COURT FILE NO.: CV-20-00652038-00ES DATE: 202 50403 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE ESTATE OF CYRIL HIRSH ROSENTHAL, deceased BETWEEN: JONATHAN ROSENTHAL and BENJAMIN BARRETT Applicants – and – DAVID ROSENTHAL, in his capacity as Estate Trustee for the Estate of Joseph Rosenthal, SAMUEL ROSENTHAL, in his capacity as Estate Trustee for the Estate of Joseph Rosenthal, CHERYL ROSENTHAL, in her capacity as Estate Trustee for the Estate of Joseph Rosenthal, SYED PERVEZ, in his capacity as Estate Trustee of the Estate of Cyril Hirsh Rosenthal, RACHEL BARRETT, JACOB BARRETT, JOSHUA YUE ROSENTHAL-WANG and AVIVA MING ROSENTHAL-WANG Respondents Matthew Karabus and James Aston , for the Applicants Adam Stephens , for the Respondent, Syed Pervez David Wagner , for the Respondents, David Rosenthal, Samuel Rosenthal and Cheryl Rosenthal, in their capacities as Estate Trustees of the Estate of Joseph Rosenthal HEARD : January 10, 2025 REASONS FOR JUDGMENT A.A. SANFILIPPO J. Overview [ 1 ] Cyril Hirsh Rosenthal died on December 1, 2008 (the “Deceased”). He was an accountant who carried on practice with his long-time associate and colleague, Syed Pervez, in an accounting firm then known as Rosenthal Pervez. The Deceased left a last will and testament dated January 19, 2006 (the “Will”) that provided that the residue of his Estate would be divided and distributed to his grandchildren, two of whom were at that time minors. On July 6, 2009, the Deceased’s brother, Joseph Rosenthal, and Syed were appointed as trustees of the Deceased’s Estate (the “Estate Trustees”), in accordance with the Will. [ 2 ] A principal asset of the Estate is the ownership of all shares in the Deceased’s holding company, Tamstu-Harjon Holdings of Canada Limited (“Tamstu”). Tamstu’s primary holding is its interest in a Consulting Agreement dated August 6, 1978 (the “Consulting Agreement”), by which Tamstu claims entitlements in Paragon Protection Ltd. (“Paragon”). [ 3 ] The Estate Trustees deposed that the administration of the Estate was not straightforward. The Deceased suffered from dementia in the years leading to his death and they found that the Deceased’s affairs were in disarray, including non-compliance with tax requirements both by the Deceased personally, and by Tamstu. [ 4 ] On February 16, 2016, the Estate Trustees brought an Application to Pass Accounts, which was objected to by the Office of the Children’s Lawyer (the “Children’s Lawyer”) on behalf of the minor beneficiaries. On March 8, 2017, the Estate Trustees entered into a Memorandum of Understanding in resolution of the Children’s Lawyer’s objections, which required that the Estate Trustees “address Tamstu’s obligations to the Canada Revenue Agency (“CRA”)” and that the Estate Trustees “initiate a discussion” with Paragon for the purpose of monetizing and realizing on Tamstu’s interest in Paragon. Syed had, since about 2011, been providing external accounting services to Paragon, as had the Deceased until about 2015. [ 5 ] By 2020, Joseph, then 85 years of age, and Syed, then 71 years of age, had completed the Estate’s CRA Voluntary Disclosure Process and decided to retire as Estate Trustees, without having achieved any agreement with Paragon to monetize Tamstu’s interest. On November 26, 2020, the Deceased’s son, Jonathan Rosenthal, and the Deceased’s grandson, Benjamin Barrett (collectively, the “Applicants”), commenced this Application for an order removing Joseph and Syed as Estate Trustees and for an order for appointment as succeeding estate trustees in their place. Less than a month later, on December 17, 2020, the parties spoke to a Judgment on consent, granted by Justice Cavanagh (the “Judgment”), for the retirement of Syed and Joseph as Estate Trustees and their replacement by the Applicants, on terms that included an order that the Estate Trustees deliver to the Applicants all documents and other information in their “possession, power and control relating to the Estate and the administration of the assets and liabilities thereof” (the “Document Production Order”). [ 6 ] On July 21, 2021, Jonathan and Benjamin brought this Motion for a declaration that Joseph and Syed are in contempt of the Judgment by reason of their failure to comply with the Document Production Order. By the time this Motion was heard, all parties had retained new counsel, Joseph had died, resulting in the dismissal of the claim for a finding of contempt against him, and Jonathan, Benjamin and Tamstu became involved in litigation with Paragon and its owners, giving rise to overlap in the document production issue that is at the core of this Motion. [ 7 ] For the reasons that follow, I find that the Applicants have not proven, beyond a reasonable doubt, that Syed is in contempt of the Judgment. This Motion is dismissed. [ 8 ] For clarity, and considering that several parties share a surname, I will respectfully refer to the parties by their first names, in the same manner as was done by their lawyers in their written and oral submissions. I. THE EVIDENCE A. The Estate [ 9 ] The Deceased’s Will appointed Syed and Joseph as estate trustees, along with two other persons who renounced. Further to a probate application brought in court file number 01-1795/09 (the “Probate Application”), a Certificate of Appointment of Estate Trustee With a Will was granted on July 6, 2009 to Syed and Joseph (collectively, the “Estate Trustees”). [ 10 ] After providing for certain specific cash legacies, the Will provides that the residue of the Estate be divided, set aside and distributed in equal shares for “each grandchild of mine then living”. The residuary beneficiaries of the Estate are the Respondents, Joshua Yue Rosenthal-Wang, Aviva Ming Rosenthal-Wang, Rachel Barrett, Jacob Barrett and Benjamin Barrett. Two of the residuary beneficiaries, Joshua and Aviva, were minors at the time of the Deceased’s death (the “Minor Beneficiaries”), although only Aviva remains as a minor. The Children’s Lawyer appeared on behalf of the Minor Beneficiaries. B. Tamstu and its Interest in Paragon [ 11 ] The Applicants pleaded that the Deceased was a 10% shareholder in Centurion Investigation Ltd., which was acquired by Paragon in 1978. The Applicants contend that the Deceased caused Tamstu to acquire a 25% interest in Paragon in exchange for the Deceased’s 10% interest in Centurion, and that this is reflected in a Consulting Agreement dated August 6, 1978 (the “Consulting Agreement”). [1] The Applicants plead that the Consulting Agreement entitles Tamstu to 25% of the annual pre-tax profit of Paragon; to receive payment in priority to any payments made to Paragon’s shareholders; to repayment of a $250,000.00 loan; to be paid any unpaid profit on the sale of Paragon; and the right to acquire 25% of the equity of Paragon in the event of a sale to a third party. [ 12 ] Rosencrantz & Guildenstern Inc. (“R&G”) is the sole shareholder of Paragon. Ronald J. France and Donna France (collectively, the “France Family”) are the sole shareholders of R&G. C. The Memorandum of Understanding [ 13 ] On August 6, 2015, the Children’s Lawyer brought a motion in the Probate Application for an order that the Estate Trustees pass their accounts for the period from the Deceased’s death on December 1, 2008. By Order issued that day on the consent of the Estate Trustees, Justice Conway ordered that the Estate Trustees bring, within 120 days, an Application to pass accounts. [ 14 ] On February 16, 2016, the Estate Trustees brought an Application to pass their accounts for the accounting period from December 1, 2008 to May 31, 2015 (the “First Accounting Period”) in court file number CV-16-00002018-00ES (the “First Passing of Accounts Application”). [ 15 ] The adult beneficiaries, Rachel, Jacob and Benjamin did not appear in the First Passing of Accounts Application. On October 7, 2016, the Children’s Lawyer delivered a Notice of Objection which, after response by the Estate Trustees, was followed by a Final Notice of Objection dated February 10, 2017. Shortly after, on March 8, 2017, the Estate Trustees and the Children’s Lawyer entered into a Memorandum of Understanding (the “Memorandum of Understanding”) which outlined the steps to be completed to resolve the First Passing of Accounts Application. Specifically, the parties agreed that no further steps would be taken in the First Passing of Accounts Application until the following steps were completed: (a) The Estate Trustees addressed Tamstu’s obligations to the CRA. (b) The Estate Trustees “initiate a discussion, in consultation with the Children’s Lawyer, with the management of Paragon in respect of Paragon making a lump sum payment in exchange for Tamstu releasing its rights, pursuant to the Consulting Agreement, to the consulting fee payments and an option to purchase 25% of Paragon’s shares from R&G.” The Memorandum of Understanding set out a process for consideration of any offer from Paragon to buy out the interest of Tamstu, “[i]f Pargon makes an offer”. [ 16 ] I saw no dispute that the Estate Trustees addressed Tamstu’s CRA obligations. The parties dispute whether Syed and Joseph engaged in any discussions with Paragon for the purchase of Tamstu’s claims under the Consulting Agreement. Syed deposed that they did not have any such discussions. [2] Jonathan disagreed and deposed that the subject of monetizing Tamstu’s interest in Paragon was negotiated by the Estate Trustees with Paragon in 2017, but offers as support of this evidence only the inclusion of a term in the Memorandum of Understanding that calls for this to occur. [3] Benjamin deposed on November 26, 2020 that “[t]here are ongoing sensitive negotiations with respect to one of the largest assets in [the Estate] that Joseph and Syed are not interested in addressing”; that he and Jonathan “are prepared to step in”; and that, as of November 23, 2020, he and Jonathan began acting as de facto succeeding estate trustees. [4] D. This Application [ 17 ] On November 26, 2020, Jonathan and Benjamin commenced this Application for an order removing Joseph and Syed as Estate Trustees and for an order to be appointed as succeeding estate trustees, in their place. The Applicants also sought an order that Syed and Joseph forthwith deliver to the Applicants all documents and other information “in their power, possession, or control relating to the Estate and the administration of the assets and liabilities thereof.” [ 18 ] On December 17, 2020, the parties consented to the Judgment issued by Justice Cavanagh that provided the following orders: (a) the appointment of the Children’s Lawyer as the Litigation Guardian for the Minor Beneficiaries; (b) the retirement of the Estate Trustees without prejudice to their claim for executor compensation; (c) the appointment of Jonathan and Benjamin as succeeding estate trustees (collectively, the “Succeeding Estate Trustees”); (d) the Estate Trustees were ordered to “address the resolution of the First Passing of Accounts Application”, in accordance with the Memorandum of Understanding, which was annexed as a Schedule to the Judgment; (e) the Estate Trustees were ordered to commence, within six months, an Application to Pass Accounts for the period from June 1, 2015 to the date of the Judgment (December 17, 2020). Importantly, for the purposes of this Contempt Motion, in paragraph 5 of the Judgment, the Court ordered as follows: THIS COURT ORDERS that Joseph and Syed shall deliver, at the earliest possible convenience, to the Applicants all vouchers, statements, invoices, receipts, tax returns, accounts, notes and other documents and all other information in Joseph and Syed's power, possession, or control relating to the Estate and the administration of the assets and liabilities thereof (the “Document Production Order”). [ 19 ] Joseph deposed, and I accept, that he and Syed insisted on the Judgment specifying that they were retiring, as opposed to being removed, to make abundantly clear that they were voluntarily resigning after 11 years of acting as trustees, including three years of intense work in guiding the Estate through the CRA voluntary disclosure process. [ 20 ] In compliance with the Judgment, Joseph and Syed brought an Application to Pass Accounts in court file number CV-21-00664119-00ES for the accounting period from December 1, 2008 to May 18, 2021 (the “Second Passing of Accounts Application”). Jonathan and Benjamin delivered Notices of Objection in both the First Passing of Accounts Application and the Second Passing of Accounts Application. Both Passing of Accounts Applications remain outstanding pending the determination of this Motion. E. The Contempt Motion [ 21 ] On July 21, 2021, Jonathan and Benjamin brought this Contempt Motion, initially scheduled to be heard on November 29, 2021, for the following relief: (a) A declaration that Syed and Joseph are in contempt of the Judgment. (b) An order that Syed and Joseph shall immediately comply with the Document Production Order by delivering to the Applicants: (i) “ all vouchers, statements, invoices, receipts, tax returns, accounts, notes and other documents and all other information in Joe and Syed’s power, possession or control relating to the Estate and the administration of the assets and liabilities thereof.” (ii) “for the purposes of clarity, para. a(i) above includes the disclosure of all documents, statements, vouchers, and correspondence regarding the $166,794.00 owed by Tom Jones Steakhouse … to the Estate;” [ 22 ] The Contempt Motion was supported by an affidavit sworn by Jonathan on July 8, 2021 showing that on December 23, 2020, Jonathan sent emails to Syed asking for compliance with the Document Production Order, stating that the financial information regarding Paragon was of particular importance, and inquiring about the status of any negotiations with Paragon. Syed responded that he needed time to deliver the documents because of Covid restrictions and his schedule. [ 23 ] The written communications at this time between Jonathan and Syed and Syed’s lawyer, Robert O’Brien, were dominated by debate over an outstanding account owed to the Estate by Tom Jones Steakhouse (“Tom Jones”) for accounting services provided by the Deceased prior to the restaurant becoming insolvent, said to be in the amount of $166,794. The parties’ exchanges regarding disclosure of documents and information regarding this receivable largely occupied the parties’ written communication leading to the bringing of the Contempt Motion, and comprised at least 19 of the 56 paragraphs of Jonathan’s affidavit. [ 24 ] Jonathan deposed that he notified Syed that to advance discussions with Paragon in his role as a succeeding estate trustee for the purposes of the Consulting Agreement and the Memorandum of Understanding, he required “all of the court ordered documents”. Syed did not deliver documents to Jonathan until April 8, 2021, when four boxes of material were made available by Mr. O’Brien. Jonathan deposed that his review of the boxes of documents revealed that the materials did not contain financial documents, “particularly Paragon’s financials”. But Jonathan’s email to Syed of April 8, 2021 continued to emphasize issues regarding the Tom Jones account receivable. [ 25 ] On May 6, 2021, Jonathan wrote to Syed that he had reviewed the boxes of documents, that “it is clear that you still have not complied with the order of Justice Cavanagh”, and that “it is difficult for me to tell what is missing but please immediately provide copies of all emails sent and received in relation to the estate and please provide whatever other documents you have in your possession.” [ 26 ] On May 17, 2021, Mr. O’Brien notified Jonathan that he was re-engaged on behalf of Syed and Joseph and that he expected to deliver three more boxes of documents, which was done on May 18, 2021. On May 21, 2021, Jonathan notified Mr. O’Brien that he intended to retain counsel to advance a motion for contempt of the Judgment. F. The Abeyance of the Contempt Motion [ 27 ] The first hearing of this Contempt Motion proceeded on November 29, 2021 before Justice McEwen, whose Endorsement provides that the Applicants agreed, “for the time being”, to accept an affidavit from Syed, “which will be provided as soon as reasonably possible”. Justice McEwen ordered that the Contempt Motion be held in abeyance, ruling that “[t]he contempt matter will remain in abeyance for the time being pending a further order of this Court” (the “November 2021 Order”). [ 28 ] Syed delivered an affidavit sworn February 15, 2022, by which he deposed that the Deceased acted as accountant for Paragon in the preparation of financial statements “for many years from 1978 to his death [December 1, 2008]”. Jonathan later deposed that Paragon terminated the retainer of the Deceased in 2005, due to his deteriorating health. Syed deposed that he acted as external accountant for Paragon in the preparation of unconsolidated, ‘Notice to Reader’ financial statements after the Deceased’s death, and clarified in his cross-examination that this retainer began in 2011. Syed deposed that Paragon’s financial statements are the property of Paragon and that “the Succeeding Estate Trustees could request from Paragon release of their financial information” if there is a negotiation about a buy-out of Tamstu’s interest in Paragon. [ 29 ] Syed deposed that the only involvement that he and Joseph had in the buy-out of Tamstu’s interest in Paragon was to forward to Jonathan an email dated September 10, 2020 containing a proposal by Paragon to purchase Tamstu’s interest. Regarding the delivery of the documents to the Applicants in compliance with the Document Production Order, Syed swore that he and Joseph delivered eight boxes of material that he believed to contain the vouchers, statements, invoices, receipts, tax returns and other documents required by the Judgment. [ 30 ] And, last, Syed explained the attempts to collect the account receivable from Tom Jones and that this amount was uncollectible. G. Identifying the Areas of Dispute in the Compliance with the Document Production Order [ 31 ] By June or July 2022, Syed and Joseph had each retained new counsel, and the Applicants had associated agent counsel. [ 32 ] At a Case Conference conducted on June 7, 2022, Justice Dietrich ordered that Syed attend at a cross-examination on his affidavit “with respect to matters relating to the contempt motion”. This was the first step in the post-abeyance, or “second phase”, of this Contempt Motion. [ 33 ] On August 26, 2022, Syed’s new lawyer provided to the Applicants’ new lawyer a detailed response regarding the discrete areas of deficiency that had been distilled and discerned from correspondence sent by Jonathan and his initial counsel, and requested detail of the areas that the Applicants considered to be required to comply with the Document Production Order, as follows: Rather than detail any specific omissions, Mr. [Jonathan] Rosenthal states that, “while it is difficult to know exactly what is missing, it is clear on my review that the boxes did not contain all the information Syed and Joe were ordered to provide.” This bald statement without particulars makes it very difficult to know what Syed is alleged to have failed to provide. [ 34 ] Syed’s lawyer wrote, on August 26, 2022, that Syed maintained a file for work that he completed for Paragon in addition to those documents maintained as Estate Trustee, and that he could not provide documents prepared for Paragon without Paragon’s consent or a court order. I find that this was the first clear statement by Syed that he possessed documents belonging to Paragon that he had received or generated during the time that he acted as Estate Trustee that he alleged could not be produced without Paragon’s consent by reason of his retainer as external accountant for Paragon. Syed’s lawyer maintained this distinction in the cross-examination of Syed conducted on September 2, 2022, by refusing to produce documents considered to be the property of Paragon. [ 35 ] By Memorandum dated September 19, 2022, the Applicants set out a list that they claimed to constitute the deficiency in Syed’s compliance with the Document Production Order, comprised of the following: (a) 17 categories of documents; (b) the identification of 20 custodians of documents who might have material evidence, with the request that Syed search for any emails, faxes, letters and other correspondence received from, or sent to these persons; (c) 19 email addresses belonging to persons who might have material evidence, with the request that Syed search for any emails received from, or sent to these persons; and (d) 15 search terms for Syed to use in searching for any documents responsive to these terms (the “September 2022 List”). [ 36 ] I find that the September 2022 List is the first instance in which the moving party Applicants provided a comprehensive, detailed list in support of their position that Syed and Joseph had failed to comply with the Document Production Order. [ 37 ] On November 11, 2022, Syed delivered to the Applicants his answers to undertakings, as well as about 437 documents, consisting of scanned copies of Syed’s working files for the years from 2005 to 2019; electronic folders retrieved from Syed’s computer for 6 entities or persons; corporate tax returns and financial statements for Tamstu; and email directories. On February 3, 2023 and March 10, 2023, Syed delivered to the Applicants about 1,135 further documents. [ 38 ] After the Applicants’ provision of the September 2022 List, Syed’s further delivery of documents, Jonathan’s delivery of a supplementary affidavit, and the extensive exchange of written communication between the lawyers for these parties, there were two areas of remaining disagreement on the Estate Trustees’ compliance with the Document Production Order, as follows: (a) Syed and Joseph’s release of the file of Mr. Robert O’Brien, who had acted as lawyer for the Estate Trustees and then continued as their lawyer for the purpose of their compliance with the Judgment, until he was replaced (the “Lawyer’s File Material”). (b) The documents that Syed has in his possession, power or control as external accountant for Paragon during the time that he was also acting as Estate Trustee that are relevant to Tamstu’s claims against Paragon deriving from the Consulting Agreement. I will refer to this category of documents as the “Paragon Documents”. [ 39 ] Dealing first with the Lawyer’s File Material, the Estate Trustees took the position that the Lawyer’s File Material contained privileged communications and could not be produced in their entirety. However, at a Case Conference conducted on December 22, 2022, the Estate Trustees agreed to produce the Lawyer’s File Material by January 13, 2023, subject to a privilege review by counsel retained by Mr. O’Brien. Justice Gilmore stated that the parties could return to make submissions on the issue of privilege if no agreement was reached. [ 40 ] The Lawyer’s File Material was produced on January 13, 2023, consisting of some 1,066 documents comprising about 13,000 pages together with a schedule of privileged documents. The components of the Lawyer’s File Material held back on the basis of privilege were produced in instalments in the period from February 4, 2023 to April 24, 2023, principally on March 21, 2023 when 1,075 documents were delivered. The Applicants submitted that the dispute regarding the production of the lawyer’s file material is now confined to the two documents (the “Two Contested Lawyer’s Documents”). [ 41 ] Regarding the Paragon Documents, Syed took the position that he was bound by his professional duties as a chartered accountant not to produce the Paragon Documents without the consent of Paragon or a court order. The question of whether Paragon would consent to the disclosure of the Paragon Documents in this Application was put to rest by litigation commenced by and between Jonathan, Benjamin and Tamstu, with Paragon and its owners. H. Tamstu’s Litigation with Paragon [ 42 ] On December 9, 2022, Tamstu initiated an Application in Commercial List court file number CV-22-00691526-00CL (the “ 2022 Tamstu/Paragon Application ”) against Paragon, R&G, the France Family, and Bud Ralph, a controller with R&G (collectively, the “Paragon Parties”). Tamstu seeks to enforce Tamstu’s interest arising from the Consulting Agreement, and claims, amongst other things, entitlement to 25% of the profits of Paragon; 25% of the equity of Paragon on its distribution; the option to purchase 25% of the shares of Paragon prior to the sale of Paragon; and the entitlement to limit the amounts received by the France Family in remuneration. Tamstu pleaded that the Paragon Respondents have, amongst other things, engaged in conduct that is oppressive; have breached their duties as partners; have breached the Consulting Agreement; and that the France Family has received remuneration in excess of permissible amounts. [ 43 ] On September 6, 2023, Paragon and R&G initiated an action in court file number CV-23-00710960-00CL [5] against Tamstu and the Succeeding Estate Trustees, Jonathan and Benjamin, for an order that the Consulting Agreement is void and of no effect, including the Tamstu claim for a 25% share in the profit and Tamstu’s claim for an option to purchase 25% of the shares of Paragon, an order for repayment to Paragon of all fee payments made to Tamstu, and other relief (the “2023 Paragon/Tamstu Action”). Paragon and R&G plead, amongst other things, that the Deceased acted in conflict of interest in obtaining entitlements for Tamstu in the Consultant Agreement, contrary to the interests of Paragon and R&G, and that any entitlements to Tamstu under the Consultant Agreement terminated upon the Deceased’s death. [ 44 ] In their Statement of Defence and Counterclaim delivered September 15, 2023, Tamstu and the Succeeding Estate Trustees deny the claims brought by Paragon and R&G, and advanced by Counterclaim similar claims to those that were pleaded by Tamstu in the 2022 Tamstu/Paragon Application. I. The Paragon Documents [ 45 ] Considering Syed’s position that he could only produce the Paragon Documents with the consent of Paragon or a Court Order, the lawyers for the Applicants formally requested, on June 26, 2023, that Paragon consent to the release by Syed of the Paragon Documents for the purposes of this Application. [6] Paragon did not consent. [ 46 ] In both the 2022 Tamstu/Paragon Application and the 2023 Paragon/Tamstu Action (collectively, the “Tamstu/Paragon Commercial Litigation”), Tamstu and the Succeeding Estate Trustees, Jonathan and Benjamin, claimed broad orders for production of “all financial records of the [Paragon Respondents], including but not limited to all financial statements, bank statements, corporate and personal tax records, activity statements, investment reports, general ledgers, minute books, corporate resolutions, and all other financial records, reports and statements to permit Tamstu to assess” its entitlements under the Consulting Agreement. [ 47 ] Jonathan and Benjamin directed Tamstu to bring the Tamstu/Paragon Application in their capacity as directors of Tamstu. Through the Tamstu/Paragon Commercial Litigation, the Succeeding Estate Trustees sought directly from Paragon documentary disclosure that overlaps with the documents sought pursuant to the Judgment. Specifically, the Paragon Documents, said by Jonathan and Benjamin to constitute the omission in Syed’s compliance with the Document Production Order sufficient to support the finding of contempt claimed in this Motion, were a subset of the productions sought in the 2023 Paragon/Tamstu Action by Jonathan and Benjamin, both directly as Defendants and through their direction of Tamstu. [ 48 ] The Paragon Parties have produced more than 5,000 documents in the 2023 Paragon/Tamstu Action, including as set out in an affidavit of documents listing 111 pages of Schedule A productions and a supplementary affidavit of documents listing 26 pages of Schedule A productions. [7] Paragon’s affidavits of documents contain a category titled “Documents Received from Syed Pervez”. Paragon’s affidavit of documents lists over 1,000 such documents, and Paragon’s supplementary affidavit of documents contains 252 such documents (collectively, “Paragon’s Syed Documents”). [ 49 ] Tamstu brought a Motion in the 2023 Paragon/Tamstu Action for an order, pursuant to Rule 30.1.01(8) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, that the deemed undertaking provision not apply to information and evidence disclosed by Paragon in the Paragon/Tamstu Action pertaining to the documents in the possession, control or power of Syed while he acted as Estate Trustee, and an order granting the Applicants leave to use these documents in this Application. These orders were granted by Justice Osborne on the basis of reasons issued November 11, 2024. [8] [ 50 ] The Applicants submitted that the only remaining step necessary for Syed to comply with delivery of Paragon Documents under the Document Production Order was for Syed to swear an affidavit that certified that the documents now produced by Syed together with Paragon’s Syed Documents made available by waiver of the deemed undertaking provision, constitute all the documents in his possession, power or control necessary to be produced to comply with the Document Production Order . J. Joseph’s Death [ 51 ] Joseph died on June 27, 2023. At a Case Conference conducted on August 14, 2023, Justice Dietrich ordered, on the consent of the parties, that this Application shall continue against David Rosenthal, Samuel Rosenthal and Cheryl Rosenthal, in their capacity as co-estate trustees of the estate of Joseph Rosenthal (the “Joseph Rosenthal Estate”) only to compel compliance with the Document Production Order and costs, and that the Applicants’ motion for a declaration of contempt shall not proceed as it relates to Joseph or to the Joseph Rosenthal Estate. II. ISSUE [ 52 ] The issue raised by this Motion is whether Syed is in contempt of the Judgment. III. ANALYSIS [ 53 ] The Applicants brought this Motion on the basis of Rule 60.05, which provides that “[a]n order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.” [ 54 ] The legal principles pertaining to contempt are well-established. The Supreme Court has stated that contempt of court “rest[s] on the power of the court to uphold its dignity and process”. [9] Court orders are not suggestions. They are orders that must be obeyed. [10] The civil contempt power is “an important means by which courts maintain and enforce the rule of law.” [11] [ 55 ] A contempt proceeding is a serious matter that is quasi-criminal in nature. [12] A contempt proceeding “bears the imprint of criminal law”. [13] Accordingly, “motions for contempt are often said to be strictissimi juris , i.e., that all proper procedures must be strictly complied with”. [14] The purpose of a contempt order is “first and foremost a declaration that a party has acted in defiance of a court order”. [15] Where there is no element of public defiance, civil contempt is generally seen “primarily as coercive rather than punitive”. [16] [ 56 ] In North Elgin , the Court of Appeal summarized the three elements required to establish civil contempt, as distilled from the Supreme Court’s findings in Carey , as follows: (a) The order alleged to have been breached must state clearly and unequivocally what should and should not be done. An order may be found to be unclear if: it is missing an essential detail about where, when or to whom it applies; it incorporates overly broad language; or external circumstances have obscured its meaning; (b) The party alleged to have breached the order must have had actual knowledge of it. Actual knowledge may be inferred from the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine; and (c) The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. All that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notic e. Contumacy – the intent to interfere with the administration of justice – is not an element of civil contempt and lack of contumacy is therefore not a defence. [17] [ 57 ] The moving party on a motion for contempt has the burden of establishing, beyond a reasonable doubt, all three elements. [18] Even when the three elements are proven, the court retains the discretion “to decline to impose a contempt finding where it would work an injustice in the circumstances of the case”. [19] [ 58 ] By applying these legal principles to the facts that I have accepted in this Contempt Motion, I determined that this Motion shall be dismissed, as I will explain. (a) The Applicants Did Not Meet Proper Procedural Requirements [ 59 ] The proper process by which the moving party Applicants are required to specify the act or omission that constitutes contempt of the Judgment is through the Notice of Motion. In North Elgin , the Court of Appeal instructed that “[a]s a procedural matter, the party seeking a finding of contempt must clearly specify the act or omission that constitutes the contempt. The usual requirement is that the notice of motion set out the particulars of the alleged contempt”. [20] This is consistent with the fundamental litigation requirement that disputes are decided within the boundaries of the pleadings. [21] [ 60 ] The Supreme Court explained that since contempt hearings are quasi-criminal proceedings, those facing allegations of contempt are entitled to the protections afforded to those accused of a crime. [22] This means that the contemnor is entitled to a process where the procedural requirements are enforced rigorously. [23] [ 61 ] Here, the eight-page Notice of Motion, including the 26 grounds that are pleaded for the relief sought, do not plead that Joseph and Syed are in default of production of the Paragon Documents. In fact, the Notice of Motion does not contain the words “Paragon” or “Tamstu” at all. The pleaded particulars of the act or omission that constitutes the alleged contempt are in relation to the disclosure of documents and information regarding the Tom Jones account receivable, an issue that has long been concluded. [ 62 ] By the time that the Notice of Motion was served, the Applicant had a fulsome opportunity to review the seven boxes of documents that had been delivered by Syed and Joseph pursuant to the Document Production Order. Nonetheless, the Notice of Motion did not specify the two areas of deficiency that are now so heavily relied on by the Applicants: namely, the Paragon Documents; and the Lawyer’s File Material. No comprehensively detailed list of deficiencies was delivered until the Applicants’ service of the September 2022 List. In my view, this Contempt Motion was commenced on a Notice of Motion that was deficient in specifying the omissions in compliance with the Document Production Order that constituted the alleged contempt and did not set out the deficiencies so heavily relied on at the hearing. The Notice of Motion was not amended, at any time, to specify the areas of deficiency as they emerged and, as matters turned out, as they narrowed. [ 63 ] Here, the Applicants submitted that any deficiency in the Notice of Motion is cured by detail provided in the supporting affidavit of Jonathan, relying on the Court of Appeal decision in Follows v. Follows . [24] In Follows , faced with a Notice of Motion that did not contain particulars of the alleged contempt, the Court of Appeal found that “fair notice” of the allegation had been provided because the particulars were contained in the affidavit filed in support of the Motion. [ 64 ] I do not accept the Applicants’ submission in reliance on Follows for two reasons. First, Follows is of questionable authority considering the analysis by the Divisional Court in Rocca Dickson Andreis , [25] and considering the more recent findings by the Court of Appeal in Bell ExpressVu [26] and North Elgin , [27] that the particulars of the alleged contempt must be set out in the Notice of Motion. Second, Jonathan’s initial supporting affidavit, sworn July 8, 2021, did not specify the claim for production of Paragon Documents in Syed’s possession through his retainer as accountant for Paragon, and the Lawyer’s File Material. Jonathan’s supplementary affidavit in support of the Contempt Motion sworn August 4, 2023 did specify these alleged deficiencies, but it was not delivered until years later and was not accompanied by any amendment to the Notice of Motion. [ 65 ] Because the procedure in a contempt motion must be followed strictly and rigorously, the failure to provide proper notice is a basis for the dismissal of this Contempt Motion. [28] In my view, the Applicants failed to ensure that all proper procedures in this Contempt Motion were strictly complied with. However, apart from this procedural deficiency, the Applicants also failed to establish, beyond a reasonable doubt, the substantive basis for a finding of contempt. (b) Analysis of the Three-Part Test [ 66 ] The first element of the three-part test requires that the “order alleged to have been breached must state clearly and unequivocally what … must be done”. [29] The requirement of clarity is important to ensure that a party will not be found in contempt where the order is unclear. [30] The party seeking to prove contempt must establish, beyond a reasonable doubt, that the order said to have been breached clearly stated exactly what must be done to comply with the order. [31] [ 67 ] The Supreme Court has provided guidance on the analysis of when an order will be found to be unclear: An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning. [32] [ 68 ] Context is important. I adopt the finding of Justice Cavanagh in Sakab Saudi Holding Company that the party alleged to have breached an order “is entitled to the most favourable interpretation of the order alleged to have been breached when the order is interpreted in accordance with its ordinary meaning taking into account its context.” [33] This requires that the Court consider the entire record to determine whether the order said to have been breached was sufficiently clear that its breach attracts a quasi-criminal sanction. [ 69 ] Here, the Judgment was rendered on consent. The Document Production Order was not the product of a court determination upon consideration of the parties’ positions and adjudication, but rather the Document Production Order is a production order agreed to by the parties. Having reviewed the evidence of Jonathan, Benjamin, Joseph and Syed, I am left with a reasonable doubt that the parties considered, agreed, or even understood that the Document Production Order pertains to documents in Syed’s possession arising from his retainer as external accountant for Paragon while also acting as an Estate Trustee that are material to the Estate’s claim through Tamstu against Paragon. [ 70 ] The Applicants’ Contempt Motion is based on the Applicants’ position that the requirement in the Document Production Order that Syed and Joseph produce “all … documents and other information in Joseph and Syed’s power, possession, or control relating to the Estate and the administration of the assets and liabilities thereof” pertain both to documents in their possession as Estate Trustees and to documents in Syed’s possession as external accountant for Paragon. I am not satisfied beyond a reasonable doubt that it was clear to any of the parties at the time that the Document Production Order was agreed upon by them and included in the Judgment on their consent, that the Document Production Order applied to documents in Syed’s possession as external accountant for Paragon that related to the Estate. [ 71 ] The evidence did not show that the issue of production of documents in Syed’s possession as external accountant for Paragon was known or discussed at the time of the rendering of the Document Production Order. The issue of production of documents in Syed’s possession as external accountant for Paragon was not the subject of communications between the parties leading to the bringing of the Contempt Motion and, as explained, was not set out in the Notice of Motion. The evidence filed on this Motion leaves a reasonable doubt as to whether the Applicants even knew that Syed was providing external accounting services for Paragon while an Estate Trustee. There is no evidence that Syed considered, at the time of the issuance of the Document Production Order, his obligation of protection of client files as a Chartered Professional Accountant, including under the Chartered Professional Accountants of Ontario CPA Code of Professional Conduct (the “CPA Requirements”). [ 72 ] The Applicants relied on Callidus v. Opes Resources Inc. [34] , which involved a motion for the stay of a consent order requiring documentary production. There, the plaintiff obtained an order compelling production of “all correspondence” amongst the defendants and others, and upon the defendant contending that the order was unclear, Justice Chiappetta issued a further order interpreting the previous court order as requiring the production of “all correspondence” regardless of any privilege. The motion to stay the second order was dismissed. [ 73 ] Here, the Applicants rely on Callidus for the proposition that Syed was required to raise the issue of privilege pertaining to the Paragon Documents at the time that the Judgment was rendered, and that Syed is now estopped from raising the issue of privilege. I do not accept these submissions. In my view, the finding in Callidus is restricted to the facts of that case. Further, in Callidus , a second hearing and a second order were required to interpret and thereby clarify that the requirement in the first order of production of “all documents” included privileged documents. [ 74 ] I find that the Document Production Order missed an important detail that rendered it unclear; specifically, that it applied to documents “relating to the Estate and the administration of the assets … thereof” that Syed possessed in his capacity as external accountant for Paragon. This resulted in the wording of the Document Production Order being overly broad and imprecise, and unclear as it applied to relevant documents in Syed’s possession as external accountant for Paragon. [ 75 ] The Applicants’ claim for a finding of contempt thereby fails on the Applicants’ failure to establish, beyond a reasonable doubt, that the Document Production Order was clear, in the circumstances of this case. I am bolstered in this conclusion by my finding, on the totality of the evidence, that neither the Estate Trustees nor the Applicants had in mind at the time that the Judgment was rendered on consent in December 2020, that compliance with the Document Production Order required the delivery of the thousands of documents that have now been provided to the Applicants. These include, in addition to the over 1,000 documents produced by Syed and Joseph (with the assistance of e-discovery support provided by Syed’s lawyers) and the Lawyer’s File Material, Paragon’s Syed Documents made available by waiver of the deemed undertaking provision. [ 76 ] On my finding that the Document Production Order was unclear, and my finding that the parties did not address, at the time that they consented to the order, the inclusion in the Document Production Order of documents that Syed possessed as external accountant for Paragon, I do not accept the Applicants’ submission that issue estoppel or cause of action estoppel has any application to this Contempt Motion. [ 77 ] Considering the failure of the first element of the three-part test for contempt, it is unnecessary to determine whether the Applicants have established, beyond a reasonable doubt, the second and third elements. I will nonetheless address these elements, for completeness of analysis. [ 78 ] The second element of the three-part test is that the Applicants show that Syed and Joseph had actual knowledge of the Judgment. [35] I am satisfied, beyond a reasonable doubt, that Syed and Joseph had actual knowledge of the Judgment. They consented to the issuance of the Judgment with the benefit of the advice of legal counsel representing them as Estate Trustees. [ 79 ] The third element of the three-part test is that the Applicants establish that Joseph and Syed “intentionally failed to do the act that the order compels”. [36] As the Supreme Court emphasized in Carey , “ all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice ” [emphasis added]. [37] Since the Applicants failed to establish that the Document Production Order was a clear order, regarding the production of documents relating to the Estate in Syed’s capacity as an external accountant for Paragon, the Applicants cannot establish that Syed intentionally breached the Document Production Order. [ 80 ] Had the Applicants established that the Document Production Order was clear, in that it clearly included the documents relating to the Estate in Syed’s possession as external accountant for Paragon, Syed’s failure to produce the Paragon Documents would not have been excused by his sworn evidence that he did not intend to breach the Judgment based on his intention to comply with the CPA Requirements. Had I found that the Document Production Order was clear, I would not have accepted Syed’s defence that his failure to comply is defensible on the basis that he did not intend to breach the Judgment. Intention to disobey the Judgment, or the intention to interfere with the administration of justice, referred to as contumacy, is not a requirement to establish intention, and “lack of contumacy is therefore not a defence.” [38] All that is required to satisfy the third element of the test is an intentional act or omission that breaches a clear order. The intention to disobey is not required to prove the third element of the test, and the lack of intention to disobey is not a defence. [39] (c) The Exercise of Discretion [ 81 ] Even where all three elements for civil contempt are established, the court has a residual discretion to decline to make a finding of contempt where “it would work an injustice in the circumstances of the case”. [40] The court’s exercise of discretion is guided by the principles that “contempt of court cannot be reduced to a mere means of enforcing judgments”, that the contempt power must be used “cautiously and with great restraint”, as “an enforcement power of last rather than first resort” and not as a “routine tool”. [41] [ 82 ] Even had I found that the Applicants had established all three requirements for contempt, I would have exercised my discretion to decline to find Syed in contempt of the Judgment for five reasons. [ 83 ] First, Syed and Joseph retained counsel who attempted to comply with the Judgment in good faith. Prior to the November 2021 Order placing this Contempt Motion in abeyance, the “first phase” of the Contempt Motion, Mr. O’Brien delivered seven boxes of file materials in an attempt to comply with the Judgment. At the time leading to the cross-examination of Syed in September 2022 and thereafter, the “second phase” of the Contempt Motion, the lawyers for Syed and Joseph were engaged with the lawyer for the Applicants in a prolonged good faith effort to comply with the Judgment, which culminated in reducing the areas in dispute to two discrete areas: confirmation that Syed has no further Paragon Documents; and two documents claimed to contain privileged communications. I do not accept the Applicants’ submission that the efforts by Syed to comply with the Judgment in the second phase constitute purging of his contempt, because no contempt had been found. Rather, I find that Syed and Joseph showed good faith engagement through counsel in reasonable attempts to comply with the Document Production Order. [ 84 ] The Supreme Court instructed that “where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt”. [42] I find that the good faith steps taken by Syed support the exercise of discretion to decline to make a finding of contempt. [ 85 ] Second, the Applicants did not bring this Contempt Motion as a power of last resort but rather as a first step. The Applicants did not make clear to Syed and Joseph the areas of deficiency in compliance with the Document Production Order before bringing this Motion, or during the first phase of the Motion. Rather, the Contempt Motion was used as a vessel for an ongoing debate regarding the adequacy of compliance with the Judgment, as opposed to a proceeding of last resort after all efforts to engage Syed and Joseph and seek compliance had been exhausted. [ 86 ] Third, the purpose of a civil contempt motion is coercive, to ensure compliance with court orders. This purpose was not needed in this instance because Joseph and Syed were engaged and inviting, if not demanding detail by the Applicants regarding the precise nature of the documents required to comply with the Judgment and expressed willingness, throughout, to comply with the Judgment. This was established by both Syed and Joseph but seen most acutely in the case of Joseph’s counsel’s efforts to obtain from the Applicants’ lawyer a list of documents said to be outstanding. This request was initially made by Joseph’s counsel on September 9, 2022, without response, and followed up seven times in writing from November 30, 2022 to June 2, 2023, without response, until the Applicants communicated their position regarding deficiencies in compliance on June 22, 2023: about 9 months after Joseph’s request. This response was received 5 days before Joseph’s death on June 27, 2023, not allowing an opportunity for response. [ 87 ] Fourth, the advent of the Tamstu/Paragon Commercial Litigation , and Paragon’s refusal to consent to Syed’s disclosure of the Paragon Documents in this Application and Paragon’s objection to waiver of the deemed undertaking rule, placed Syed in an untenable position. The Applicants, either in their capacity as Succeeding Estate Trustees or as Directors of Tamstu, pursued two paths to obtaining the Paragon Documents. Syed was presented with the choice of either disclosing the Paragon Documents despite Paragon’s clear and unequivocal objection or defending the Applicants’ demand that he produce the Paragon Documents. I find that, in these unique circumstances, Syed’s decision to, effectively, allow for the interpleader of this issue into court and await the determination was not contemptuous. [ 88 ] Fifth, the Applicants recognized that the Contempt Motion was no longer necessary after the issue of production of Paragon Documents was placed squarely before the court in the Tamstu/Paragon Commercial Litigation. Jonathan deposed that on July 28, 2023, he and Benjamin proposed that Syed and Paragon agree to produce the Paragon Documents either within this Application or in the 2023 Paragon/Tamstu Action and the “pending motion for contempt against [Syed] with respect to these specific documents will be withdrawn on consent and without costs.” [43] This would have left for determination only the solicitor and client privilege issue affecting the production of the Two Contested Lawyer’s Documents. (d) Conclusion – The Applicants Did Not Establish Contempt [ 89 ] For the reasons set out herein, the moving party Applicants did not establish, beyond a reasonable doubt, the elements required for contempt. Even if they had, I would have exercised my discretion to decline to make a finding of contempt on the basis that it would work an injustice in the circumstances of this case. IV. DISPOSITION [ 90 ] I order that this Contempt Motion is dismissed. [ 91 ] The parties may arrange, through the Estates List Trial Coordinator, a Case Conference, before me schedule permitting, to speak to the two production claims asserted by the Applicants: (a) regarding the Lawyer’s File Material, the Two Contested Lawyer’s Documents; (b) regarding the Paragon Documents, an affidavit by Syed certifying that the documents now produced by Syed together with Paragon’s Syed Documents made available by waiver of the deemed undertaking provision, constitute all the documents in his possession, power or control necessary to be produced to comply with the Document Production Order. If the parties are unable to resolve these issues, they may speak to the process that they require for their determination. The parties shall be prepared to speak to a timetable for the further development and adjudication of the First Passing of Accounts Application and the Second Passing of Accounts Application. V. COSTS [ 92 ] The parties are encouraged to confer and settle the issue of costs. [ 93 ] If the parties are not able to agree on the issue of costs, any party seeking costs may, by April 25, 2025, deliver by email to the Court Registrar and to the Estates List Trial Coordinator, after service and filing on Case Center, written costs submission of no more than six (6) pages, plus a Bill of Costs. Any party against whom costs is sought may, by May 16, 2025, deliver by email to the Court Registrar and to the Estates List Trial Coordinator, after service and filing on Case Center, responding cost submissions of the same length. Any party claiming costs who seeks to deliver Reply submissions shall do so by May 23, 2025, in submissions of no more than 3 pages. If no party delivers any written cost submissions by May 23, 2025, I will deem the issue of costs to have been settled. A.A. Sanfilippo J. Released: April 3, 2025 COURT FILE NO.: CV-20-00652038-00ES DATE: 20250403 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JONATHAN ROSENTHAL and BENJAMIN BARRETT Applicants – and – DAVID ROSENTHAL, in his capacity as Estate Trustee for the Estate of Joseph Rosenthal, SAMUEL ROSENTHAL, in his capacity as Estate Trustee for the Estate of Joseph Rosenthal, CHERYL ROSENTHAL, in her capacity as Estate Trustee for the Estate of Joseph Rosenthal, SYED PERVEZ, in his capacity as Estate Trustee of the Estate of Cyril Hirsh Rosenthal, RACHEL BARRETT, JACOB BARRETT, JOSHUA YUE ROSENTHAL-WANG and AVIVA MING ROSENTHAL-WANG Respondents REASONS FOR JUDGMENT A.A. Sanfilippo J. Released: April 3, 2025 [1] The evidentiary record shows that the parties at times refer interchangeably to the Consulting Agreement as the “Consultant Agreement”. I use the term “Consulting Agreement” because this is how the document is referred to in the Memorandum of Understanding dated March 8, 2017 and the Judgment dated December 17, 2020. [2] Affidavit of Syed Pervez sworn February 15, 2022, at para. 8: “Neither Joseph nor I were involved as Estate Trustees in a possible buy out of Tamstu’s interest in Paragon at [the time of receipt of an offer from Paragon’s counsel on September 10, 2020] or after and neither Joseph nor I have no [ sic ] knowledge of what has transpired since September 2020. [3] Affidavit of Jonathan Rosenthal sworn August 4, 2023, at para. 10. [4] Affidavit of Benjamin Barrett sworn November 26, 2020, at paras. 13-17. [5] The action by Paragon and R&G was initially commenced under court file number CV-23-00705577-0000 and amended on April 29, 2024 by order of Justice Steele to court file number CV-23-00710960-00CL. [6] Supplementary Affidavit of Jonathan Rosenthal sworn August 4, 2023, paragraphs 102, 106-107, and exhibit NNN, letter of June 26, 2023 from Matthew Karabus to Kevin W. Fisher: “Mr. Pervez has refused to produce documents in his possession relating to the [ sic ] Tamstu on the basis that the documents created/received by Mr. Pervez in his capacity as an accountant for Paragon. … by way of this letter, we are formally requesting that Paragon consent to the release of documents pertaining to the Estate (including Tamstu) and which are in Mr. Syed’s possession, control or power, which may have been created/received by Mr. Pervez in his capacity as an accountant for Paragon.” [7] Affidavit of Emily Oladosu, sworn December 11, 2024, at paras. 4-5, Exhibits 2 and 3. [8] Paragon Protection Ltd. v. Tamstu-Harjon Holdings of Canada Limited , 2024 ONSC 6461 . [9] Carey v. Laiken , 2015 SCC 17 , [2015] S.C.R. 79 , at para. 30 , quoting United Nurses of Alberta v. Alberta (Attorney General) , 1992 99 (SCC) , [1992] 1 S.C.R. 901 , at p. 931 . [10] Carey , at para. 58 : “It is elementary that so long as … an order of the court remains in force it must be obeyed.” Also, Sutherland Estate v. Murphy , 2025 ONCA 227 , at para. 31 , which was released after the hearing of this motion but did not change the principles relied on by the parties. [11] Carey , at para. 30 ; Sutherland Estate , at para. 30 . [12] Carey , at para. 42 ; Bell ExpressVu Limited Partnership v. Corkery , 2009 ONCA 85 , 94 O.R. (3d) 614 , at para. 20 ; Sutherland Estate , at para. 37 . [13] Pro Swing v. Elta Gold Inc., 2006 SCC 52 , [2006] 2 S.C.R. 612 , at para. 35 ; Sutherland Estate , at para. 32 . [14] Bell ExpressVu , at para. 20. [15] Carey , at para. 30 . [16] Carey , at para. 31 ; North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited , 2021 ONCA 173 , at para. 44 , relying on United Nurses of Alberta v. Alberta (Attorney General) , 1992 99 (SCC) , [1992] 1 S.C.R. 901 , at p. 943, per Sopinka J., dissenting; Chiang (Re) , 2009 ONCA 3 , 93 O.R. (3d) 483 , at para. 11 . [17] North Elgin , at para. 43, citing Carey , at paras. 29, 32-35 and 38 . Also, Greenberg v. Nowack , 2016 ONCA 949 , 135 O.R. (3d) 525 , at para. 25 ; Chong v. Donnelly , 2019 ONCA 799 , at para. 5 ; Moncur v. Plante , 2021 ONCA 462 , at para. 10 . [18] Carey , at para. 32 ; Greenberg , at para. 26 ; Sutherland Estate , at para. 43 . [19] North Elgin , at para. 45, relying on Carey , at paras. 36-37 ; Greenberg , at para. 26 ; Chong , at para. 9 . [20] North Elgin, at para. 46, citing Bell ExpressVu , at paras. 17, 20 and 42-45; Rocca Dickson Andreis Inc. v. Umberto Andreis , 2013 ONSC 5508 , 111 W.C.B. (2d) 587 (Div. Ct.) , at para. 20 ; Dare Foods (Biscuit Division) Ltd. v. Gill , 1972 506 (ON SC) , [1973] 1 O.R. 637 (Ont. H.C.) , at p. 639 ; Vale v. USWA Local 6500 , 2010 ONSC 3039 , 320 D.L.R. (4th) 185 , at para. 3 . [21] Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA) , 59 O.R. (3d) 74 (Ont. C.A.) , at para. 60 . [22] Pro Swing , at para. 35 ; Carey , at para. 42 . [23] Bell ExpressVu , at para. 20; Sutherland Estate , at para. 43 , citing Basset v. Magee , 2015 BCCA 422 , at para. 35 . [24] (1998), 1998 4629 (ON CA) , 41 R.F.L. (4th) 248 (Ont. C.A.) . [25] Rocca Dickson Andreis , at paras. 17-20. [26] Bell ExpressVu , at para. 20. [27] North Elgin , at para. 46. [28] Rocca Dickson Andreis Inc. , at para. 26 . [29] North Elgin , at para. 43. [30] Carey , at para. 33 . [31] Bell ExpressVu , at para. 22; Sutherland Estate , at para. 82 . [32] Carey , at para. 33 . [33] Sakab Saudi Holding Company v. Al Jabri , 2024 ONSC 1347 , at paras. 19-20 . [34] 2019 ONSC 1288 . [35] North Elgin , at para. 43. [36] North Elgin , at para. 43. [37] Carey , at para. 38 . [38] North Elgin, at para. 43. [39] Carey , at para. 38 ; Greenberg , at paras. 27-29 . [40] Carey , at para. 37 . [41] Carey , at para. 36 , quoting Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc. , 1992 29 (SCC) , [1992] 2 S.C.R. 1065 , at p. 1078 and TG Industries Ltd. v. Williams , 2001 NSCA 105 , 196 N.S.R. (2d) 35 , at para. 32 . Also, Moncur , at para. 10 ; Sutherland Estate , at paras. 46 and 47 ; Hefkey v. Hefkey , 2013 ONCA 44 , at para. 3 . [42] Carey , at para. 37 . [43] Affidavit of Jonathan Rosenthal sworn August 4, 2023, paras.109 and 115, Exhibits SSS and VVV.
minicounsel