Court File and Parties

COURT FILE NO.: CV-21-00076834 DATE: 2024/01/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROACH, Nicole -, Plaintiff AND: Estate of Daryl Roach et al -, Defendants

BEFORE: Justice Bordin

COUNSEL: MAJIC, Sandra - Counsel, for the Plaintiff MERRILEES, Christopher, for the Defendant

HEARD: January 17, 2024

Endorsement

Nature of the action and the motion

[1] The pleadings are detailed. I do not repeat the allegations here. In short, the plaintiff claims an interest in property that was owned by her deceased father, Daryl, and his second wife (the plaintiff’s stepmother), Rose. Rose denies that the plaintiff has an interest in the property and seeks damages related to delay and costs incurred by the defendant due to the alleged improper registration of a CPL by the plaintiff. The defendant says that if the plaintiff is found to have an interest in the property, then the plaintiff must pay back the costs of the property incurred by the defendants with respect to the property.

[2] The parties bring cross-motions to compel answers to undertakings, questions taken under advisement and refusals.

Applicable law on undertakings and relevance of questions

[3] The parties do not disagree on the law to be applied with respect to undertakings and refusals. I agree with the law as set out in paragraphs 13 - 16 of the amended factum of the plaintiff dated January 3, 2023, and paragraphs 7-10 of the factum of the defendant dated November 8, 2023.

[4] At paragraph 129 of Ontario v. Rothmans Inc., 2011 ONSC 2504, 201 ACWS (3d) 341, 5 CPC (7th) 112 the court sets out a helpful summary of the applicable legal principles:

• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings.
• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted.
• Under the former case law, where the rules provided for questions “relating to any matter in issue,” the scope of discovery was defined with wide latitude and a question would be proper if there is a semblance of relevancy. The recently amended rule changes “relating to any matter in issue” to “relevant to any matter in issue,” which suggests a modest narrowing of the scope of examinations for discovery.
• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds (“Discovery is intended to be an engine to be prudently used for the extraction of truth, but it must not be made an instrument of torture …”) (“The discovery process must also be kept within reasonable bounds.”). The court has the power to restrict an examination for discovery that is onerous or abusive.
• The witness on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue.
• The witness on an examination for discovery may be questioned about the party’s position on questions of law.

[Internal citations omitted.]

[5] Relevance is concerned with the logical tendency of evidence to prove a fact. “To determine whether an item of evidence is relevant, a judge must decide whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a fact more probable than it would be otherwise”: R v Candir, 2009 ONCA 915, at para 48.

Defendant’s Undertakings, Under Advisements and Refusals

[6] I will deal first with the plaintiff’s motion on the defendant’s undertakings, under advisements and refusals.

[7] Counsel advised that the most up-to-date chart of undertakings, questions taken under advisement and refusals is found as an exhibit to Taylor McDonald’s affidavit sworn January 15, 2023. I refer to the undertakings, questions taken under advisement and refusals by their numbers as set out in that chart and to the CaseLines page numbers of the chart.

Undertaking 23 [A1560 – Master Bundle] and Under Advisement 6 [A1565-1566]

[8] The parties concede that undertaking 23 and under advisement 6 are related questions and can be considered together.

[9] The plaintiff says undertaking 23 has not been answered and under advisement 6 is a different question. The defendant says undertaking 23 was addressed in subsequent questioning and answered, and a similar question was taken under advisement in under advisement 6. In my view, undertaking 23 was vague and was answered at discovery in the subsequent exchange of questions and answers.

[10] Undertaking 23 was for Rose to advise of her position on Nicole’s statements as to her steps to try to address the order. The question is vague. It is not clear what the statements are. Defence counsel then suggested the defendant be questioned about the undertaking. The questions that follow are in follow up to the question in the undertaking. Question 414 asks, as far as it is possible to tell from the transcript, the same question again. The defendant answers the question. Plaintiff’s counsel, not satisfied with the answer, asks the defendant to advise of her position as to whether the City’s order to comply has been completed. This question is taken under advisement (No. 6). The plaintiff says that the question required an answer as to the defendant’s understanding as of the time the question was asked at discovery.

[11] Notwithstanding that the question was taken under advisement, the defendant provided an answer that it was up to the city to decide whether the order has been completed.

[12] The question in under advisement 6 is relevant to the issues pleaded in paragraphs 137 and 138 of the statement of defence and Counterclaim. The question is to be answered. The answer given does not answer the question. The defendant shall advise, as of the date of discoveries, what was her understanding as to whether the city order to comply had been complied with and completed.

Under Advisements 3 and 4 [A1564]

[13] In these questions the plaintiff seeks production of correspondence involving the property management company which relates to the property in issue and the plaintiff.

[14] The plaintiff says these documents are relevant because the defendant pleads at paragraphs 96 – 103 of the defence and counterclaim that a property management company was hired due to the plaintiff’s actions, statements and treatment of other tenants. At paragraph 140 the defendant seeks repayment of amounts paid should the plaintiff be found to be the beneficial owner of the property in question. The defendant says this communication is irrelevant because the retainer of the management company postdated the death of Daryl.

[15] In my view, the requested correspondence is relevant to the issues pleaded. The defendant shall produce all communications in her possession which involve the property management company, and which concern the property in question and the plaintiff. The plaintiff shall also request such communications from the property management company.

Under Advisement 7 [A1566-A1567] and Refusal 1 [A 1569-1560]

[16] The parties agree that under advisement 7 and refusal 1 are connected as they are essentially the same question. The answer provided by the defendant to both is the same.

[17] Essentially, the plaintiff seeks to have the defendant review invoices she has tendered and advise whether the defendant agrees which of the invoices represent expenses for the property in question. The question is relevant to the plaintiff’s claim for an interest in the property.

[18] The defendant in essence responds that she is unable to answer the question without further information from the plaintiff. The plaintiff complains that this answer is not credible. That does not mean the question was not answered. It was answered. However, the answer begs further questions. The plaintiff may continue her examination of the defendant to explore this question and answer further.

Under Advisement 10 [A1568-A1569]

[19] The plaintiff asked the defendant to advise if there were more operating costs on the other property owned by Daryl than at the subject property. The plaintiff says this information is relevant because the defendant in her crossclaim seeks to recover costs paid by the defendant with respect to the subject property if the plaintiff is found to be the owner of the property. The plaintiff says the costs of the property management company are inflated.

[20] The defendant says the other properties are different properties with different maintenance and repair needs and the operating costs of these unique properties are not relevant to the issues in the action.

[21] The plaintiff acknowledges receiving the invoices from the property management company. The parties concede the management company did not manage the other properties. In my view, the information sought is not relevant and the question is not required to be answered.

Plaintiff’s Undertakings

[22] I turn now to the defendant’s motion on the plaintiffs’ undertakings, under advisements and refusals.

Under Advisement 5 [B 1560]

[23] At her discovery, the plaintiff said that her former partner, Jerry Sicurella, possibly or probably was present during discussions with her father concerning the plaintiff’s interest in a property. Under oath, the plaintiff said she did not have Mr. Sicurella’s contact information but that she could reach out to check if she could get it. Her counsel said he would take it under advisement because he did not know if there was a reason why the plaintiff had no contact with her former partner.

[24] The plaintiff says there is no evidentiary basis to support the assertion that Mr. Sicurella possibly has relevant evidence. That this is incorrect is evident from the transcript of the plaintiff’s discovery.

[25] Mr. Sicurella is a potential witness to the plaintiff’s allegations in paragraphs 10 and 18 of her statement of claim. The plaintiff initially took the position that the information was irrelevant. 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: Rule 31.06(1). The question is a proper question.

[26] In submissions, the plaintiff submitted that there was a restraining order against Mr. Sicurella, but it is not in evidence.

[27] The plaintiff shall advise the defendant if she has the contact information for Mr. Sicurella or is able to lawfully obtain his contact information directly or through counsel, and if able to obtain the contact information, shall provide it.

Under Advisement 6 [B1560]

[28] At her discovery, beginning at question 333, the plaintiff said that the tenants could substantiate the fact that she was attending at the property three times a week. She gave the name of JR. Digs. She said she had his contact information. A request was made for his contact information which plaintiff counsel took under advisement. The plaintiff then took the position that the information was irrelevant, that she did not have contact with this individual, and he was no longer a tenant.

[29] The parties advise that the plaintiff did eventually provide contact information for the former tenant in the form of social media “handles” and information available online. The defendant says this is not enough and wants to know whether the plaintiff has other contact information for the former tenant.

[30] The plaintiff says that her client does not have further information, but this is not in evidence. The plaintiff shall advise whether she has any further personal contact information for JR. Digs.

Under advisement 12 B1651

[31] The plaintiff provided statements of possible witnesses in her affidavit of documents. There are 25 statements, by 23 different individuals. The defendant says that contact information had been provided for only 9 of the individuals, 14 had no contact information and of those, contact information was provided for only three individuals leaving 11 with no contact information. The defendant seeks the missing contact information.

[32] The plaintiff says that the contact information for all the individuals which was available and which the witnesses were willing to provide is found in the statements in the affidavit of documents and that she has advised the defendant that she does not have any other contact information for these witnesses. The plaintiff defendant could not point out to the court where in the volumes of materials before me this information was provided to the defendant.

[33] The defendant said she would be satisfied with written confirmation that the plaintiff has no further information to provide with respect to these individuals who provided statements. The plaintiff shall advise the defendant in writing where the contact information for the individuals who gave statements is to be found in the documents produced and shall advise if she has any further contact information regarding these individuals and if so, provide it.

[34] One witness who gave a statement, Audrey Roach, does not wish to have her contact information disclosed. The defendant acknowledges this information was communicated to her. The defendant withdraws the request with respect to Audrey Roach.

Refusal 11 B1566.

[35] The defendant seeks all communications between the plaintiff and her lawyer with respect to City directives. Such communications are subject to solicitor and client privilege. The plaintiff objects to their production on that basis. The plaintiff also says it is irrelevant.

[36] The City directives are relevant to what work was and is being done on the property by each party.

[37] The defendant says that solicitor and client privilege has been waived because an email dated April 25, 2022, from the plaintiff to her lawyer which discusses city directives which have been completed and have not been completed was produced by the plaintiff.

[38] The cases tendered by the defendant set out the following legal principles. Solicitor-client privilege should be interfered with only to the extent necessary to achieve a just result: Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860. Waiver of privilege can be either express or implied. Waiver of privilege as to part of a communication has been held to be waiver as to the entire communication. Courts have held that waiver of solicitor-client privilege may occur in the absence of an intention to waive, where fairness and consistency so require.

[39] The defendant concedes that if there is nothing further in the April 25, 2022, email then it constitutes the entire communication. The plaintiff shall produce, if she has not already done so, the entire April 22, 2022, email chain as it relates to the city directives, but not as to any legal advice provided by the plaintiff’s lawyer. Anything further is not necessary to achieve a just result because the defendant concedes that she did not request the communications between the City and the plaintiff with respect to the City directives. If the defendant seeks this information, that is how the defendant should have obtained it.

[40] The parties have already made oral submissions on costs. The parties may serve and file a two page, double spaced cost submissions and are to forward to the attention of the judicial assistants in Hamilton any submissions and any relevant offers to settle by end of day January 25, 2024.

The Honourable Justice Bordin Date: January 17th, 2024