and I’d like to know what dates those text messages are from. So I need some identity, but your undertaking – I just want to make sure I understand your undertaking right now. What are you prepared to do, Counsel?

MR. ISHAI: We’ll undertake to review the texts between Ms. Watteyne and all those people that you identified and to produce all relevant texts, texts that are relevant to the matters in issue in this litigation. That’s our obligation, and this is what we will do.

MR. COHEN: Okay. I’m asking that if you’re withholding any, I’d like to know why you say they’re irrelevant. I get it – if it’s, like, happy birthday, I get it, but if there’s anything that has to do with the interaction, the business dealings at MNC, then I’d like those produced, but I think I’ve got it on the record, and I’ve got your position as well. …

346. Q. Can you please check your personal Gmail account to see if there are any communications with any of the defendants in 2020 or 2021 or any communications in respect of MNC or its affairs, and if so, I’d ask you to produce those emails. Say they’re irrelevant. I get it – if it’s, like, happy birthday, I get it, but if there’s anything W that has to do with the interaction, the business dealings at MNC, then I’d like those produced, but I think I’ve got it on the record, and I’ve got your position as well.

MR. ISHAI: Yes, we’ll undertake to do that review. In terms of production, it’s going to be limited again to documents that are relevant to the matter at issue in this litigation.

MR. COHEN: Okay. And, again, if you’re withholding an email on the basis that – you take the position that it’s irrelevant, I’d like to know essentially the content and the date of the email and the parties to that email.

MR. ISHAI: So that’s refused.

[73] MNC knew that Ms. Watteyne objected to answering the question on the basis that they were not under any obligation to catalogue irrelevant documents or explain why they were irrelevant. MNC did not address the legal basis for its request in its factum. Instead, MNC submitted as follows:

43. Several of the MNC Questions relate to procedural issues relevant to the litigation process and the submissions and disclosures of the defendants. For example, several of the Defendants failed to properly respond to questions regarding further disclosures that they are obligated to produce under the Rules.

44. The defendants Watteyne…failed to provide proper answers, either in full or in part, in response to MNC Questions related to procedural issues or their obligations under the Rules:

(a) Watteyne [Refusals 2 and 3]

[74] I know of no authority for the proposition that a party is required to catalogue irrelevant documents and to provide an explanation of why each document is not relevant. MNC provided me with no submissions or authority for its request, which would seem to be a significant change to the law of Ontario.

[75] I see no merit to MNC’s position. I decline to order Ms. Watteyne to answer the questions underlying refusals 2 and 3.

The Consultant Defendants

[76] MNC has sued a number of corporations that used to provide consulting services to MNC as well as their principals (who only provided services through the corporate vehicle). MNC now moves for further and better answers from:

a. Kathy Hodgson-Smith, personally and on behalf of Infinity Research Development and Design Inc.;

b. Marc LeClair, personally and on behalf of LeClair InfoCom Inc.;

c. Celeste McKay, personally and on behalf of Celeste McKay Consulting Inc.;

d. John Weinstein, personally and on behalf of Public Policy Nexus Group Inc.; and

e. Wei Xie, personally and on behalf of SystemWay Consulting Inc.

[77] Each of the following corporate defendants had an agreement with Métis National Council Secretariat Inc. to provide a variety of consulting services for the following terms:

a. LeClair InfoCom Inc. from April 1, 2019, to March 31, 2024;

b. System Way Consulting Inc. from April 1, 2019, to March 31, 2024;

c. Policy Nexus Group Inc. from April 1, 2019, to March 31, 2024;

d. Infinity Research Development and Design Inc. from April 1, 2021, to March 31, 2022; and

e. Celeste McKay Consulting Inc. and MNCS Inc. from April 1, 2021, to March 31, 2022.

[78] In some cases, there were also prior agreements in place.

[79] The plaintiff has alleged that the Consultant Defendants received termination payments under these consulting agreements that amounted to unjust enrichment, knowing assistance, and knowing receipt. MNC alleges that the Consultant Defendants knew of or participated in the other defendants’ collaborative efforts to injure MNC. The Consultant Defendants have denied all of the allegations.

[80] Although they have defined themselves as the “Collateral Defendants,” I will use the more neutral term “Consultant Defendants.” I will refer to each corporation and its principal using the principal’s name, unless clarity requires otherwise.

Ms. Hodgson-Smith and Infinity Research Development and Design

[81] MNC has asked me to order Ms. Hodgson-Smith and her corporation “to provide a separate schedule of emails and texts, coded as irrelevant, including how many they are, the specific dates, and the parties to communications between 2020 and 2021, that are not listed on Schedule A.”

[82] MNC did not address in its factum the legal basis for this request. I see no merit in MNC’s request. For the reasons set out at paragraphs [71] to [74], I decline to order Ms. Hodgson-Smith and her corporation to catalogue irrelevant emails.

Mr. LeClair and LeClair Infocom

[83] MNC examined Mr. LeClair for discovery for a full day on May 18, 2023. The transcript of the examination fills 247 pages. MNC has moved for further and better answers to undertakings and questions taken under advisement, and for answers to questions refused on the examination for discovery.

Undertaking to provide any additional information before trial

[84] MNC moves for better answers to two undertakings given by counsel for Mr. LeClair.[^22] The questions and answers are as follows:

1131. Q. If there is any other information or documents Mr. LeClair intends to rely on with respect to the allegations in paragraphs 12-24 of the statement of defence, advise prior to trial.

A. We will advise prior to trial (answered June 30, 2023)

1132. Q. If the defendants intend to call any non-party witnesses, provide a summary of their anticipated evidence and their contact information.

A. We will do so on the condition that the other parties do as well, and otherwise [will] comply with our obligations under the Rules.

[85] When I first reviewed the undertaking chart containing these questions and answers, I had no idea what further or better answer Mr. LeClair could provide to the first undertaking. It appeared to me that he agreed to do exactly what counsel for MNC asked him to do.

[86] I expected that MNC’s factum would explain why it felt this answer was insufficient and, moreover, why it felt compelled to move on this answer. It did not. The factum read as follows:

23. The nature of the Contractors and Employees departure from MNC is a contentious issue in the pleadings, as MNC has alleged that their excessive severance payments, among other things, are part of the Contractors and Employees knowing assistance of the Primary Defendants in orchestrating the Scheme.

24. In response to the MNC allegations against the Contractors and Employees, several of the Defendants have alleged that the Consultants and Employees departure and subsequent severance payments was the result of the workplace culture at MNC and their respective treatment by members of MNC’s Board of Governors.

25. The defendants…LeClair…failed to provide proper answers, either in full or in part, in response to the MNC Questions relating to the circumstances leading to the Consultant and Employees departure from MNC. This includes: …

LeClair: [Undertakings 1 and 2]

[87] MNC’s factum does not explain why MNC believes that the answer provided to undertaking 1 is insufficient. I will not guess. It is possible that MNC could have persuaded me of the merit of its position, but MNC has not done so. The request for a better answer to undertaking 1 is dismissed.

[88] Similarly, I have no idea why MNC believes that the answer to the second undertaking is not appropriate. The court has interpreted rule 31.06(2) to permit a party to obtain the names and addresses of person who might reasonably be expected to have knowledge of the matters in issue, as well as a summary of the substance of the evidence, but they are not required to provide a list of trial witnesses.[^23]

[89] MNC put an express conditional limitation on its request: “if the defendants intend to call any non-party witnesses” then MNC wanted a summary of the evidence of those witnesses. MNC has not suggested that Mr. LeClair and his corporation have decided to call a non-party witness but not advised MNC of that fact. Unless Mr. LeClair and his corporation have decided to call a non-party witness, I do not see how it would be possible to provide a better answer to this question because the condition has not been fulfilled. MNC’s factum does not address this point in paragraphs 23 to 25 of its factum, which is set out above.

[90] In these circumstances, I decline to order any further or better answer to the undertaking given in response to question 1132.

Request to produce the contracts and financial records related to N4 and MMF

[91] MNC asks me to order Mr. LeClair and his corporation to produce two categories of documents:

a. “the contracts LeClair InfoCom or Mr. LeClair had with N4, MMF, or any entity associated or affiliated with MMF, from 2015 to present.”

b. “whatever financial records LeClair InfoCom or Mr. LeClair had with N4, MMF, or any entity associated or affiliated with MMF.”

[92] Mr. LeClair initially took these questions under advisement and subsequently refused to answer these questions and took the position that they were not relevant and were overbroad.[^24]

[93] In addition, MNC asked five other questions related to N4, which Mr. LeClair refused to answer on the basis of relevance.[^25]

[94] Initially, I did not see the relevance of these questions. The entity called N4 is not a defendant in this proceeding. It is not referred to in the statement of claim, which sets the parameters for what questions are relevant on an examination for discovery. N4 falls within none of the categories of Primary Defendants, Consultants, or Employees. The statement of claim does not explain how N4 might be related to any of the matters at issue.

[95] I read the transcript of Mr. LeClair’s examination for discovery and learned for myself that, according to Mr. LeClair, N4 is the construction arm of the MMF and Mr. LeClair was or is the CEO of N4.

[96] I hoped that MNC’s factum would explain how N4 relates to this proceeding. It does not. MNC’s factum states as follows:

34. Paragraphs 39-50 of the Statement of Claim detail the relationship between the Primary Defendants, the Consultants, Employees, and other persons allegedly involved with, or related to, the Scheme. MNC maintains that establishing the nature of these relationships provides significant probative value as to the level of knowing assistance and involvement of the Consultants and Employees in the Scheme, as well as further details as to the nature of the Scheme itself.

35. The defendants…LeClair…failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the relationship of the Primary Defendants, the Consultants, the Employees, and other persons allegedly involved with or related to the Scheme:

(g) LeClair: [Questions taken under advisement 1 and 2 and Refusals 1, 2, 3…6, 7…10… 11]

[97] MNC states that Mr. LeClair should be compelled to answer these questions with reference to paragraphs 39 to 50 of the statement of claim. Those paragraphs say this about Mr. LeClair and his relationships:

41. The defendant, Marc LeClair (“Marc”), is an individual who resides in the City of Chelsea, in the Province of Quebec. Marc is the sole shareholder, officer, director, alter ego and guiding mind of the defendant, LeClair Infocom.

42. Marc and LeClair Infocom were retained by MNC to act as a Senior Advisor to the MNC Executive, including to Chartier, Chartrand and Watteyne, pursuant to a Consultant Agreement with MNC dated April 1, 2019. That Consultant Agreement is governed by the laws of the Province of Ontario.

[98] Paragraphs 39 to 50 contain no other references to Mr. LeClair, his corporation, or the relationship between Mr. LeClair or his corporation and any other entity. Paragraphs 39 to 50 of the statement of claim do not help me understand why MNC believes any of its questions about N4 are relevant to his action.

[99] In contrast, Mr. LeClair provided a detailed explanation of why MNC’s requests were overly broad and sought irrelevant information. With respect to the first question, Mr. LeClair submitted:

The request is overbroad and irrelevant. It is also disproportionate in any event.

The details of Mr. LeClair or LeClair Infocom Inc.’s contracts with N4, MMF, or any company associated or affiliated with MF are not relevant to the claims in this litigation. The plaintiff’s claims against Mr. LeClair or LeClair Infocom Inc. essentially concerning the final consulting contract LeClair Infocom Inc. entered into with the plaintiff. In particular, the plaintiff alleges that the termination provision in the LeClair Infocom Inc.’s final consulting contract with MNCS Inc. was unreasonable, that Mr. LeClair was a party to a scheme to cause financial harm another injury to the plaintiff, that Mr. LeClair and/or LeClair Infocom Inc were unjustly enriched by the consulting agreements, and/or that the receipt of the termination payment constituted a knowing assistance in breach of trust or knowing receipt in breach of trust. The question refused is not relevant to any of these issues.

[100] Mr. LeClair reiterated these submissions with respect to the second question, explaining that given the pleading and its focus on the final consulting contract, the financial records sought by MNC were not relevant.

[101] Mr. LeClair’s submissions on this point are compelling. I cannot see the relevance of MNC’s requests, and its factum provided me with no meaningful assistance. Moreover, the request seems disproportionate given the issues in dispute in this proceeding. I decline to order Mr. LeClair to answer these questions.

Request for financial records related to work for the federal government from 2016 to 2022

[102] MNC asks me to order Mr. LeClair to produce “whatever financial records Mr. LeClair has in terms of work that either he or his company have done for the federal government from 2016 to the end of 2022.”[^26]

[103] Mr. LeClair provided a partial answer to this question. He advised that he did not work for the federal government between April 2019 and September 2021, which was the period of the consulting agreement described in paragraph 42 of the statement of claim. Mr. LeClair refused to answer the question with respect to the periods of time from 2016 to 2019 and 2021 to 2022, asserting that those time periods are not relevant to the litigation.

[104] Based on my initial review, the questions seemed irrelevant to the matters at issue in the statement of claim. MNC made no submissions explaining why Mr. LeClair’s response was inadequate or the how financial records relating to work done for the federal government in periods other than the one covered by the contract pleaded by MNC could be relevant to this action. MNC’s submissions were limited to paragraphs 34 and 35 of its factum, which are reproduced at paragraph [96]. These submissions do not help me understand the relevance of these specific questions.

[105] It is possible that MNC could have persuaded me of the relevance of the documents sought through these questions, but it has not done so. I decline to order a further or better response to the question taken under advisement, partially answered, and identified as under advisement 3.

What search terms did Mr. LeClair’s counsel use to search for relevant email messages

[106] MNC asks me to order Mr. LeClair “to provide an explanation as to what search terms [Mr. LeClair’s counsel] McCarthy Tétrault used” to search for and identify relevant email messages that were included in the affidavit of documents. The question arose because it became clear at the discovery that other parties had produced emails between themselves and Mr. LeClair, but Mr. LeClair had not produced those emails. Mr. LeClair took that question under advisement.[^27]

[107] On July 21, 2023, Mr. LeClair produced additional email records and the following explanation in response to the question taken under advisement:

Mr. LeClair’s e-mail addresses were searched for all records relevant to the allegations. Searches were broadly structured and the resulting set reviewed.

Supplementary productions for Mr. LeClair, including e-mail records, were produced on July 21, 2023, pursuant to Mr. LeClair’s production obligations under the Rules, prior to the delivery of the plaintiff’s motion materials. The search terms applied to Mr. LeClair’s e-mail included “Contract”, OR “Amend”, or “Resign*”, OR “Quit”, OR “Terminat*”

During his discovery, Mr. LeClair testified that he routinely cleans up his emails and texts so he does not surprising that another party may have possession of a document that Mister LeClair does not.

[108] MNC made the following submissions in support of its request that I order a better answer than the one provided by Mr. LeClair:

43. Several of the MNC Questions relate to procedural issues relevant to the litigation process and the submissions and disclosures of the defendants. For example, several of the Defendants failed to properly respond to questions regarding further disclosures that they are obligated to produce under the Rules.

44. The defendants Watteyne…failed to provide proper answers, either in full or in part, in response to MNC Questions related to procedural issues or their obligations under the Rules: [Leclair: Question Taken Under Advisement 4]

[109] In a footnote, MNC stated that:

Question Taken Under Advisement 4 in the LeClair Undertakings and Refusals Chart is with respect to the fact that no emails were produced by LeClair as part of their Affidavit of Documents, but emails that LeClair was copied on, or were from or to LeClair, were produced by the other parties. Question Taken Under Advisement 4 is seeking an answer as to why LeClair failed to produce these emails, or any emails, as it suggests that he failed to comply with his obligations under the Rules of Civil Procedure.

[110] It appears that the MNC factum does not reflect Mr. LeClair’s supplementary productions made on July 21, 2023.

[111] MNC did not make any submissions regarding why Mr. LeClair’s answer provided on July 21, 2023, is not sufficient. In such circumstances, I am not prepared to require a further and better answer to this question.

Why was Mr. LeClair’s compensation reduced in 2021?

[112] At the examination for discovery, Mr. LeClair stated that his compensation was reduced in 2021, “partly because of COVID,” but refused to answer the question “Why else was it reduced?”[^28]

[113] Mr. LeClair has subsequently confirmed that there was no other reason than “COVID” for the reduction in his compensation in 2021. I do not see any reason to order a further answer.

What type of MMF business has Mr. LeClair discussed with President Chartrand in the last six months?

[114] MNC moves for an order to compel Mr. LeClair to answer the questions “what type of MMF business [he] discussed with President Chartrand in the last six months?” Mr. LeClair refused to answer this question on the basis of relevance.[^29]

[115] Initially, I did not see the relevance of a conversation that took place nearly two years after the termination of the contract at issue and after MNC issued the statement of claim.

[116] MNC might have been able to persuade me of its relevance, but it made no submissions on this point other than the generic submissions found in paragraphs 34 and 35 of its factum, which is reproduced at paragraph [96] above.

[117] In these circumstances, I do not order Mr. LeClair to answer this question.

Philosophical differences Gerald Morin in the 1990s

[118] Mr. LeClair gave evidence at his examination for discovery that Gerald Morin was President of the MNC for about ten years in the 1990s. Mr. LeClair also gave evidence that he left the MNC during that period of time. MNC then asked two further questions, which Mr. LeClair refused to answer on the basis of relevance.[^30] MNC asked these questions:

a. “And did you have some sort of acrimony with Mr. Morin or why did you stop working at MNC during the years he was the president”

b. “Did you have some sort of philosophical differences with Mr. Morin?”

[119] MNC might have been able to persuade me of the relevance of these questions, but it made no submissions on this point other than the generic submissions found in paragraphs 34 and 35 of its factum, which are reproduced at paragraph [96] above. Those submissions do not explain the relevance of these questions, which probe relationships in the 1990s, several decades before the matters at issue in this litigation.

[120] In these circumstances, I do not see how answers to these questions would provide any relevant information. I uphold the refusals to answer these questions.

Request to produce irrelevant email messages

[121] MNC requests that I order Mr. LeClair to produce “all of [his] email exchanges with Mr. Chartier, President Chartrand, Ms. Watteyne, Mr. Weinstein, and Ms. Xie or any of these people from 2019 right through 2021.” After counsel for MNC asked this question, counsel for Mr. LeClair responded that “All relevant emails have been produced based on the pleadings.” Counsel for MNC responded “So, I’ll take that as a refusal.”[^31]

[122] If Mr. LeClair has already produced relevant email messages, MNC is asking me to order Mr. LeClair to produce email messages that he and his counsel have determined to be irrelevant. For the reasons set out at paragraphs [71] to [75], I will not do so.

Request to provide Mr. LeClair’s client list from the 1990s

[123] MNC requests that I order Mr. LeClair to provide a list of his clients from the 1990s.[^32] In order to understand the context for this question, it is helpful to set out the questions that led to this refusal and the exchange between counsel:

132. Q. All right. And then, after articling, what did you do professionally?

A. I worked as a consultant ever since.

133. Q. And in terms of working as a consultant, what type of work did you consult on?

MR. D’ SOUZA: Sorry, can we narrow down the period, or are you asking for the last 30 years?

134. Q. Well, yes, over the last 30 years, did you develop some expertise in a certain field, whether it was on Aboriginal rights, whether it was on policy, whether it was on technology? What did you feel qualified to act as a consultant on? What types of topics?

A. All of those.

135. Q. Okay. So, you developed expertise in Aboriginal affairs?

A. Yes.

136. Q. All right. And how did you develop that?

A. Well, through the clients I worked for.

137. Q. Okay. And so, who were your clients back in the early 1990s?

A. Well ...

MR. D’ SOUZA: Hold on.

THE DEPONENT: ... what’s he doing?

MR. D’ SOUZA: I know, just hold on. Why does that matter? Is there some issue with his expertise, because I don’t see that pleaded.

138. MR. COHEN: I don’t think I need to plead it. I think it was this witness who pleaded that he was instrumental in all sorts of events pertaining to the Métis and the permanent bilateral mechanism, and the Charter and all of that stuff. So ...

MR. D’ SOUZA: Is that being disputed? Because I don’t see a reply disputing that.

139. MR. COHEN: The fact that I don’t reply to it doesn’t mean I admit it. The Rules don’t provide that. I’m entitled to challenge whatever is pleaded in his defence.

MR. D’ SOUZA: Are you challenging his expertise?

140. MR. COHEN: Yes. I’m challenging his expertise.

MR. D’ SOUZA: Well, I’m not sure why the names of his clients move the needle on that point.

141. MR. COHEN: All right.

[124] In its factum, MNC does not attempt to explain how this question sought to elicit relevant information. MNC simply states, in paragraph 45 of its factum that Mr. LeClair “failed to provide proper answers to MNC questions that…are directly relevant to the issues in the proceeding.” I disagree. Not only is this question not “directly relevant,” it is difficult to see how it could be remotely relevant.

[125] Even if MNC wishes to challenge Mr. LeClair’s expertise, presumably that would be in the context of the contract at issue in this proceeding. That contract ran from April 1, 2019 to March 31, 2024. I see no reason Mr. LeClair’s client list from the 1990s, almost 30 years ago, would shed light on that question. To shift the context only slightly, if one wanted to challenge the expertise of a 30-year lawyer in 2019, would it be relevant to ask that lawyer for a list of their clients from the early 1990s? I don’t think so.

[126] In my view the question seeks an irrelevant answer and need not be answered.

How many MNC lead negotiators were involved in the 2005 Kelowna Accord?

[127] Mr. LeClair testified that he was one of the lead negotiators for the MNC in the year-long run-up to the Kelowna Accord, which was signed in November 2005. He named one of the other lead negotiators, but said he could not remember the names of the others. Mr. LeClair then refused to answer the MNC question “How many others were lead negotiators?” on the basis of relevance.[^33]

[128] MNC moves to compel Mr. LeClair to answer this question. MNC made the following submission in support of its request that I order Mr. LeClair to answer this question: “The defendants…LeClair, failed to provide proper answers, either in full or in part, in response to MNC questions that, while not falling under the issue categories above, are directly relevant to the issues in the proceeding.” MNC offered no further explanation of how the number of lead negotiators on the 2005 Kelowna Accord is “directly relevant” to the events at issue in this litigation.

[129] In my view, the answer to this question is not “directly relevant,” or even remotely relevant, to the action set out in the statement of claim. Indeed, I find it difficult to see how this answer would be remotely relevant to the statement of claim. I decline to order Mr. LeClair to answer question 179.

Did Mr. LeClair work for the federal government after he stopped working for the MNC?

[130] Mr. LeClair testified that he did not do any work for the federal government in 2019, 2020, or up until September 30, 2021, when he stopped work on behalf of the MNC. Mr. LeClair refused to answer the question “Did you pursue any work with the federal government after that time.”[^34]

[131] MNC made the following submission in support of its request that I order Mr. LeClair to answer this question: “The defendants…LeClair, failed to provide proper answers, either in full or in part, in response to MNC questions that, while not falling under the issue categories above, are directly relevant to the issues in the proceeding.”

[132] I do not see the relevance of this question given the matters at issue in this proceeding. For the reasons set out in paragraphs [102] to [105], I decline to order Mr. LeClair to answer this question.

Would the 2019 Board of Governors never have approved a five-year consulting contract?

[133] MNC asks me to order Mr. LeClair to answer “whether it was [his] knowledge, information, or belief that in 2019 the Board of Governors would never have approved a five year contract for any of the consultants.”[^35]

[134] To understand the context for this question and basis for this refusal, it is helpful to set out some of Mr. LeClair’s other evidence on related issues.

[135] Mr. LeClair gave evidence on the examination that he had not seen situations where the MNC Minister of Finance sought the Board’s approval for collaboration before binding MNC to a contract with the federal government or a third party. He stated that he never spoke to Mr. Chartier or President Chartrand about seeking Board approval before the MNC entered into contracts. His evidence was very clear. To his knowledge, the Board had no role in approving contracts:

664. Q. As of 2019, were you aware of any situations where the Board of Governors had approved a five-year contract with a consultant?

A. I don’t understand the question.

665. Q. Okay. I’ll try it again. Prior to 2019, were you aware of any situation where the Board of Governors had approved a five-year contract with an MNC consultant?

A. No, it wasn’t their role.

666. Q. Prior to 2019, were you aware of any situation where the Board of Governors of MNC had approved a consultant contract with a 24-month severance provision?

A. No, it wasn’t their role.

MR. D’ SOUZA: Have they ever approved any contract ...

THE DEPONENT: No. Any contracts, no.

[136] Counsel for MNC returned to this issue and Mr. LeClair remained steadfast that, to the best of his knowledge, the Board had no role in approving contracts:

674. Q. So, isn’t it fair to assume that you knew that if you had sent a five-year contract to the Board of Governors, they wouldn’t approve that, would they?

A. That wasn’t their role.

675. Q. You keep saying that, and I understand that’s your position.

A. Well, it’s a hypothetical situation, and it’s not a real world question.

[137] After an exchange between counsel, counsel for MNC asked the question a final time:

681. Q. I’m asking, based on everything you knew in 2019, in terms of the relationship between the Board of Governors and Mr. Chartrand and Mr. Chartier, and the disrespect you say that they showed to you, Mr. Weinstein and Ms. Xie, do you agree with me that you had a belief in 2019 that the Board of Governors would never have approved a five-year contract for any of you?

[138] Counsel for Mr. LeClair declined to answer this question.

[139] Based on the pleading, it is entirely fair for MNC to ask Mr. LeClair about:

a. whether or not the Board approved a specific contract or contracts;

b. his understanding about whether or not the Board was required to approve a specific contract or contracts;

c. whether or not he discussed with anyone whether or not the contract at issue needed to be put before the Board;

d. whether or not he offered anyone advice regarding whether or not the contract at issue needed to go to the Board; and

e. whether or not he is aware of anyone making a deliberate attempt to circumvent Board review or approval of the contract at issue.

[140] However, I see little utility in asking him to answer question 681. Counsel for Mr. LeClair correctly identified the question as hypothetical. While there is no categorical bar on hypothetical questions on examination for discovery, the case law has developed a number of principles that limit the use of hypothetical questions.[^36]

[141] Moreover, although MNC knew that counsel had objected to the question because it was hypothetical, MNC did not engage with the basis for the objection. MNC made no submissions on the law surrounding when a party may ask a hypothetical question. Instead, it made the following submissions:

36. Part of the basis for MNC’s allegation that the Primary Defendants illegally perpetrated the Scheme is that the Primary Defendants undertook several of the impugned actions described above (such as the transfer of the MVLP and Veterans Funds) without first seeking approval from MNC’s Board of Governors, which was required by MNC’s By-Laws, customs, policies and practices, the Canada Not-for-profit Corporations Act, and the common law and fiduciary duties the Primary Defendants.

37. The defendants Chartrand and MMF, Chartier, and LeClair failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the Primary Defendants acting for MNC without Board of Governor approval [including LeClair refusal 15].

[142] MNC’s submissions do not address the basis of the objection: to the best of Mr. LeClair’s knowledge and understanding, the Board had no role in approving contracts. A trial judge will determine as a matter of fact whether or not the Board approved any contracts and determine as a matter of mixed fact and law whether or not it was required to approve any particular contract.

[143] I see no value in asking Mr. LeClair to speculate about what the Board would or would not have done had they been asked to do the very thing he believes the Board does not do. MNC could possibly have persuaded me otherwise, but it did not attempt to do so. I decline to order Mr. LeClair to answer this question.

Questions already answered by Mr. LeClair

[144] MNC requests that I order Mr. LeClair to answer two questions that it states were not acknowledged.[^37] Mr. LeClair submits that these questions were answered at the examination for discovery.

[145] First, MNC asks that I order Mr. LeClair to answer “whether it was Mr. LeClair’s understanding that in order to obtain the 24 month severance, under section 12 of the agreement, that MNC had to elect to immediately terminate the agreement as a precondition?”

[146] In my view, Mr. LeClair answered the first question several times. He repeatedly stated that he understood that he was entitled to a payment equal to 24 months if he elected to terminate the agreement and that it was not a requirement of the clause that MNC terminate the agreement. For example:

884. Q. So, you’re saying if you ... your understanding was that if you provided notice of termination, you were automatically entitled to 24 17 month severance?

A. Yes. …

887. Q. So how does MNC get security if you enter into a five-year contract but you can terminate it any time and automatically get 24 months notice? How does that work?

A. Well, they got a commitment from the core team to continue to work and do the good work that they did before.

888. Q. For five years?

A. Yes, for five years.

889. Q. But you have the right under this contract to terminate at any time you want?

A Yes, that’s right. …

892. Q. So, you’re ... I just want to make it clear. Your understanding is that under this contract you could provide notice at any time that you wanted to terminate and as soon as you provided notice that you intended to terminate, MNC was obligated to pay 24 months severance in order to 7 terminate the relationship?

MR. D’ SOUZA: He said that’s what his understanding was.

THE DEPONENT: Yes.

[147] Mr. LeClair’s evidence is crystal clear: MNC was not required to elect to immediately terminate the agreement as a precondition to Mr. LeClair receiving the severance payment. The trial judge may or may not agree with that position, but Mr. LeClair’s evidence of his understanding of how the agreement worked is clear. I see no need to require Mr. LeClair to answer that question again.

[148] Second, MNC asks me to order Mr. LeClair to “identify in any document that MNC elected to immediately terminate the consulting agreement.”

[149] In my view, Mr. LeClair stated that, other than the release MNC provided to him, he was not aware of any other document evidencing MNC’s election to terminate the consulting agreement after he had provided notice of termination.

[150] MNC has offered no explanation of why this answer is not satisfactory. I see no reason to order Mr. LeClair to answer that question again, particularly given the ongoing duty to correct answers under rule 31.09.

Celeste McKay and McKay Consulting Inc.

[151] McKay Consulting Inc. had a contract with the plaintiff, through which Ms. McKay provided technical support to the MNC executives.

[152] MNC examined Ms. McKay for discovery on April 24, 2023, for a full day. The transcript covered 213 pages. MNC moves on two undertakings and four refusals

Undertaking to provide any additional material facts related to her pleading of a toxic workplace

[153] MNC asks me to order Ms. McKay to provide a better answer to an undertaking that it describes as being to “advise of any additional allegations that will be relied upon in their statement of defence.”[^38]

[154] I do not think that MNC has correctly described the undertaking given by counsel for Ms. McKay. The subsequent discussion between counsel makes clear that the undertaking was to provide any additional material facts alleged by Ms. McKay in support of the pleading in her statement of defence that the MNC was a toxic workplace.

[155] Ms. McKay provided an answer to that undertaking as item 13 of her answers to undertakings and confirmed that if she intends to rely on any additional material facts, she will advise MNC.

[156] This answer seems complete and satisfactory. It is for Ms. McKay to identify any further material facts related to her assertion that MNC was a toxic workplace. If there are additional material facts that she has not identified (and does not identify), that would seem to be to her disadvantage at trial.

[157] MNC has not identified what, if anything, is missing from this answer. MNC has not explained why it thinks that this answer is improper. I decline to order Ms. McKay to provide a further and better answer.

‘Undertaking’ to advise of any other evidence that Ms. McKay will rely on at trial

[158] MNC asks for an order that Ms. McKay comply with an undertaking “to advise of any other relevant evidence that will be relied on in this proceeding that has not already been produced.”[^39]

[159] In my view, no such undertaking was given. The exchange between counsel on this point comes at the very end of the examination for discovery:

858. MR. SNIDERMAN: And you will let us know if you are relying on any additional evidence beyond what has already been disclosed and produced?

MR. D’ SOUZA: Well, that is very broad. If there is a relevant document that we come across, then we are bound by the Rules to obviously comply with our obligations.

859. MR. SNIDERMAN: You will let us know any other relevant evidence that you will be relying on in this procedure, that you haven’t already produced?

MR. D’SOUZA: If we haven’t produced a document, sure, but there might be some ...

860. MR. SNIDERMAN: Yes, yes.

MR. D’ SOUZA: ... that I have questions about. Like, I have no idea.

861. MR. SNIDERMAN: Fair enough.

MR. D’SOUZA: Okay.

[160] Counsel for Ms. McKay acknowledged her obligation to produce relevant documents under Rule 30, nothing more. That obligation remains ongoing. In addition, a party that discovers an incorrect or incomplete answer to a question asked on an examination for discovery must correct or supplement that answer. In my view, counsel gave no further undertaking.

[161] MNC could have asked for additional disclosure of evidence that it may face at trial, but did not do so. I will address this issue in more detail in paragraphs [293] to [306].

Is Ms. McKay still doing significant work for MMF, LRI and GDI

[162] MNC asks that I order Ms. McKay to “advise if [she] is still doing a significant amount of work for MMF, LRI [the Louis Riel Institute], and GDI [the Gabriel Dumont Institute].[^40]

[163] It is helpful to set out the question posed and the exchange between counsel leading up to the refusal:

66. Q. So, still a significant amount of work that you were doing? Are you still doing a significant amount of work for those companies now [understood in context to be MMF, Louis Riel Institute, and the Gabriel Dumont Institute]?

MR. D’ SOUZA: Again, why is that relevant?

67 MR. SNIDERMAN: I would like to understand if Ms. McKay is doing the same type of work that she is doing, and also as you are aware, we are discussing matters related to your client’s relation with Manitoba Métis Federation, and understanding if she still works for that company is relevant.

MR. D’SOUZA: Well, I am going to refuse it, because I don’t think you have established that it is relevant. The claim against her, as I understand it, is that she entered into these contracts, and the contracts were, in some ways, improvident, and/or that she was some participant in a larger conspiracy. Like, there is no pleading that goes to what work she is doing or not doing for any entity right now.

68. MR. SNIDERMAN: Okay, I will take your refusal and come back to that.

MR. D’SOUZA: You are welcome to ask her if she got promises from the MMF for post-contractual termination work, and whether those promises came to fruition or not. Like, that would be arguably, at least, relevant.

[164] MNC moved on and did not pursue the line of questioning about whether or not Ms. McKay received any promises from the MMF for work after the termination of the contract.

[165] MNC’s submissions in support of its request that I compel Ms. McKay to provide an answer are as follows:

40. MNC alleges that as part of the Scheme, the Primary Defendants, Consultants, and Employees negotiated, encouraged, orchestrated or assisted with the execution of excessive and unnecessary contracts on behalf of MNC in an attempt to bind MNC to significant future liabilities, injure MNC, and correspondingly benefit MMF.

41. One of these contracts included a consulting agreement with the Louis Riel Institute (the “LRI”), which was entered into without disclosing negotiations and without obtaining proper approval, with the alleged intent to benefit the LRI, an associate of MMF.

42. The defendants… McKay failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the consulting agreement between MNC and LRI [including Refusal 1]

[166] MNC does not explain how an answer to the question of whether or not Ms. McKay is still working at MMF, LRI or GDI, years after the events at issue, is relevant to its pleaded concerns about the contract MNC entered into with the LRI.

[167] It is possible that MNC could have persuaded me of the relevance, but it has not done so. I decline to order Ms. McKay to answer that question.

What is Ms. McKay’s understanding of a note prepared by someone else?

[168] MNC asks that I order Ms. McKay to provide her understanding of the phrase “requested consideration for termination” in a note prepared by Ms. Watteyne for President Chartrand.[^41]

[169] It is helpful to set out some context for this question and refusal. Counsel for MNC asked Ms. McKay about a series of text messages she exchanged with Ms. Watteyne on September 22, 2021. Ms. McKay answered that reviewing the text messages did not help her recall if, on September 21, 2021, she already knew or had already decided that she was going to terminate her agreement with MNC. She stated that she was not sure if she made the decision on September 21 or 22, but she was certain that she had made that decision no later than some time on September 22, 2021.

[170] Counsel for MNC then took Ms. McKay to a briefing note dated September 7, 2021, from Ms. Watteyne to President Chartrand. The briefing note read “Primary contract termination, Celeste McKay.” The note then stated, “On August 25^th, 2021, Celeste McKay requested consideration for termination of her current consulting agreement, which has been placed to the end of March, 2022.”

[171] Ms. McKay stated that she did not recall or remember anything about the conversation referred to by Ms. Watteyne in her briefing note to President Chartrand. Ms. McKay stated that if Ms. Watteyne said there was a conversation on August 25, “then it happened, because Ms. Watteyne is an honest person.”

[172] Counsel for MNC then asked Ms. McKay for her understanding of the phrase “requested consideration for termination” that Ms. Watteyne used in the briefing note she prepared for President Chartrand:

634. Q. So then from this, you would have wanted to terminate your consulting agreement as early as August 25^th, is that right?

MR. D’ SOUZA: No, it says “Requested consideration of termination”, it doesn’t say she is asking for termination.

635. Q. Ms. McKay, what do you understand this to mean, “requested consideration for termination”?

MR. D’ SOUZA: It is not her words, as I said several questions ago.

636. Q. I am asking what she – understands it to mean. I know she doesn’t recall the specific conversation.

MR. D’ SOUZA: She never saw the document until literally a few minutes ago. So, why should her understanding now, of a document she has not seen until now, be relevant to this case?

[173] It appears to me that MNC is asking Ms. McKay to read (for the very first time) and interpret a briefing note that was prepared by another person about a conversation that Ms. McKay cannot recall.

[174] MNC’s submissions in support of its request that I order Ms. McKay to answer this question are as follows:

34. Paragraphs 39-50 of the Statement of Claim detail the relationship between the Primary Defendants, the Consultants, Employees, and other persons allegedly involved with, or related to, the Scheme. MNC maintains that establishing the nature of these relationships provides significant probative value as to the level of knowing assistance and involvement of the Consultants and Employees in the Scheme, as well as further details as to the nature of the Scheme itself.

35. The defendants…McKay…failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the relationship of the Primary Defendants, the Consultants, the Employees, and other persons allegedly involved with or related to the Scheme [including McKay refusal 2].

[175] MNC’s submissions do not engage with the basis for Ms. McKay’s objection to answering the question.

[176] I find Ms. McKay’s objection persuasive. She does not remember anything about a call with Ms. Watteyne on August 25, 2021, although she is prepared to accept that there was such a call. She did not prepare the briefing note, Ms. Watteyne did. She did not see, review, or sign off on the briefing note at the time Ms. Watteyne prepared it. She had no understanding of the meaning of the note at the time it was prepared because she did not see it until counsel presented it to her during the examination for discovery.

[177] I do not see the relevance of any answer that Ms. McKay could provide. It is possible that MNC could have persuaded me of the relevance of the answer, but it did not do so.

[178] I decline to order Ms. McKay to answer question 635.

What is Ms. McKay’s understanding of the circumstances under which MMF could withdraw from the MNC

[179] MNC asks me to order Ms. McKay to provide her “understanding of MMF being permitted to withdraw from the MNC as a result of MNC not living up to the definition of Métis.” Counsel for Ms. McKay refused to answer this question.[^42]

[180] It is helpful to provide some context for this question and the refusal to answer it.

[181] Ms. McKay explained that at the 2019 annual general assembly of the MMF, a resolution was passed to say that “MMF could leave the MNC, should the event occur where the definition of being Métis was not lived up to.” Ms. McKay explained that she understood the triggering event would occur if the MNC did not trace back Métis membership to the Red River, which was related to an ongoing dispute with Métis Nation of Ontario (“MNO”). She explained that she understood that if MNC agreed with one of its individual entities defining people not in accordance with that definition of Métis, the MMF had the authority to withdraw from the MNC.

[182] Counsel for MNC then asked the question at issue:

429. Q. But if MNC agreed with that, would that not have meant that sufficient votes from the board of governors approved it, or allowed it to continue?

[183] Counsel for Ms. McKay objected on the basis that MNC was asking Ms. McKay a question about the governance of the MNC when she was not an expert in governance matters. In response, counsel for MNC observed that Ms. McKay had attended some meetings of the board of governors and the general assembly.

[184] I do not understand how Ms. McKay’s answer to this question would be at all relevant to this proceeding. At the examination for discovery, counsel for MNC said the question was a permissible investigation of Ms. McKay’s position with respect to MMF’s opinion on when it was permitted to leave because MNC wanted to know “if she was aligned. Because we have alleged a scheme.”

[185] There is no doubt that MNC has pleaded a plan among the defendants, including Ms. McKay, to cause it harm. MNC is entitled to explore that theory. However, there are more direct ways to explore this issue than by probing Ms. McKay’s opinion on the requirements of the MNC’s complex governance structure when there is no evidence that she is familiar with them. I do not see how the answer to this question would be relevant.

[186] In my view, the question was improper, and I would not direct Ms. McKay to answer it.

Ms. McKay’s post-termination work to advance the rights of the Métis Nation

[187] MNC asks me to order Ms. McKay to answer the question “in continuing your efforts to advance the rights of the Métis Nation, is that through similar work that we have already discussed today?”[^43]

[188] This question arose out of an email that Ms. McKay sent to President Chartrand on September 30, 2021, which was both the date her contract with MNC ended and the day that MMF withdrew from the MNC. Ms. McKay thanked President Chartrand for his leadership and said that she was glad that he led the withdrawal of the MMF from the MNC. She then wrote, “I look forward to continuing my efforts of advancing the rights of the Métis Nation here at home, in whatever form that may take.”

[189] In response to a question from counsel, Ms. McKay stated that she had continued her efforts to advance the rights of the Métis Nation. That led directly to the question at issue and the refusal:

776. Q. And is that by doing similar work that we have already discussed today, or was there anything ... or let’s cut that sentence off. So, was it through similar work that we have already discussed today?

MR. D’SOUZA: Her post-termination work to forward her interests on behalf of the Métis Nation is not relevant.

MR. SNIDERMAN: Okay.

[190] MNC makes the following submission in support of its request that I order Ms. McKay to answer question 776:

27. As established throughout the Statement of Claim, MNC’s primary allegation against the Defendants is that they engaged in the Scheme to willfully damage MNC while enriching themselves, the Consultants and Employees, and MMF, all in breach of their fiduciary duties and legal obligations owed to MNC.

28. The defendants… McKay…failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the Scheme [including McKay refusal 4],

[191] The question Ms. McKay refused to answer related to her efforts to advance the rights of the Métis Nation after her contract ended and after the MMF left the MNC. I do not see how that answer is relevant to the alleged plan to damage the MNC. It is difficult to see how this evidence would have any value at all.

[192] If the question was intended to get at post-departure rewards (promised or received) for Ms. McKay’s participation in the plan, then MNC should have asked that question directly. It is possible that the MNC could have persuaded me that this question was relevant or even a necessary precursor to another relevant and important question, but it did not attempt to do so.

[193] In the circumstances, I decline to order Ms. McKay to answer question 776.

John Weinstein and Public Policy Nexus Group Inc.

[194] The MNC signed a contract with the Public Policy Nexus Group Inc. through which Mr. Weinstein provided services as a senior advisor to the MNC executive. MNC examined Mr. Weinstein for discovery for a full day on April 20, 2023. The transcript spans 268 pages. During the examination, Mr. Weinstein’s counsel gave four undertakings, took four questions under advisement, and refused to answer two questions. MNC moves for a better answer to one undertaking and for answers to the two refusals.

Undertaking to advise if Mr. Weinstein intends to rely on any other evidence of public criticism of him by MNC Board members that is not in the productions

[195] MNC asks me to order Mr. Weinstein to answer an undertaking to advise if there is any other evidence Mr. Weinstein intends to lead with respect to public criticism of him by MNC Board members that is not in the productions.[^44]

[196] The undertaking chart that MNC attached to its notice of motion states that Mr. Weinstein subsequently provided the following answer:

The productions contain a number of instances of public criticism, including but not limited to MNC0206774, MMF004925, MMF004925, and MNC0177611. These statements occurred in conjunction with President Audrey Poitras’ longstanding voiced criticism at MNC Board of Governor meetings and General Assemblies on MNC’s use of consultants, and the costs it incurred to retain consultants. These comments continued, despite Finance Minister David Chartrand explaining to the Governing Members that the Governing Members needed full-time program officers because they delivered programs and services, while MNC focused on policy and required a range of consultants who could be brought in for specialized projects.

[197] Counsel for Mr. Weinstein notes that this information was provided to the plaintiff on June 23, 2023, and that Mr. Weinstein presently intends to call no other evidence on this issue.

[198] MNC submits that this is not a proper answer but did not explain why it takes this position. Particularly since Mr. Weinstein has stated that he does not intend to call any other evidence, I do not see what more could reasonably be required.

[199] I decline to order Mr. Weinstein to provide a further answer to this undertaking.

Request to catalogue and explain irrelevant email messages

[200] MNC asks that I order Mr. Weinstein to catalogue and produce irrelevant email messages and explain why they are not relevant.[^45]

[201] For the reasons given at paragraphs [71] to [75], I decline to order Mr. Weinstein to do so.

Wei Xie and Systemway Consulting Inc.

[202] MNC entered into a contract with Systemway Consulting Inc. through which Wei Xie provided services as a senior advisor to the MNC executive. MNC examined Ms. Xie for discovery on April 21, 2023, for a full day. The transcript spans 227 pages. During the examination for discovery, counsel for Ms. Xie gave four undertakings, took seven questions under advisement, and refused to answer four questions. MNC moves for an order requiring Ms. Xie to answer one undertaking, to either answer or to provide better answers to three questions taken under advisement, and to answer the four refusals.

[203] I find it convenient to address these questions in groups, which I have organized by the substance of the question.

‘Undertaking’ to provide further information related to the maintenance of the MNC servers

[204] MNC asks me to require Ms. Xie to answer what it characterizes as an undertaking given in question 470.[^46] As is clear from the transcript, no such undertaking was given. It will be helpful to set out some of the context for this question.

[205] Counsel for MNC asked a series of questions to Ms. Xie predicated on the theory that she deleted data from certain MNC hard drives in the summer 2021. At question 459, counsel for MNC asked the following question, which Ms. Xie answered:

459. Q. All right. Good enough. Do you have any knowledge, information, or belief, Ms. Xie, as to why the MNC hard drive needed some sort of maintenance or the backups of the hard drive needed some sort of maintenance requiring the deletion of material at that time?

MR. D’SOUZA: Is there anything more you can expand on your answers?

THE DEPONENT: No.

[206] Ms. Xie subsequently corrected her answer “No” to read “I don’t recall accessing the hard drive in the MNC basement in the summer of 2021. The hard drive was removed from the office for safety reasons in the spring and summer of 2021. I cannot recall any further details.”

[207] At question 470, counsel for MNC asked a further question:

470. Q. Okay. So, I’m just going to put on the record what my specific question is, and, Ms. Xie, if later you have some memory of this happening, I am going to ask you to advise your counsel and then have your counsel answer on your behalf. I want to know, if and when your memory restores, all of the circumstances relating to the maintenance and/or deletion of information from the MNC hard drives and backup in 2021. So, what did you do, when did you do it, why did you do it, and whether it was at the request of Mr. Chartier or anyone else? So I am asking that by way of answer to undertaking, if and when Ms. Xie’s memory improves.

MR. D’ SOUZA: I will give you the undertaking if and when you establish that something was actually deleted by this witness.

471. MR. COHEN: Well, if she remembers it then I guess she can answer that.

MR. D’ SOUZA: Well, she has a general obligation to review and correct the transcript.

MR. COHEN: Yes, so that’s why I am asking if her memory improves.

[208] Ms. Xie has corrected her answer to question 459, presumably to the best of her ability. She remains subject to the obligation under the Rules to correct her answers.

[209] In its factum, MNC did not highlight any evidence demonstrating that it has established that Ms. Xie actually deleted any data from the servers.

[210] Until MNC establishes that Ms. Xie deleted any information, MNC has not proven the condition precedent to the ‘undertaking.’

[211] I decline to grant MNC any further relief in respect of question 470.

Questions relating to the contracts and magnitude of payments between Systemway and the MMF or N4

[212] MNC asks me to order Ms. Xie to provide answers, or better answers, to series of questions related the contracts between Systemway and MMF and N4:

a. to advise of the value of services Systemway provided to MMF from 2014 to 2021 on an annual basis;[^47]

b. to advise roughly the amount Systemway was billing either to MMF or N4 on an annual basis between 2014 and 2022;[^48]

c. to provide all of the contracts between Systemway and either N4 or MMF from 2014 to date;[^49]

d. to advise if Systemway continued to provide policy analysis services to MMF after September 2021;[^50]

e. to produce Systemway’s financial statements from 2014 to 2022;[^51] and

f. to advise how much Systemway charged MMF for policy services on an annual basis.[^52]

[213] Ms. Xie submits that the answers sought are not relevant to the matters in dispute:

The plaintiff’s claims against Ms. Xie and Systemway essentially relate to the final consulting contract Systemway entered into with the plaintiff. In particular, the plaintiff alleges that the termination provision in Systemway’s final consulting contract with MNCS Inc. was unreasonable, that Ms. Xie was party to a scheme to cause financial harm and other injury to the plaintiff, and/or that the receipt of the termination payment constituted an unjust enrichment, a knowing assistance in breach of trust or knowing receipt in breach of trust.

[214] Ms. Xie also submits the requests are overbroad and disproportionate given the matters in dispute.

[215] Finally, Ms. Xie points out that she answered a series of questions that provide MNC with some information related to each of these topics, including that:

a. Systemway’s revenue from MMF and N4 exceeded the revenue earned from MNC; and

b. Systemway’s revenue from MNC comprised 33% of its total income from 2014 to 2021, exclusive of the termination payment.

[216] MNC made the following submission in support of the relief sought with respect to all of the questions listed above:

34. Paragraphs 39-50 of the Statement of Claim detail the relationship between the Primary Defendants, the Consultants, Employees, and other persons allegedly involved with, or related to, the Scheme. MNC maintains that establishing the nature of these relationships provides significant probative value as to the level of knowing assistance and involvement of the Consultants and Employees in the Scheme, as well as further details as to the nature of the Scheme itself.

35. The defendants…Xie…failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the relationship of the Primary Defendants, the Consultants, the Employees, and other persons allegedly involved with or related to the Scheme [including Xie under advisements 1 to 3 and refusals 1 to 3]

[217] MNC’s submissions do not engage with the basis for Ms. Xie’s refusals. They do not explain why the refusals are inappropriate. They are of no assistance to me in attempting to understand why the answers MNC seeks are relevant, much less proportionate to the matters at issue in this litigation.

[218] MNC could have persuaded me that this level of detailed information is somehow relevant to the proceeding, but such relevance is not clear to me on the face of the pleadings. In the circumstances all the questions in this section appear to be seeking irrelevant information.

[219] With respect to the information sought regarding N4, I rely on my reasons given in paragraphs [91] to [101].

[220] Finally, these questions are not proportionate. Even if the information sought was marginally relevant, and I do not think it is, I see no reason to believe it would be of any material assistance to resolving the core issues in this case.

Request to provide medical records related to a time Ms. Xie fainted

[221] MNC asks for a further and better answer to question 463, which asked Ms. Xie to provide medical records about a time that she fainted and sought medical attention.[^53]

[222] On June 23, 2023, Ms. Xie answered this question and produced relevant medical documents. She advised that she had no further medical records to produce, but if any become available, she will produce them.

[223] I have no idea why MNC moved on this question. It appears to have been fully answered before MNC served its notice of motion. MNC’s factum does not help me understand in what way MNC believes that this answer is insufficient, it simply asserts that the question was improperly answered or not answered in full.

[224] I see nothing wrong with Ms. Xie’s answer and I decline to order relief in respect of question 463.

How did Ms. Xie communicate certain information to her lawyer in 2019?

[225] MNC moves to compel Ms. Xie to explain how she communicated with her own lawyer regarding a letter that lawyer wrote to CBC News in 2019.[^54]

[226] During the examination for discovery, counsel for MNC took Ms. Xie to a letter from her lawyer, Mr. Trachtenberg, to CBC News. Mr. Trachtenberg’s letter states that he has been retained by Ms. Xie and then raises concerns about the accuracy of an article published on July 16, 2019. Counsel for MNC then asks a series of questions, as follows:

654. Q. Okay. First of all, the dating of the letter, I just want to make sure I understand. If we go to the date of the letter at the top, was this send out in ... well, that date can’t be right. That’s today’s date, April 21, 2023. Was this a letter that actually went out back in 2019?

A. I don’t know.

655 Q. And I don’t want to hear what you’ve discussed with Mr. Trachtenberg, but did you retain Mr. Trachtenberg in respect of a defamation issue relating to a CBC News online article?

A. I was working with him on this one, back to 2019 when the article comes out.

656. Q. Yes. And so, did you retain him to write this letter for you?

MR. D’SOUZA: I think our position is yes. It clearly states it.

657. I know. So, you actually went to him, Ms. Xie, to meet with Mr. Trachtenberg?

MR. D’ SOUZA: I don’t think you are entitled to know what she did with her lawyer.

658. Q. Well, I want to know ... it says, “I have been retained by” her. So I just want to know, did you actually meet with him in person or speak with him on the phone, or email him to give him the information that’s in this letter?

MR. D’SOUZA: Refused. Not relevant and privileged.

[227] A lawyer states in a letter that he has been retained by his client. I do not understand why that prompts a follow-up question regarding how the lawyer and client communicated. I can see no relevance whatsoever to the question posed by counsel for MNC. The factum filed by MNC does not explain the relevance of this question.

[228] I decline to order Ms. Xie to answer this question.

Kristina Monette

[229] MNC seeks an order requiring its former employee Kristina Monette to answer the following undertaking: “To provide any further relevant information if Ms. Monette remembers or becomes aware of it.”[^55]

[230] Although Ms. Monette did not file any materials in response to this motion, I see no basis to compel a further or better answer. The undertaking that MNC sought was conditional. Ms. Monette was only to do something (provide further information) if she remembered or became aware of any further relevant information.

[231] MNC did not file any evidence to suggest that Ms. Monette has remembered anything, so I see no reason to compel a further answer. The undertaking remains in full force in the event that Ms. Monette subsequently does remember something.

MMF and David Chartrand

[232] MNC examined David Chartrand for discovery on March 14, 15, and 21, 2023. The examinations were a combination of cross-examination of President Chartrand’s affidavit sworn on March 9, 2023, in response to the MNC’s motion for interim possession and control of certain assets, and examination for discovery on President Chartrand’s own behalf and as representative of the MMF. I will refer to both defendants collectively as MMF, unless the context requires me to specify between them.

[233] On June 16, 2023, MMF delivered answers to undertakings, questions taken under advisement, and refusals.

[234] MNC has moved for further and better answers to two undertakings and 21 questions taken under advisement by counsel for MMF. MNC is also requesting that I order MMF to answer 13 questions counsel refused to answer.

[235] Many of the questions at issue touch on similar topics and raise similar issues. I will group the items into subject area following the order used in the MNC and MMF factums.

[236] MMF advises that, in accordance with the consent order I signed on July 27, 2023, the MMF has provided further and better answers to undertaking 2, and questions taken under advisement 1, 5, 8, 9, and 11. I have reviewed those answers and they appear to be complete. MNC has not raised any issues about the propriety or completeness of those answers, and I will not order any further relief on this motion in respect of those questions.

Questions about the Métis Veterans Legacy Program

Undertaking to identify documents relevant to the collection and charge back of the 15% administrative fee

[237] MNC submits that MMF has improperly answered or not answered in full an undertaking to “identify in MMF’s productions and financial disclosure, the collection and charge [back] of the 15 percent administrative fee.”[^56] In fulfilment of the undertaking, MMF advised that:

In the financial documents provided in September 2022 and February 2023 the 15 percent administrative fees are referred to as

“Management Fees”. For example, in the spreadsheet provided on February 2, 2023, titled “2021-2022 March 31, 2022 MVLP Final”, the year-to-date Management Fees total $53,155.89. The MMF contributes back the 15 percent administrative fee to the MVLP.

[238] MNC submits that this answer is incomplete. In its factum, MNC submits that:

18. As set out at paragraphs 64-75 of the Statement of Claim and as detailed in the Preservation Motion, a major issue for the proceeding is whether, as alleged by MNC, the MVLP and associated funds were illegally transferred from MNC to MMF as part of the Scheme, and whether the Veterans Funds have been appropriately managed following their allegedly illegal transfer to the MMF.

19. The Métis Veterans Fund Contribution Agreement (“Contribution Agreement”), which established the provision of the Veterans Funds for the MVLP from the federal government, includes reporting obligations and restrictions on the assignment of the Contribution Agreement. This includes obligations on MNC to use the funds for the MVLP in accordance with the terms of the agreement (section 4.2), to keep proper books and records of all expenditures and revenues relating to the MVLP (section 8.1), to grant the federal government reasonable access to the MVLP site, MNC’s business premises , and all MVLP related books and records (section 10.1), to provide prescribed reporting including yearly activity reports to the federal government, and a prohibition against the assignment of the Contribution Agreement without the federal government’s consent (section 23.1).

20. The defendants Chartrand and MMF failed to provide proper answers in response to certain undertakings either in full or in part that are directly relevant to MNC’s allegations regarding the transfer and assignment of the MVLP and Veterans Funds. This includes:

(a) Undertakings improperly answered or not answered in full, listed as Undertaking 1 in the Chartrand Undertakings and Refusals Chart; [Footnote: Undertaking 1 in the Chartrand Undertakings and Refusals Chart did not provide a full response to the question requesting proof of a charge-back to MVLP from MMF. The answer as provided only showed the collection of an administration fee by the MMF, without proof that it was charged back to the MVLP.]

(b) Questions taken under advisement and subsequently refused, improperly answered, or not answered in full, listed as Questions Taken Under Advisement 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 in the Chartrand Undertakings and Refusals Chart;

[239] I find that MMF has not completely fulfilled the undertaking. It has not “identified in MMF’s production and financial disclosure, the…charge [back] of the 15 percent administrative fee.” While MMF stipulates that it “contributes back the 15 percent administrative fee to the MVLP” it has not identified if and where that contribution back is evidenced in its productions and financial disclosures. I order it to do so.

To advise whether or not the management fee should have been reinvested for all periods

[240] At the end of the first day of MNC’s examination of President Chartrand, counsel for MNC read a series of accounting questions into the record. One of the questions was as follows:

So the first question is, the $195,169.12 management fee up to March 2021 was, quote, “gratuitously reinvested into the program for MMF and recognized as an offsetting revenue”. And my question is, should this reinvestment have been done so for all periods?

[241] MMF took this question (along with all the accounting questions asked at the end of the examination) under advisement and subsequently refused to answer this question because it is not clear what “all periods” refers to or why the “reinvestments should have been made in this period.”[^57] MMF fairly points out that MNC did not provide any further explanation of this question in its letter to MMF dated July 10, 2023, or its motion material.

[242] I agree that the question is not as clear as it should be, but it appears to be attempting to get at a relevant issue. I direct MNC to meet and confer with counsel for MMF to clarify the question as much as possible. I then direct MMF to answer the clarified question fully and completely. If MMF believes that the question remains unanswerable, they may raise the matter with me on a case conference. I expect counsel to work diligently together to try and avoid such an attendance.

Why did MMF charge interest income as an expense to the program?

[243] As part of the series of accounting questions described above, counsel for MNC asked “why would an amount of $4,442.66, equivalent to the interest income, be charged as an expense to the program.” MMF initially took the question under advisement.[^58]

[244] On June 16, 2023, MMF provided the following answer:

Interest is not charged as an expense to the MVLP. Interest earned is recognized as a revenue source on the financials.

[245] MNC seeks a further and better answer to this question. The submissions in support of this request are found in paragraphs 18 to 20 of its factum, which are reproduced at paragraph [238] above. MNC made no specific submissions on why MMF’s answer is not complete or sufficient and I do not understand why MNC thinks that this answer is not satisfactory.

[246] In the circumstances, I do not order MMF to provide a further or better answer.

Request to provide a final version of the financial statements

[247] As part of the series of accounting questions described above, counsel for MNC asked:

When will we be able to obtain or can we obtain the final version [of the internal draft statements], and does that mean that more costs will be allocated or that some of the costs could be removed from this list?

[248] MMF initially took the question under advisement.[^59] On June 16, 2023, MMF provided the following answer:

The final version of the MMF’s financial statements will be available after the September 15-17, 2023, Annual General Assembly. The General Assembly must first approve the financial statements before they are released to the public.

[249] On July 10, 2023, MNC indicated that MMF’s response did not address the latter part of the question about whether certain costs would be removed. MNC now moves for a further and better answer to this question.

[250] By the time I release these reasons for decision, the Annual General Assembly has probably approved the financial statements. If so, I direct MMF to provide a copy of the approved financial statements. If, for whatever reason, the Annual General Assembly did not approve the financial statements, I direct MMF to provide MNC with a copy of the version of the financial statements that was presented to the Annual General Assembly and an explanation of next steps to be taken in order for MMF to finalize and approve those financial statements.

[251] In my view, providing the approved financial statements will render it unnecessary for MMF to answer the latter part of the question regarding whether or not certain expenses will be removed.

Incremental rent charges

[252] As part of the series of accounting questions described above, counsel for MNC asked:

To advise (i): if there was an incremental rent charge payable by MMF, and (ii) if it is MMF’s position that it is appropriate to allocate rent to its various programs even if it is administered by MMF or MNC.

[253] MMF initially took this question under advisement.[^60] MMF subsequently refused to answer it because the question was not clear and called for opinion evidence.

[254] I agree that the question could have been clearer, but I am not sure that either question calls for an opinion. It appears to me that there either is or is not an incremental rent charge payable by MMF and MMF must have a position on the appropriateness of the allocation. That position may be informed by professional advice, but MMF must, at the end of the day, make the decision on the allocation.

[255] I direct MNC to meet and confer with counsel for MMF to clarify the questions as much as possible. I then direct MMF to answer the clarified questions fully and completely. If MMF believes that the question remains unanswerable, they may raise the matter with me on a case conference. I expect counsel to work diligently together to try and avoid such an attendance.

Under advisement 10: to advise what is included in the project contribution

[256] Among the series of accounting questions described above, counsel for MNC asked: “What is included in the project contribution amount of $360,800, and does it relate to the MVLP program?” Initially, MMF took the question under advisement.[^61] On June 16, 2023, MMF provided the following answer:

The “Project Contribution” amount comprises the first and second progress payments for the Miguel Joyal commemoration project contract. Attached at Tab 3 are supporting documents.

[257] MNC seeks a further and better answer to this question. The submissions in support of this request are found in paragraphs 18 to 20 of its factum, which are reproduced at paragraph [238] above.

[258] MNC made no specific submissions on why this answer is not complete or sufficient and I do not understand why MNC thinks that this answer is not satisfactory. In the circumstances, I find the answer to be satisfactory and do not order MMF to provide a further or better answer.

To produce promotional and marketing materials

[259] Counsel for MNC asked a series of questions about the advertising and marketing of the veterans’ programs. Of those questions, MMF took two under advisement, one of which has now been partially answered.[^62] For context, I will set out an excerpt of the exchange:

1874. Q. Okay, good enough. In terms of the advertising, I see a lot of advertising for the veterans program. In fact, I saw some advertising in the newspaper, The Globe and Mail I think, just on the weekend. Who is in charge of the advertising and marketing for the veterans program at MMF?

A. I have nothing to do with that file right now.

1875. Q. Well, can you tell me who is in charge of the advertising at MMF?

A. No. That is ... again, we have a big department, we have a big government, so I don’t know what you’re talking about. …

1880. Q. All right. So I would like to know who was in charge of the marketing, the application process, and the administration of the veterans program at MMF since it was ... I think the ... since the initial service delivery contract.

MR. AGARWAL: Okay. I will take it under advisement.

1881. Q. And I would like to see all of the advertising materials that have been used or marketing materials or promotional materials that have been used by MMF with respect to the veterans fund.

MR. AGARWAL: I will take it under advisement. …

1886. Q.: I want to see all the promotional material, website material from the outset from the veterans fund as it has up until today.

MR. AGARWAL: I think that is grossly disproportionate, but I will take it under advisement….

[260] MMF subsequently partially answered the first part of question 1880 stating:

The MVLP marketing efforts were directed by the Minister for Veterans Affairs, David Chartrand, Wenda Watteyne, and Glorian Chartrand. The application process is overseen by the staff of the Veterans department at the MMF, who are guided by the MVLP’s distribution principles. This department also administers and manages the MVLP on a daily basis.

[261] MNC seeks a further and better answer from MMF. The submissions in support of this request are found in paragraphs 18 to 20 of its factum, which are reproduced at paragraph [238] above. MNC made no specific submissions on why this answer is not complete or sufficient and I do not understand why MNC thinks that this answer is not satisfactory. In the circumstances, I find the answer to be satisfactory and do not order MMF to provide a further or better answer to this part of the question.

[262] With respect to the request for “all the promotional material, website material,” I agree with counsel for MMF that the request is disproportionate to its relevance and probative value. Indeed, this request appears to be so disproportionate to the issues in dispute such that I would have expected to see a detailed submission from MNC explaining why this information is relevant and why the request is proportionate given the matters in dispute. No such explanation was provided, and I conclude that the requests are disproportionate.

[263] I decline to compel any further answers with respect to these questions.

Questions about Contractor Defendants and employees

Did President Chartrand made disparaging remarks about members of the MNC Board of Governors in 2021

[264] MNC asked President Chartrand to advise if he “had ever made disparaging remarks about any members of MNC’s board of governors to departing employees or consultants at any time in 2021.” MMF refused to answer this question on the basis that it was irrelevant and had been asked and answered previously.[^63]

[265] I disagree that the question is irrelevant. Given the pleading in this action, the answer to this question could be relevant to several of MNC’s allegations.

[266] Even if a form of this question has been asked previously, it is so easily answered that I direct MMF to answer it.

Reliance on historical custom or precedent to make certain payments

[267] MNC asked President Chartrand a series of questions about the authority to make certain payments. President Chartrand explained that the decision was consistent with historical practice. MNC followed up by asking how historical custom or prior practice could be relied upon to guide decision making in unprecedented circumstances. President Chartrand refused to answer that question.[^64] The exchange was as follows:

1626. Q. Okay. And so, the authority that you were relying upon to make these payments obviously didn’t come from the board of governors, correct?

A. It came to ... in the ... the practice we’ve had for decades upon decade, basically, is ...

1627. Q. Well, was ...

A. ... the minister had the authority as the signing officer ... those that are the signing officer had the powers to bind. That was the purpose of having a minister of finance, a minister of HR, minister of different departments, they had ... the power of the signatory was to bind the corporation. [ ... ]

1628. Q. I understand the general point, but you’ve just told me that there was no precedent for this. So, how could you rely upon any historical custom or prior practice when nothing like this had happened before?

MR. AGARWAL: I don’t think that is a proper question, Mr. Cohen.

MR. COHEN: All right. I don’t agree with you, Counsel, but I will just move on.

[268] MMF refused to answer this question on the basis that “it is improper for counsel to quarrel with the witness about his answer, let alone seek to compel a response to a rhetorical question.”

[269] While MNC provided no helpful submissions on this point, I do not see the question as purely rhetorical. Counsel was properly testing the answer President Chartrand provided with reference to earlier evidence he provided, not quarrelling with the witness. I see nothing wrong with that approach.

[270] President Chartrand can and should answer this question. I direct MMF to answer question 1628.

Questions about the alleged plan to withdraw from MNC

Request for MMF to inquire about the transfer of components of the MNC website to the MMF

[271] MNC seeks an order directing MMF to answer question 1731, which relates to the transfer of components of the MNC website to MMF.[^65] It will be helpful to provide some context to this question.

[272] Counsel for MNC showed President Chartrand an email dated September 14, 2021, from the defendant Mr. Weinstein to Al Benoit who was at that time and remains at MMF. In that email message, Mr. Weinstein reports that he spoke with the defendant Ms. Xie. The email goes on to state that Ms. Xie “can also transfer the important components of the MNC website, such as portals, to the new national page of the MMF website.” President Chartrand stated that he did not understand to what Mr. Weinstein was referring.

[273] Counsel for MNC asked President Chartrand to ask Mr. Benoit for his understanding of what Mr. Weinstein was talking about and then asked the question at issue:

1731 Q. And if you have to ask your tech people there ... I know there were tech people at MMF. I would ask them to advise of whether they know whether there had been a transfer of the important components of the MNC website, such as portals. If so, I want to know all the details of the transfer of any components of the MNC website, and I would also like to know if there had been ... ask your tech people whether there had been a new national page of the MMF website. If so, what were the contents, and when was it developed and launched.

[274] MMF took that question under advisement but subsequently refused to answer it on the basis that it was irrelevant. MMF states that there is no allegation in the statement of claim about the transfer of components of the MNC website. MMF also states that it was unclear to whom the question was posed. Although MNC provided me no meaningful assistance on this point, I disagree with the position taken by MMF.

[275] First, read generously, the pleading is sufficiently broad to embrace the transfer of components of the MNC website to the MMF. For example, in paragraph 132 of the statement of claim, MNC alleges that the defendants “designed and created additional obstacles intended to delay, hinder or prevent MNC from fulfilling its mandate, including by…(ii) transferring MNC assets to MMF.” In my view, the allegation of the unlawful transfer of website components fits comfortably within paragraph 132.

[276] Second, the question was directed to MMF, not any particular person at MMF. If the discovery representative for MMF did not know the answer to that question, he may be required to make inquiries of people with the information to answer the question. The obligation is not on MNC to identify the specific person holding the information before the question should be answered.

[277] I order MMF to answer question 1731.

Discussions among some defendants about working together post-MNC

[278] MNC moves for an order requiring MMF to answer three refused questions relating to conversations among the defendants about work at MMF after they departed from MNC.[^66] The specific questions were as follows:

a. to confirm if David Chartrand had any communications with Clément Chartier about working in collaboration after his departure from MNC (Q. 1655);

b. to confirm if David Chartrand had any communications with Clément Chartier prior to September 30^th, 2021, about working in collaboration after his departure from MNC (Q. 1657); and

c. to advise if David Chartrand had any discussions with the consultants regarding supplying continued or future services for MMF (Q. 1718).

[279] MMF refused to answer these questions on the grounds that they had been asked and answered and, therefore, these questions were duplicative. MMF relied on the following transcript excerpts:

530 Q. Okay. Fair enough. That is fine. We know that MMF withdrew from MNC in September of 2021. Did you have some communication with Mr. Chartier about Mr. Chartier working with MMF after September 30^th, 2021?

A. No. [ ... ]

539. Q. Was there ... when was the first time you discussed with Mr. Chartier him playing some role for MMF?

A. It was after he left the MNC.

540. Q. Okay. So you’re saying there was no discussion with Mr. Chartier prior to September 30^th, 2021 about Mr. Chartier playing some role for MMF?

A. No.

541. Q. I’m correct?

A. You’re a hundred percent correct. There was no promises made to anyone to come and work at the MMF ...

542 Q.. Okay. And apart from the promises, there was no discussion whatsoever ...

A. No.

543 Q.. ... with Mr. Chartier? A. Not for him to be ambassador or working for the MMF.

544. Q. Or to play any role with MMF prior to September 30^th, there was no discussion?

A. No promises made to Mr. Chartier at all.

545. Q. I know ... you keep saying “no promises”. I want to know if there was any discussion ...

A. No.

546. Q. ... about Mr ....

A. None.

547. Q. Okay. So ...

A. He was naturally going to retire.

548. Q. And so, you’re saying the first time there was some discussion about Mr. Chartier playing any role for MMF was after September 30^th, 2021?

A. Yes. [ ... ]

825. Q. All right, and back when he was telling you about his retirement, did you talk to him at all about him working with MMF, or playing some role with MMF?

A. Not whatsoever.

[280] MNC submits that MMF improperly refused to answer these three questions. MNC does not explain why its questions were not duplicative.

[281] Questions 1655 and 1657 are patently duplicative of questions that had been asked and answered more than once. I uphold MMF’s refusal to answer those questions.

[282] I reach a different conclusion with respect to question 1718. That question focusses on discussions with the consultants, which I understand to mean the Consultant Defendants. MMF did not highlight transcript excerpts that demonstrate that MNC had previously asked question 1718, with its focus on consultants. That question is relevant, and I direct MMF to answer question 1718 for each of the Consultant Defendants.

How did MNS made it clear that it was supporting MNO

[283] MNC moves for an order requiring MMF to answer a refused question relating to how Métis Nation Saskatchewan (“MNS”) made it clear that it was supporting the MNO on the issue of non-compliance with the national definition of Métis. The specific question was:

1687. Q. No. I want to know, in September 2021, how did MNS make it clear to you, Mr. Chartrand, that they were supporting MNO on the non-compliance with the national definition?

[284] At the time, MMF refused to answer that question on the basis that it had already been asked and answered.[^67] MMF has maintained that refusal and relies on the following transcript excerpts:

1679. Q. Okay. And did Glen ... so, in other words, you’re saying, as of September 28^th, 2021, it was clear to you that MNS continued to support MNO’s position that they didn’t have to comply with the national definition?

A. It was throughout their process when they started to redirect themselves to work with the new definitions of Ontario, and supporting those positions. And it was very clear by the president that he was supporting those positions, and it was very clear from our side ... as I said, there was always hope that the board of directors would have a good debate on this and instruct the president to change his position. [ ... ]

1685. Q. Okay. So, just so I’ve got it, it wasn’t that Glen said ... or anyone at MNS said they were supporting MNO on this issue; it’s that the ...

A. They did. I stop you there, they did.

MR. AGARWAL: Yes. Bob, you’ve asked this question at least three or four times.

THE DEPONENT: Yes.

MR. AGARWAL: The answer is they were supporting MNO. President Chartrand ...

MR. COHEN: How do you know that?

THE DEPONENT: Because of the letters.

[285] MNC made the following submissions in support of its request that I order MMF to answer the question:

30. Several of the MNC Questions improperly answered or refused relate to the Governance Dispute described above and in the pleadings. This dispute centred on the Métis Nation of Ontario’s standing within the MNC, and provides a motivating factor for the Primary Defendants’ involvement with the Scheme.

31. In response to and related to the Governance Dispute, MNC alleges that the Primary Defendants conducted meetings where they agreed to implement concrete steps of the Scheme. These include alleged discussions regarding the formal resignation of the Primary Defendants from MNC before the end of September 2021, and discussions regarding financial and other harm the Primary Defendants planned to carry out on MNC before their respective departures.

32. The defendants Chartrand and MMF failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the Governance Dispute and its relationship to the Scheme [including Chartrand and MMF refusal 6]

[286] MNC knew that the basis of MMF’s refusal was that the question was duplicative and had already been asked and answered (several times). MNC’s submissions, however, do not engage at all with the basis of the objection. It seems to me that the question is duplicative. MNC could have persuaded me otherwise, but it did not do so.

[287] I decline to order MMF to answer question 1687.

MMF relationship with the Consultant Defendants

Request to provide contracts and payment details with Consultant Defendants

[288] MNC asked President Chartrand questions about the business relationship between MMF and the Consultant Defendants from 2020 to 2022. It culminated in two questions that MMF took under advisement:

a. to provide written contracts between the MMF and any of the consultants in the action for the periods 2020, 2021 or 2022 (Q. 1715 to 1717); and

b. to advise if MMF made any payments to any of the consultants in 2020, 2021, and 2022. If so, to provide the timing of such payments and the amounts that were paid pursuant to its respective contracts. [^68]

[289] MMF subsequently refused to answer these questions on the basis that they were not relevant to any issues in the action. MMF submits that the questions could not relate to any of the payments made by the MNC to the Consultant Defendants that are the subject of the claims in the statement of claim.

[290] MNC’s submissions in support of its request that I order MMF to answer the question are as follows:

34. Paragraphs 39-50 of the Statement of Claim detail the relationship between the Primary Defendants, the Consultants, Employees, and other persons allegedly involved with, or related to, the Scheme. MNC maintains that establishing the nature of these relationships provides significant probative value as to the level of knowing assistance and involvement of the Consultants and Employees in the Scheme, as well as further details as to the nature of the Scheme itself.

35. The defendants… Chartrand and MMF…failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the relationship of the Primary Defendants, the Consultants, the Employees, and other persons allegedly involved with or related to the Scheme [Chartrand and MMF under advisements 15 and 16].

[291] MNC did not explain why these questions and contracts are relevant to the action.

[292] It is difficult to see how these answers or documents would be relevant to the matters in dispute in this proceeding. MNC could have persuaded me of their relevance, but it did not do so. For these reasons, and those given at paragraph [91] to [101], I decline to order MMF to answer this question.

Does MMF intend to lead any other evidence at trial?

[293] At the conclusion of the third day of examination, counsel for MNC asked President Chartrand to advise MNC if he intended to lead any other evidence at trial. Counsel for MMF refused to answer the question on the basis it was as too broad and beyond their obligations.[^69] MNC asks me to order MMF to answer this question.

[294] The relevant exchange between counsel was as follows:

1899. Q. All right. Is there any other event, sir, that you recall with respect to the matters in issue that we haven’t discussed over the last, I guess, two and a half days?

MR. AGARWAL: Are there any other events?

1900. Q. Yes.

MR. AGARWAL: I’ve heard of the style of bookending your discovery questions. That is a pretty big bookend, so ...

1901. Q. Okay. I mean, you have told me, sir ...

MR. AGARWAL: Is there anything else you remember that you want to tell Mr. Cohen?

THE DEPONENT: No.

1902. Q. Okay. My point is ... and fair comment, I know there were a lot of events and we’ve got lots of documents. But I’m asking ... you’ve told me about problems at the MNC, you’ve told me about the various contracts, you’ve told me about a long litany of events. I’m just asking you, is there anything else, sir, that you are aware of that you intend to rely upon at trial, other than what you have already told me, in terms of your own recollection of important events?

MR. AGARWAL: I think your question is too broad. I mean, we have obligations under the Rules to provide further production as documents may become available to us, and also to reflect on the answers given, and correct answers if more information comes to us or on further reflection. So we will comply with our obligations under the Rules.

1903. Q. All right. I’m just saying, sir, if you intend to lead evidence with respect to other meetings or things that aren’t already reflected in the productions, I would ask that you advise me in advance of trial what those specific events are.

MR. AGARWAL: So, again, I actually don’t think that is our obligation. It’s your job to ask questions on discovery and elicit the evidence that you want to try to get. He is here, you’ve asked your questions, and we have our obligations under the Rules. So I’m not going to…

[295] This question is very similar to the question MNC asked Ms. McKay, which I address at paragraph [160]. Here, however, MNC is asking that I compel MMF to answer a question that it refused to answer, rather than enforce an undertaking that was not given.

[296] In my view, MNC was attempting to get information to which it was entitled, but I think the form of the question was not appropriate. MNC was attempting to elicit the evidence that MMF intended to call at trial in defence of its claim. There is nothing wrong with that. One of the purposes of an examination for discovery is to avoid surprises at trial.[^70] We are long past the days of permitting or encouraging civil trials by ambush.

[297] The Rules permit a party to discover what evidence the opposing party will call at trial. Evidence at trial comes in a few primary forms: oral evidence from fact witnesses, documents and other physical exhibits, and opinion evidence.[^71] Because they are more straightforward in this case, I will first consider opinion evidence and documentary evidence.

[298] Opinion evidence: MNC was entitled to ask MMF during the examination for discovery for disclosure of the findings, opinions and conclusions of any expert engaged by MMF that are relevant to a matter at issue in the trial, including the name and address of the expert: rule 31.06(3).[^72] If MMF changed its mind and subsequently retained an expert, it would be obliged to correct any incorrect or incomplete answers to this question. MMF would also have to serve the expert’s report no later than 90 days before the pre-trial conference: rule 53.03(1). These are all tools to permit MNC to know, in advance of trial, the opinion evidence (if any) that MMF intended to call at trial.

[299] Documentary evidence: MNC was entitled to ask MMF to produce any additional documents that it subsequently identified, whether or not MMF intends to rely on them at trial. Such a request is unnecessary given rule 30.07, but such a request is inoffensive and most counsel (as in this case) will readily confirm that obligation. The obligations under Rule 30 ensure that MNC would not be confronted at trial with documents that had not been produced unless the trial judge granted leave to introduce that document: rule 30.08(1)(a).

[300] Oral evidence: MNC was also entitled to ask MMF for disclosure of what oral evidence might be called at trial. Rule 31.06(2) provides that:

A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.

[301] The court has elaborated on the disclosure obligations under this rule. In Dionisopoulos v. Provias, Granger J. explained the obligations as follows:

To summarize, a party being examined for discovery is required under rule 31.06 to provide the names and addresses of persons who might reasonably be expected to have knowledge of the matters in issue, but are not required to provide a list of trial witnesses. A summary of the substance of the evidence of those persons who might reasonably be expected to have knowledge of the matters in issue, must be provided if requested. Rule 31.06(1) requires a person being examined to answer “any proper question relating to any matter in issue” or “any matter made discoverable by subrules (2) to (4)” and questions may not be objected to on the ground that “the information sought is evidence”. If the “names and addresses of persons having knowledge’’ is discoverable, then it would seem to me that a proper question relating to that is “what is the substance of their knowledge?" This is so even if the information to be disclosed is evidence.[^73]

[302] Indeed, while rule 31.06 does not require a party to provide a list of witnesses for trial, it obliges that party to provide the information with respect to an even larger group of people. Any witness to be called at trial would seem necessarily to be included within the list of people that might reasonably be expected to have knowledge of the matters in issue, but not every person on that list would be a witness at trial.[^74] Any answer given pursuant to rule 31.06 would also have to be updated if the party later realizes that it is incorrect or incomplete because it intends to call a witness at trial who was not listed in its rule 31.06 answer: rule 31.09.

[303] The requirements under rule 31.06 will vary with the nature of the case, the complexity of the issues, the expected length of trial, the extent of the examinations for discovery, the number of documents produced, and myriad other factors. In one case, Lauwers J. (as he then was) directed as follows:

I revert to Rule 31.06(2) and the case law to hold that the defendants must be provided with “the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action” known to the plaintiff and from whom the witnesses giving evidence at the trial on the plaintiff’s behalf will be drawn, summaries of what the information that they possess, and copies of any relevant documents that they have in their possession. In the circumstances, this material must be provided well before the continuation of the examination for discovery. As to content, any such summary must contain a fair degree of detail addressing the normal journalistic questions related to the person and the relevant knowledge that he or she possesses, being: “who, what, where, when, why and how”. If the level of detail is inadequate in the opinion of the defendants, I may be spoken to. A summary need not be sworn or signed.[^75]

[304] The Rules provide parties with many tools to discover the evidence that the opposing party may elicit at trial. Counsel are entitled to deploy these tools using careful and precise questioning to ensure that the opposing party does not ambush them with evidence at trial.

[305] What counsel may not do, in my view, is ask a very general question like the one asked in this case. A question such as “tell me all the evidence that you intend to call at trial” runs the risk of subsuming all other questions on the examination. It is impossible for any witness to answer meaningfully. It should not be encouraged.

[306] For these reasons, I do not require MMF to answer question 1903. Before concluding, I note that the examinations conducted so far in this case span 3700 pages of transcript, not including the answers to undertakings and questions taken under advisement. All counsel have had ample opportunity to discover the evidence and position of the other side.

Questions relating to whether or Mr. McCallum advised President Chartrand that he did not have unilateral authority to act without Board of Governors approval

[307] MMF refused to answer two questions about the content of an email message that Glen McCallum of MNS sent to President Chartrand on February 9, 2020.[^76]

[308] The email read as follows:

David this morning I met with the Associate Minister of Finance, Mona Fortier and made it clear to her that the MNC will be moving forward on a Budget 2020 ask for the five governing members. It has just been brought to my attention that you have once again undermined our governance structure and have had our staff at the MNC revise the Budget Ask which we have all approved, and to exclude the MNO without authority. It is imperative that we move forward with one voice, as I will not support this divided approach. Our strength is in our collective and not for you to individually make decisions without board of governors approval. It looks petty with these childish games and weakens our negotiating position with Canada. If you continue down this path it will be on your shoulders if we are in this budget.

[309] Counsel for MNC asked two questions about this message (emphasis added):

a. Okay. So my question is, you were told on February 9^th, 2020 by Mr. McCallum that you did not have unilateral authority to direct staff in respect of the 2020 budget, right? (Q. 1765)

b. My question is, sir, did you not ... at least in February of 2020, was this not a reminder to you that you did not have unilateral authority to take steps on behalf of MNC without board of governor approval? (Q. 1767)

[310] Counsel for MMF refused to allow President Chartrand to answer these questions on the basis of relevance and because the email did not use the phrase “unilateral authority.” Counsel for MMF felt the question mischaracterized the email message and, therefore, the question was unanswerable and improper.

[311] MNC made the following submissions on this point:

36. Part of the basis for MNC’s allegation that the Primary Defendants illegally perpetrated the Scheme is that the Primary Defendants undertook several of the impugned actions described above (such as the transfer of the MVLP and Veterans Funds) without first seeking approval from MNC’s Board of Governors, which was required by MNC’s By-Laws, customs, policies and practices, the Canada Not-for-profit Corporations Act, and the common law and fiduciary duties the Primary Defendants.

37. The defendants Chartrand and MMF, Chartier, and LeClair failed to provide proper answers, either in full or in part, in response to MNC Questions relating to the Primary Defendants acting for MNC without Board of Governor approval [Chartrand and MMF refusals 8 and 9]

[312] MNC’s submissions do not engage with the substance of MMF’s objections to the questions. MNC did not explain how its proposed questions were fair to the witness when the words counsel emphasized did not appear in the underlying email message that he was referencing.

[313] Moreover, MNC’s submissions do not explain how questions 1765 and 1766 are relevant to the issues set out in paragraph 36 or 37 of the factum. The email sent by Mr. McCallum relates to Mr. Chartrand’s discussions with MNC staff about a budget proposal. That does not appear to be related to the MVLP or Veterans Funds issues. MNC may have an explanation of how the two are related, but it is not evident to me that the questions are relevant. MNC could have persuaded me on this point, but did not do so.

[314] I decline to order MMF to answer refusals 8 and 9.

Did President Chartrand consider the impact on MNC of transferring the database to MMF?

[315] MNC sought to examine President Chartrand on his thoughts around the transfer of the database from MNC to MMF. MMF refused to answer these questions.[^77] The relevant is exchange is set out below:

1895 Q. Okay. Question, sir, did it ever come to your mind that, if the Alberta database ... or, sorry, the ... we will call it the Métis database ... gets transferred to MMF, that that could have a negative impact on MNC in any way?

MR. AGARWAL: Sorry, don’t answer that question. That is a very subjective question. I don’t really understand. You want his opinion on whether there would be a negative impact?

MR. COHEN: Well ...

MR. AGARWAL: What you’re saying is ... I don’t understand how the question could be anything other than trying to elicit an opinion from the witness about what a negative impact could be or whether that would be occasion or not.

MR. COHEN: I didn’t ask for an opinion. I asked him whether, in his mind, did it ever register that, by transferring the Alberta ... or the Métis database to MMF, that that could have a negative impact on MNC. I’m not asking for an opinion. I want to know, did it ever register on your brain that that might be harmful in any way to the MNC?

MR. AGARWAL: I don’t think that is a proper question, for a lot of reasons, so I’m going to refuse it.

1898 Q. Do you have any understanding, sir, that, without the database, that that would negatively impact MNC’s ability to seek funding? Did that ever register in your mind, sir?

MR. AGARWAL: Again, I don’t like the framing of the question, so it’s refused.

[316] In my view, the question was posed inelegantly, but I disagree with the submissions of MMF that the questions were “abusive,” had no probative value, or sought an opinion. In my view, the core of MNC’s questions to President Chartrand were as follows:

a. Did you consider whether or not transferring the database could harm any of the interests of MNC?

b. If so, when did you turn your mind to that?

c. If you considered the possible harm to MNC, what did you conclude about the type of harm that MNC might suffer, the magnitude of that harm, and whether or not MNC would be harmed?

d. If you drew any conclusions, did your conclusions affect any of your decisions?

e. If so, how did those conclusions affect your decisions?

f. If your conclusions did not affect your decisions, why not?

[317] All of these questions seem permissible to me. I direct MMF to answer these questions fully and completely. If MMF believes that these questions are unanswerable, they may raise the matter with me on a case conference.

Part II: MMF’s motion to compel answers from MNC

[318] MMF examined President Caron as MNC’s discovery representative on March 22, 23, and May 15, 2023. The parties also agreed that the transcript of the cross-examination on her affidavit sworn for the interim preservation motion, which was conducted on March 21 and 22, 2023, would form part of the examination for discovery.

The unlisted and unanswered undertakings

[319] On June 16, 2023, counsel for MNC delivered answers to the undertakings given at the examination. On June 26, 2023, counsel for MNC delivered a separate chart containing its answers to questions taken under advisement or refused on the examination.

[320] On June 29, 2023, counsel for MMF and President Chartrand sent a letter to counsel for MNC setting out a chart of 12 undertakings that were not included in an earlier version of the undertakings chart prepared by MNC. MMF followed up on these unlisted undertakings on July 13, 2023. In its factum dated July 21, 2023, counsel for MMF stated that these unlisted undertakings remained unanswered.

[321] MNC has taken a very unusual approach to MMF’s objection to its failure to answer the unlisted undertakings. In its factum dated July 28, 2023, counsel for MNC stated as follows:

11. MNC answered its undertakings on June 16, 2023, and answered questions taken under advisement and refusals on June 26, 2023. In the case of each question MMF identifies as an allegedly unanswered undertaking, MNC is still searching for relevant documents and conducting further investigation necessary to answer those questions. The questions with respect to the witnesses MNC will or will not call and their evidence will also be answered once MNC has determined who it will call as witnesses at trial. In any event, MNC is aware of its obligation to answer these questions and will provide answers once available.

12. Accordingly, MMF is not entitled to any additional relief from this Court in respect of the undertakings provided at the Caron Examination.

[322] Later on in its factum, MNC includes a chart setting out what it describes as its “position on specific questions.” This chart includes the 12 unanswered undertakings under the heading “A. Unlisted Undertakings Not Answered.” MNC hedges, however, and introduces the chart with the curious sentence “While MNC uses MMF’s characterization of its Schedule A for organizational purposes, MNC contests MMF’s characterization of these categories unless otherwise noted.”

[323] Since MNC did not “otherwise note” its agreement to MMF characterizing the unlisted as undertakings as undertakings, I was unsure if MNC accepted that they had given these undertakings. So, I went to the transcript and read each and every passage identified by MMF as an unlisted undertaking. I find that counsel for MMF has accurately described all of the undertakings, except one. [^78] Counsel for MNC gave each of those undertakings.

[324] Once an undertaking is given, it must be answered: rule 31.07(4). Justice Kiteley explained the unequivocal obligation to answer undertakings in the clearest possible terms:

Counsel for the defendants undertook to produce the defendants for examination-for-discovery if liability was not admitted. Undertakings must be complied with. This court and litigation counsel and their clients rely on the significance of undertakings and on the expectation that the professional and legal responsibilities associated with the giving of an undertaking are fulfilled. An undertaking must be complied with regardless of whether the party or counsel who is the recipient of the undertaking pursues the undertaking. The fact that the recipient of the undertaking does not make repeated demands or threats to bring motions or motions themselves does not relieve the giver of the undertaking from complying. Furthermore, if the court were required to look at the "context" in which an undertaking was given in order to ascertain whether an undertaking which was clear on its face ought to be complied with, motions arising from undertakings would be endless and enormously costly to litigants.[^79]

[325] With respect to undertakings 2, 3, 4, 5, and 7, MNC seeks to resile from its undertakings and replace its undertaking to answer a question with the answer “MNC will comply with the Rules and provide this information when available.” That is not how one fulfils an undertaking.

[326] An undertaking, once given, must be fulfilled. Even where counsel could have taken a question under advisement and subsequently answered that question with “MNC will comply with the Rules and provide this information when available,” that option is no longer available once counsel gives an undertaking. Undertakings are solemn, if not sacred, promises made by lawyers to one another, the public, and the court.[^80] They are integral to the practice of law and the operation of the justice system. When an undertaking is breached, it reflects not only on the integrity of the member of the profession that gave the undertaking, but also on the integrity of the profession as a whole.

[327] I order MNC to fulfill undertakings 2, 3, 4, 5, and 7 with complete and thorough answers within 10 days of the release of these reasons for decision. I note that the subject matter of undertaking 7 appears to be the same as refusal 17. Having given an undertaking 7, refusal 17 is inappropriate and it too should be answered. MNC should not expect any further extension of time to fulfill these undertakings.

[328] With respect to undertaking 1, it appears that MNC has now provided an answer to that undertaking. I decline to order further relief in respect of undertaking 1.

[329] With respect to undertaking 6, I disagree with MNC that it was limited to asking whether or not MNC was asserting the tort of conspiracy. In my view, fairly read, the undertaking was to advise MMF “what causes of action are being advanced.” I order MNC to advise MMF within 10 days of each and every cause of action it is asserting against each and every defendant in this action. MNC should not expect any further extension of time to fulfill this undertaking.

[330] With respect to undertaking 8, MMF asked if there were any insurance policies on behalf of MNC that are responsive to President Chartrand’s counterclaim. Counsel for MNC stated that “we’re not aware of any. If there are any we will let you know.” MNC now states it “is in the process of searching for relevant and responsive information and will respond when able, to the extent such response is relevant and not privileged.”

[331] That is not how one answers an undertaking. I order MNC to advise MMF within 10 days whether or not it has identified any insurance policies on behalf of MNC that are responsive to President Chartrand’s counterclaim and to keep that answer current and correct until the trial of this action. MNC should not expect any further extension of time to fulfill this undertaking.

[332] In undertaking 9, MNC gave an undertaking “to advise what parts of the bylaw Mr. Chartier was in breach of when he received payment from the MNC upon his retirement.” MNC has now responded that it “alleges that Mr. Chartier was in breach of, among other sections, the portions of the bylaw addressing how decisions must be voted on by a majority of voting governors.” (emphasis added)

[333] MNC has not provided a complete answer to this undertaking because it included the qualifier “among other sections.” Mr. Chartrand is entitled to know each and every part of the bylaw MNC is alleging that he breached. I order MNC to provide MMF within 10 days of the release of these reasons for decision a complete answer to this undertaking identifying each and every provision of the bylaw upon which it relies. MNC should not expect any further extension of time to fulfill this undertaking.

[334] In undertaking 11, MNC undertook to answer the following question. MMF sought the following undertaking and MNC has now provided the following response:

Q. To advise if members of the Board of Governors or senior people at MNC had discussions with Ms. Laliberte about these issues (gifting of the watch, etc.) and to provide their recollections of the content of those discussions.

[335] In its factum on this motion, MNC has now given this response:

A. MNC is in the process of speaking with senior people at MNC to search for relevant and responsive information. MNC will respond when able, to the extent such response is relevant and not privileged.

[336] This undertaking was given almost six months ago, on March 23, 2023, and, in my view, remains unfulfilled. I order MNC to fulfill this undertaking with a complete and responsive answer within 20 days of the release of these reasons for decision.

[337] I am satisfied that MNC has completely answered undertaking 12 and I order no further relief in respect of it.

Refusals related to the investment account at Richardson GMP

[338] MMF seeks an order requiring MNC to answer five refusals related to MNC’s pleading regarding the control and direction of an investment account at Richardson GMP.[^81] MMF asked President Caron a series of questions arising out of paragraph 71(b) of MNC’s statement of claim. The pleading states:

71. Pursuant to the provisions of the MMF Service Delivery Agreements, Chartier, Chartrand, MMF and Watteyne arranged for, among other things:

(b) the establishment of an investment account at Richardson GMP in the name of MMF, which is solely under the control and direction of MMF or its investment advisors;

[339] MNC, therefore, pleaded the material fact that Chartier, Chartrand, MMF and Watteyne arranged for the establishment of the investment account in the name of MMF solely under its control or under the control of its investment advisors.

[340] MMF disputes this assertion and attempted during the examination to see if MNC, through President Caron (its representative at the examination for discovery), would agree that the pleaded material fact was not true. During an earlier cross-examination, counsel for MMF showed President Caron MNC documents that appeared to contradict MNC’s pleading. These documents included audited MNC financial statements that listed the investment account as an MNC asset, account opening documents showing that the document was opened in the name of the MNC, and account statements that listed MNC as the account holder.

[341] Counsel for MNC refused to allow President Caron to answer a series of questions seeking an admission that the pleading relating to control of the investment account was incorrect. The questions were refused, it appears, because the documents shown to President Caron, were marked as exhibits on the cross-examination, but had not been delivered to MNC.

[342] On June 27, 2023, MMF provided copies of the documents at issue to counsel for MNC. Despite this, MNC did not immediately respond to the refused questions. In its factum dated July 28, 2023, MNC offered the following answer to each question:

MNC is in the process of reviewing the records provided by counsel for MMF on June 27, 2023, and will respond when able, to the extent such responses relevant and not privileged.

[343] This response and the delay in answering the questions is unacceptable. MNC has had the documents since June 27, 2023. The questions asked by MMF are clear and straightforward. Several of the documents provided by MMF came from MNC’s own records.

[344] MMF is entitled to have the MNC discovery representative answer, on the record, whether she acknowledges that the pleading is incorrect. MMF is entitled to ask questions and obtain answers that may destroy MNC’s case against it. Obtaining admissions to narrow the issues in dispute is one of the purposes of an examination for discovery.[^82]

[345] Moreover, MMF is entitled to an answer to its question about whether or not President Caron knew the pleading was inaccurate before the examination for discovery. Indeed, that question should have been answered on the record at that time. No further examination of any documents was required for President Caron to answer that question.

[346] I order MNC to provide a complete and substantive answer to refusals 9, 10, 13, 14, and 15 within 10 days of the release of these reasons for decision. MNC should not expect any further extension of time to provide these answers.

Status of Six Ontario New Historic Communities

[347] MMF asks the court to order MNC to “confirm whether it is the MNC’s position that the six Ontario new historic Métis communities fall within or don’t fall within the historic Métis Nation Homeland.”[^83]

[348] MMF asked this question because in an affidavit that President Caron swore to be true for the purposes of this action, she stated “in August 2017, MNO announced the recognition of six new Métis communities in Ontario, only one of which was within the historic Métis Nation homeland.” MMF asked for MNC’s position on whether or not five of the six new Métis communities fell outside the historic Métis Homeland.

[349] MNC has maintained its refusal to answer this question. It submits as follows:

MNC’s position on the MNO communities is not relevant to the question of whether the Primary Defendants acted in breach of their fiduciary duties and legal obligations owed to MNC.

[350] I disagree. Having included the issue in President Caron’s affidavit, MNC should explain whether it adopts or denies that statement, even if MNC believes that it was just summarizing statements in the affidavits of others.

[351] Also, given that MNC asked me to order Ms. McKay to provide her “understanding of MMF being permitted to withdraw from the MNC as a result of MNC not living up to the definition of Métis,” I do not accept MNC’s submission that its answer to this question is irrelevant. MNC is clearly in a better position to answer this question than Ms. McKay is able to answer the questions that MNC posed to her.

[352] I order MNC to provide a complete and substantive answer to refusal 16 within 20 days of the release of these reasons for decision.

The MNC Comprehensive Review

[353] The MMF has pleaded in its statement of defence that President Caron has publicly relied on the results of a “comprehensive review” to justify the commencement of this action. During the examination for discovery

31 Q. So, President Caron, you took office on September 30, 2021; correct?

A. Correct.

32 Q. Were you contemplating litigation against the MMF and President Chartrand on September 30th, 2021?

A. No. Okay.

33 So it was some point after that?

A. Yes.

34. Q. And it was after you had received some results or some outcomes from this comprehensive review; correct?

A. Yes. It wasn't before any review started.

[354] MNC asked for production of certain records related to this review.[^84]

[355] First, on March 22, 2023, MMF asked MNC “To produce any minutes from the Board of Governors meeting in which the comprehensive review was discussed or raised.” MNC initially took this question under advisement and its current position is that:

MNC is in the process of searching for relevant and responsive information and will respond when able, to the extent such responses relevant and not privileged.[^85]

[356] It seems to me that if the comprehensive review revealed information that precipitated the commencement of this action, that information and those documents are relevant and producible. MMF asked a very small question, concerning a very discrete and readily identifiable category of documents. MMF asked this question six months ago. A complete answer is long past due. I will address this issue and the potential privilege issues below.

[357] Second, MNC also asked MMF to produce relevant documents related to the comprehensive review. MNC refused to answer this question.[^86] The question and the explanation for the are as follows:

55. To produce all correspondence, emails, text messages, and any other documents relating to the comprehensive review excluding privileged documents, which are to be separately identified and listed in a Schedule B.

Refused – this request is overbroad and certain of this correspondence is subject to solicitor client privilege.

[358] I do not accept either of the two rationales offered by MNC for its refusal to produce these documents. First, MNC objects to producing these documents because “certain of this correspondence is subject to solicitor client privilege.” The complete answer to this objection is that MMF did not ask for privileged documents. MMF expressly excluded privileged documents from its request.

[359] Second, MNC submits this request is overbroad. I disagree. It appears that the comprehensive review was the catalyst for this $15 million action. The complete record of what MNC learned, and how it learned what it learned should be produced to the defendants who now have to respond to MNC’s claim.

[360] MNC is entitled to maintain appropriate claims of solicitor-client communication privilege and litigation privilege. If it wishes to maintain a claim for common interest privilege, as suggested in its response to question 125 that it took under advisement, it must explain the basis for such a claim, as it is not self-evident who else would share a common interest in this litigation with MNC.

[361] I order MNC to answer questions 53, 55, 66, 125, and to produce all documents requested in those questions. To the extent that MNC wishes to assert a claim of solicitor-client communication privilege, litigation privilege, or common-interest privilege, over any such document it must catalogue that privilege claim in a detailed Schedule B. Any such claims must provide sufficient detail for MMF to assess and, if necessary, challenge the privilege claim. I order MNC to provide the non-privileged documents and its detailed schedule B within 21 days of the release of these reasons for decision.

Documents relating to the lease at 180 Elgin Street

[362] In paragraphs 76 to 85 of its statement of claim, MNC pleads that certain of the defendants breached their fiduciary duties to MNC in April 2021 by causing MNC it to enter into an improvident lease at 340 MacLaren Street in Ottawa with rent that was “much higher than the fair market rent.”

[363] MNC subsequently signed a new lease for premises at 180 Elgin Street in Ottawa. President Caron stated during her examination that MNC conducted a market study prior to signing the lease.

[364] MMF asked five questions during its examination for discovery that sought to obtain documents related to the market study and the new lease. MNC refused to produce the documents on the basis that they were irrelevant.[^87] It makes the following submissions in support of its position:

MNC maintains its refusals to these questions on the basis that after-the-fact information about events that took place following the impugned actions of the defendants, including MMF and Chartrand, with regard to the lease of 180 Elgin Street are not relevant to the issues pleaded. At any rate, even if the lease relating to 180 Elgin Street were related to issues pleaded, there is no evidence that the property at 180 Elgin Street is comparable to the property at 340 MacLaren Street. To the contrary, counsel for MMF confirmed that the property at 340 MacLaren Street was "a heritage property" whereas the property at 180 Elgin Street was "more of a traditional office space" …. As a result, nothing probative could arise from particulars of MNC's current lease at 180 Elgin Street.

[365] I disagree. The documents related to the market study may provide relevant evidence to assess MNC’s pleading that the new lease at 340 MacLaren Street was improvident. The lease at 180 Elgin Street would be evidence relevant to MNC’s assertion that the rent was too high under 340 MacLaren Street lease. Moreover, the lease at 180 Elgin Street would be relevant to any damages calculation the trial judge may be required to undertake, including an assessment of MNC’s efforts to mitigate its loss. MNC may need to call evidence to provide context for these documents, but they are clearly relevant.

[366] I find that all of the questions are relevant. I order MNC to answer questions 179, 181, 186, 192, and 196, and to produce all documents requested in those questions within 10 days of the release of these reasons for decision.

Power Law Records

[367] In its statement of claim, MNC has asserted that President Chartrand authorized improper settlement payments to certain employees and consultants. In his statement of defence, President Chartrand pleaded that he relied on legal advice he received from Power Law, which was MNC’s external counsel at the time.

[368] On March 23, 2023, MMF and President Chartrand requested production of the relevant Power Law files.

We'd like an undertaking for all of Power Law's files relating to the consultant defendants, the consulting agreements, including negotiation of contracts, any research, all advice provided in respect of the agreements, their terms, any correspondence having anything to do with the contracts, agreements with our clients, the defendants, that were given to anyone at MNC.[^88]

[369] In its factum, dated July 28, 2023, MNC states that “MNC is still awaiting documents from Power Law, but has not received confirmation as to when the complete file will be delivered. Once received, MNC will search for relevant and responsive information and will respond when able, to the extent such response is relevant and not privileged.”

[370] MMF made its request over six months ago. MNC’s response is not acceptable. I order MNC to obtain the entirety of the Power Law file and to confirm to MMF that it has obtained the entirety of the file within 7 days of the release of these reasons for decision.

[371] If MNC cannot provide this confirmation within 7 days, I order MNC, a representative of Power Law, and all other counsel to attend a case conference with me within 10 days of the release of these reasons for decision. At that time, I will expect a full explanation of why Power Law has not delivered the contents of its file to MNC in the last six months. I will expect MNC, in advance of that case conference, to provide me with all correspondence between MNC and Power Law related to MNC’s attempts to obtain this file. I trust counsel will work diligently to ensure that such an attendance is not required.

[372] I also order MNC to review the Power Law file and to produce all relevant documents within 10 days of its receipt of the file. To the extent that MNC wishes to assert a claim of solicitor-client communication privilege, litigation privilege, or common-interest privilege over any such document, it must catalogue that privilege claim in a detailed Schedule B. Any such claims must provide sufficient detail for MMF to assess and, if necessary, challenge the privilege claim. For clarity, when assessing its potential privilege claims, I direct MNC to fulfill its undertaking to “waive privilege on the communications that Power Law had with Mr. Chartrand as it pertained to the negotiation of your clients’ contracts.”

Priorities and Planning Commission records of decision

[373] One of the core defences advanced by the MMF and President Chartrand is that “the PPC functioned to deal with various matters of MNC business and was empowered to make decisions and take actions on behalf of the MNC and bind the MNC.” These defendants also plead that that the “existence of the PPC and its activities were known to, and accepted by, the MNC Board of Governors and the Governing Members.” These defendants have asked the MNC to produce the PPC records of decision from 2003 to date, which appear to be solely in control of the MNC. MNC submits that this is a “make work” project and refused to answer the questions.[^89] It submits as follows:

As per MNC's responses to undertakings, all PPC Records located that relate to the matters at issue in this litigation have already been produced. In President Chartrand's affidavit sworn in connection with the Preservation Motion, he stated that he sat on the PPC continuously from its inception in 2003…Despite this, MMF has not provided any evidence to even suggest that PPC records beyond those that have already been produced would tend to prove or disprove allegations in this litigation, To require MNC to conduct an additional search for all existing PPC Records over an 18-year period without any regard for the question of whether any such records are relevant to the issues being litigated would be excessive and disproportionate in light of the lack of evidence suggesting probative value of such additional records.

[374] I have some sympathy for MNC’s submissions regarding the temporal scope of the request. However, it is clear that MNC disputes President Chartrand’s evidence related to the past practice of the PPC, the scope of its authority, and the knowledge within the MNC of how the PPC operated. Records of how the PPC operated outside of the crucible of the matters directly at issue appear to me to be relevant to the broader issue of how the PPC operated, and the extent of its de jure or de facto authority. Moreover, MNC did not provide any submissions on how difficult or time consuming this task would be.

[375] I direct MNC to produce copies of all PPC Records of Decision in its power, possession and control from 2010 to date within 30 days of the release of these reasons for decision. In my view this is a proportionate response given the scope of this litigation. Once these documents are produced, MMF may raise the issue of the production of further records, but I will expect a strong and coherent rationale for why additional records beyond the last 13 years are necessary to adjudicate this dispute fairly.

Board of Governors and General Assembly Records

[376] MMF has requested that MNC produce all minutes of Board of Governors meetings and General Assembly minutes and resolution in its power, possession and control from 2003 to date. MMF advises that these documents are solely in the MNC’s possession and control. MNC refused to provide these records.[^90]

[377] MNC takes the position that it has produced the minutes from the Board of Governors meetings that are relevant to the issues in this litigation. Like the PPC records discussed above, MNC submits that this is a make-work project and is not a proportionate request.

[378] However, it is the MNC that started this litigation that puts the role and responsibility of the Board of Governors right at the centre of its $15 million case. The parties have very different positions on core issues of governance. It seems to me that a broad range of the minutes are necessary to get a complete and fair picture of how the Board of Governors operated, subject only to a reasonable temporal limit. Like the PPC records, it seems to me that seeing records of meetings of the Board of Governors that took place outside of the meetings directly at issue in this proceeding are required to assess fairly the parties’ competing claims.

[379] I direct MNC to answer refusals 8, 9, 18, and under advisement 23, and to produce all of the records requested from 2010 to date within 30 days of the release of these reasons for decision. In my view this is a proportionate response given the scope of this litigation. Once these documents are produced, MMF may raise the issue of the production of further records, but I will expect a strong and coherent rationale for why additional records are necessary to adjudicate this dispute fairly.

MNC Settlement with Ke Ning

[380] MMF has requested documents related to the termination of MNC employee Ke Ning. MNC initially took the questions under advisement and subsequently indicated that it would refuse to answer them.[^91]

[381] MMF takes the position that MNC has accused President Chartrand of paying improvident settlements to terminated employees. Therefore, documents related to the termination of an MNC employee without his involvement, are relevant to assessing how the MNC handled the termination of employees.

[382] MNC, in contrast, takes the position that “Ke Ning is not a party to this litigation and her termination is not relevant or connected to any of the issues in this litigation.”

[383] I do not understand how MNC can simultaneously take the position that I should order Mr. Chartier to answer questions about his relationship with Ke Ning (see paragraphs [16] to [21]) but that MNC should not be required to disclose documents related to her termination. Recall for example that MNC requested answers to the following questions:

587. Can you describe your relationship with Ke Ning throughout? Was it purely professional or did you have a social relationship with her as well?

588. Did you know that John Weinstein had a personal or intimate relationship with Ke Ning?"

589. but at the time that the money is advanced, did you understand that John Weinstein was in a relationship, a personal relationship, with Ke Ning?"

[384] MNC offered no basis for why these questions were relevant. MMF, on the other hand, has clearly linked the Ke Ning termination and settlement documents to MNC’s allegations against Mr. Chartrand.

[385] I find that all of the questions asked by MMF are relevant. I order MNC to answer questions 301, 305, 309, and 311 and to produce all documents requested in those questions within 14 days of the release of these reasons for decision.

Re-audit by Baker Tilly

[386] On March 23, 2023, MMF asked President Caron and MNC to provide a copy of the re-audit performed by Baker Tilly on the MNC financial statements and to provide a copy of all of MNC’s current financials, 2021, 2022, both audited and unaudited, including all quarterly financial statements.

[387] In its factum filed on July 28, 2023, MNC stated that it was “in the process of searching for relevant and responsive information and will respond when able, to the extent such response is relevant and not privileged.”

[388] MMF made its request over six months ago. MNC’s response is not acceptable. I order MNC to answer question 501 as follows.

[389] First, I infer that MNC has in its possession some of the documents requested by MMF. I order MNC to review and produce all relevant and responsive documents currently within its possession to MMF within 10 days of the release of these reasons for decision. MNC should not expect any further extension of time to provide these answers.

[390] Second, I also infer that some of the documents may be solely in the possession of Baker Tilly. I order MNC to obtain all necessary documents from Baker Tilly and to confirm to MMF that it has obtained the documents within 7 days of the release of these reasons for decision.

[391] If that does not occur, I order MNC, a representative of Baker Tilly, and all other counsel to attend a case conference with me within 10 days of the release of these reasons for decision. At that time, I will expect a full explanation of why Baker Tilly has not provided MNC with the documents necessary in the last six months. I will expect MNC to provide me with all correspondence between MNC and Baker Tilly related to MNC’s attempts to obtain these documents. I trust counsel will work diligently to ensure that such an attendance is not required.

MNC retainer and authority to commence litigation

[392] On March 23, 2023, during her examination for discovery, President Caron confirmed that the Board of Governors of MNC authorized the commencement of this litigation through a resolution of the board. MMF asked MNC to produce a copy of that resolution. MNC took that question under advisement.[^92]

[393] In its factum filed on July 28, 2023, MNC stated that it was “in the process of searching for relevant and responsive information and will respond when able, to the extent such response is relevant and not privileged.”

[394] Over six months ago, MMF requested production of a specific resolution of the Board of Governors. MNC should have been able to locate and produce this document in six days, much less six months. MNC’s response is not acceptable. I order MNC to produce the resolution within 10 days of the release of these reasons for decision. MNC should not expect any further extension of time to produce this document.

[395] MMF asked a MNC number of other questions about the litigation including that MNC disclose:

a. who is paying the legal fees for MNC’s counsel;

b. whether MNC’s counsel has a joint retainer with any of MNC’s governing members; and

c. which governing members are in a joint retainer agreement with the MNC with respect to this litigation.

[396] I decline to order MNC to answer these questions. I do not think there is a factual underpinning to these questions, and I do not think the answers would advance the litigation constructively at this time.

[397] However, if MNC continues to assert a “common-interest privilege” over any document that it would otherwise be required to produce, the defendants may raise this issue again in a case conference with me.

Costs

[398] I encourage the parties to resolve the costs of these motions.

[399] If the parties are not able to do so, the defendants may each deliver their costs submissions of no more than three double-spaced pages to my judicial assistant on or before October 6, 2023 .

[400] MNC may deliver its global responding submission of no more than 8 double-spaced pages on or before October 13, 2023.

[401] No reply submissions are to be delivered without leave.

Robert Centa J.

Date: September 28, 2023

[^1]: The plaintiff in the action is the Métis National Council Secretariat Inc., a not-for-profit corporation. The Métis National Council is an unincorporated entity formed as a national association of provincial Métis organizations and governed by the traditions, practices and customs of the Métis Nation. For the purposes of this motion, I will use the defined term “MNC” to describe the plaintiff, as that is the shortform used by the plaintiff in its materials filed on this motion. I will distinguish between the two entities where more precision is necessary. [^2]: The plaintiff also sought further and better answers from the defendant Storm Russell, but the parties agreed to adjourn this portion of the motion. The parties may bring this matter back before me at a case conference if necessary. [^3]: Rules of Civil Procedure, R.R.O. 1990, Reg 194. [^4]: 2011 ONSC 2504, at para. 129; O’Brien et al. v. Horychuk et al., 2023 ONSC 2739, at para. 65. [^5]: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. [^6]: R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 33. [^7]: See generally Berry v. Scotia Capital Inc., 2014 ONSC 5244, at paras. 11-12; Siemens Canada Limited v. Sapient Canada Inc., 2014 ONSC 2314, at para. 55; Friends of Lansdowne v. Ottawa, 2011 ONSC 1015, at para. 15. [^8]: Refusals 1, 2, and 3 (Q. 587, 589, and 612). [^9]: Refusal 4 (Q. 1037). [^10]: Refusals 5 and 6 (Q. 901 and 916). [^11]: Chertsey Developments Inc. v. Red Carpet Inns Ltd. (Master’s Ch.) (1990), 1990 CanLII 6993 (ON SC), 74 O.R. (2d) 665 (S.C.). [^12]: Refusals 7 and 8 (Q. 975 and 976). [^13]: Refusal 9 (Q. 1149). [^14]: See, for example, The Estate of Maryam Asharzadeh v. Amin, 2019 ONSC 1024, at para. 22, and the cases cited in that paragraph. [^15]: Refusal 10 (Q. 1357). [^16]: Undertaking 1 (Q. 326-328), repeated as undertaking 2 (Q329-335). [^17]: Undertaking 3 (Q. 344-347). [^18]: Under advisement 1 (Q. 98-100). [^19]: Generally, relevant documents should be produced in unredacted form. If the producing party wishes to redact information from the documents, absent consent of the other party, the burden is usually on the producing party to obtain court approval for such redactions: FCP (BOPC) Ltd. v. Suzy Shier (Canada) Ltd., 2023 ONSC 3228, at para. [34](https://www.canlii.org/en/on/onsc/doc/2023/2023onsc32