Court File and Parties

Court File No.: CV-21-00657188-0000 Date: 2025-07-31 Superior Court of Justice - Ontario

Re: Gavin Dabron, Applicant

And: Jonathan Spinks, Plan2 Consulting Inc., Sourced Group Inc., Sourced Group Worldwide Inc., Sourced (Singapore) Pte Ltd, Sourced Group Holdings Pty Limited, Sourced Group Services Pty. Ltd, Sourced Group Pty Limited, Sourced Group Unit Trust and Wilson Lee, Defendants

Before: Parghi, J.

Counsel:

• Jeffrey E. Feiner, Adam Dobkin, Counsel, for the Applicant
• Denise Sayer, Adam Stikuts, Cynthia L. Spry, Shakaira L. John, Teresa Lamus, Counsel, for the Respondents

Heard: July 4, 2025

Endorsement

Introduction

[1] The Plaintiff, Gavin Dabron ("Mr. Dabron"), appeals the September 13, 2024 decision of Eckler A.J. dismissing a motion for the production of two documents. For the reasons below, I dismiss the appeal.

Background

[2] In 2010, Mr. Dabron and the Defendant, Jonathan Spinks ("Mr. Spinks"), co-founded a company called Sourced Group. Some years later, they had a dispute. Mr. Spinks purchased Mr. Dabron's 50% interest in Sourced Group, based on a valuation of the company that was prepared in 2018 by a non-party accounting firm, Ernst & Young. In 2021, Sourced Group was sold to a subsidiary of Amdocs Limited ("Amdocs"), also a non-party, for a higher sum than the one at which Ernst & Young had valued the company in 2018.

[3] Mr. Dabron has sued the Defendants, alleging that they provided inaccurate, incomplete, or misleading information to Ernst & Young at the time of his buyout, resulting in Ernst & Young undervaluing Sourced Group and Mr. Dabron being undercompensated for his interest in it.

[4] When Mr. Dabron sent a "litigation hold" letter to Ernst & Young in connection with his action, Ernst & Young informed him that, in addition to having records regarding the 2018 valuation of Sourced Group, it also had records from Amdocs' 2021 retainer of Ernst & Young, in connection with its acquisition of Sourced Group.

[5] Mr. Dabron brought a motion seeking non-party production of those acquisition-related records, from Ernst & Young, under rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"). I will refer to that motion as the "main motion". In the main motion, Mr. Dabron states that the acquisition-related records should be produced because they are relevant to the underlying action. Amdocs and Sourced Group state that the records are confidential and not relevant, and that Mr. Dabron's request is overly broad.

[6] A representative of Amdocs, Zvi Joseph ("Mr. Joseph"), provided an affidavit in support of the Defendants' position that the acquisition-related records should not be produced. In his affidavit, Mr. Joseph referred to two specific documents – the Statement of Work prepared by Ernst & Young and the final report that Ernst & Young provided to Amdocs in respect of the engagement (the "two documents") – in support of his view that the records were not producible. The two documents are among the large number of documents whose disclosure Mr. Dabron is seeking in the main motion.

[7] Mr. Joseph was served with a notice of examination requiring him to produce the two documents at cross-examination. He did not do so.

[8] During cross-examination, Mr. Joseph was asked for an undertaking to produce the two documents. He was also asked to provide a list of all the documents Ernst & Young had received as part of the 2021 Amdocs engagement. These requests were refused on the bases that they were irrelevant, that they were among the very ones whose production was being sought in the main motion, and that Amdocs had no obligation to disclose confidential and private information to Mr. Dabron in the absence of a court order.

[9] Mr. Dabron brought a motion seeking production of the two documents. I will refer to this as the "refusals motion". The refusals motion was brought under rule 30.04(2), which provides that a request to inspect documents may be used to obtain a document, for inspection, if referred to in another party's affidavit; and rule 34.10(2)(b), which provides that a person being examined must produce for inspection, at their examination, all documents that are not privileged and which the notice of examination requires them to produce.

[10] Associate Justice Eckler is seized of the main motion. She invited the parties to make additional submissions on the intersection of the main motion and the refusals motion. The parties did so.

[11] Associate Justice Eckler then heard the refusals motion. At the start of the hearing, Mr. Dabron confirmed that the relief under rule 30.04(2) was no longer being sought and the argument pursuant to that rule was being abandoned. The refusals motion therefore proceeded on the basis of rule 34.10(2)(b) and as a motion compelling the Defendants to answer the refusals relating to production of the two documents.

[12] The associate justice denied the refusals motion. Mr. Dabron now appeals that decision. The main motion has been adjourned until this appeal is resolved.

[13] I agree with the associate justice's decision and see no reason to interfere with it.

The Refusals Motion

The Rule 34.10(2)(b) Motion for Production of the Two Documents Based on the Notice of Examination

[14] The associate justice dismissed Mr. Dabron's request for relief under rule 34.10(2)(b).

[15] Rule 34.10(2)(b) establishes the general principle that a person being examined is to produce for inspection at the examination all documents in their possession, control, or power that are not privileged and that the notice of examination requires them to produce. It is uncontested that the notice of examination served on the non-party affiant instructed them to produce the two documents at issue at their cross-examination, and that they did not do so.

[16] Rule 34.10(2)(b) is to be read in conjunction with rule 34.10(3), which provides:

Unless the court orders otherwise, the notice of examination may require the person to be examined to produce for inspection at the examination,

(a) all documents and things relevant to any matter in issue in the proceeding that are in his or her possession, control or power and are not privileged; or

(b) such documents or things described in clause (a) as are specified in the notice or summons.

[17] Mr. Dabron argued that, because the two documents were referenced in the notice of cross-examination, they had to be produced. Further, he characterized the two documents as relevant to the main motion, a "proceeding" for the purposes of rule 34.10(3). He submitted that such relevance to the main motion was sufficient to require the production of the two documents in response to the notice. He further submitted that the two documents were relevant as they would help the court determine the main motion.

[18] The Defendants took the position that the "proceeding" was the underlying action, not the main motion. Because the two documents at issue were not relevant to the underlying action, they did not need to be produced in response to the notice of examination. The Defendants further submitted that production of the two documents should not be ordered because their production was "the very issue that the Court is being asked to decide" in the main motion.

[19] The associate justice declined to compel production of the two documents under rule 34.10(2)(b). In her reasons, the associate justice noted the following:

a. The phrase "unless the court orders otherwise" in rule 34.10(3) "necessarily implies authority on the part of the court to order or refuse to order production of a document referenced in a notice of examination."

b. The case law suggests that the court has jurisdiction to order or not order production under rule 34.10 in combination with other rules.

c. Rule 29.2, entitled "Proportionality in Discovery", applies to the court's determination of any issues under rule 34.10.

d. Rule 29.2.02 provides that proportionality considerations apply to oral examinations.

e. Rule 29.2.03(1)(c) provides that the court may consider undue prejudice in relation to all motions under rules 30 or 34.

f. Rule 29.2.03(1)(d) provides that the court may consider whether requiring a question to be answered or a document to be produced would unduly interfere with the orderly progress of the action.

[20] The associate justice concluded that "considerations of fairness to the parties and the court process dictate that production of" the two documents "not be ordered prior to the hearing of" the main motion. Ordering production of the two documents in the refusals motion would "interfere with the orderly progress of the action and could lead to potentially unjust results." If such an order were made, and it were then determined at the hearing of the main motion that the two documents should not be produced, "[t]his would result in inconsistent findings and potentially unfair and unjust results for the parties involved" in the main motion.

The Request to Compel an Answer to the Refused Request to Produce the Two Documents

[21] The associate justice likewise dismissed Mr. Dabron's motion to compel answers to the refusals at the cross-examination.

[22] Mr. Dabron, relying on rule 30.03, took the position that what is relevant and producible on cross-examination on an affidavit includes documents relevant to the issues on the motion or relevant to the matters raised in the affidavit. Mr. Dabron stated that the two documents are relevant in both respects and would help the court determine relevance and potentially fairness on the main motion. Therefore, they are also relevant to the refusals motion and should be produced.

[23] The Defendants argued that Mr. Dabron had to meet the more onerous rule 30.10 test for non-party production for disclosure of the two documents to be ordered in the refusals motion. Otherwise, the refusals motion would enable him to get production of documents not yet required to be disclosed via the more onerous test for non-party production under rule 30.10.

[24] The test for ordinary production in rule 30.03 is whether the document in question is relevant to "any issue in the action". The test for production from a non-party under rule 30.10 is whether the document is relevant to "a material issue in the action". The Court of Appeal has held that production from a non-party will be ordered only where it would be unfair for the party seeking production to have to proceed to trial without the document at issue (Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39 (C.A.)).

[25] The associate justice refused to compel an answer to the refused requests to produce the two documents. Her analysis focused on fairness and proportionality. She observed the following:

a. Rule 1.04(1.1) requires that proportionality be considered in applying the Rules, an idea that Sossin J., as he then was, emphasized in Sanctuary v. Toronto (City), 2020 ONSC 4708, at paras. 57 and 58.

b. A question asked on a cross-examination for an application or motion must be a fair question (Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 143 ("Rothmans")). This means that the court may "stop a party from using a cross-examination in a way that disturbed the fairness of the procedure or the fairness of the adversary system under which justice is administered in Ontario" (Rothmans, at para. 144).

c. Rule 29.2 also applies and warrants consideration of proportionality in discovery, as discussed above.

[26] The associate justice determined that "it would be unfair" to require production of the two documents in the refusals motion "in circumstances where they were referred to in an affidavit, for the first time, for the purposes of explaining why they cannot or should not be produced in" the main motion. Additionally, granting the refusals motion would create a risk of inconsistent findings in the two motions, which was a "situation" that "should be avoided". It "could result in unfairness and inconsistent results", "interfere with the orderly, fair and just process of the hearing of" the main motion, "and disturb the fairness of the procedure in place for seeking productions from a non-party."

The Grounds of Appeal

[27] Mr. Dabron's factum cites two grounds of appeal.

[28] The first is that the associate justice erred in law by failing to properly distinguish between relevance and necessity in the main motion versus in the action overall. Mr. Dabron states that this error in law is subject to the correctness standard of review.

[29] The second ground of appeal is that the associate justice erred in principle in her treatment of proportionality and fairness. Mr. Dabron states that she did so by exercising her discretion according to erroneous principles – namely, she took an erroneous approach to proportionality under rules 1.04 and/or 29.2 and failed to apply the principles governing motion cross-examinations under rule 39 – and, in so doing, made an error in principle and is owed no deference.

[30] I reject both grounds of appeal.

Analysis

The First Ground of Appeal

[31] I do not accept Mr. Dabron's submission that the associate justice erred by not properly distinguishing between relevance and necessity in the refusals motion and the main motion. The associate justice did not need to make any decision on the issue of relevance because she decided the refusals motion based on another issue: the propriety of the questions.

[32] It is settled law that a refused question must be both relevant and proper for it to be required to be answered (Rothmans, at para. 98, citing Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.) at paras. 40-41, aff'd 2009 ONCA 415, 96 O.R. (3d) 639).

[33] The associate justice applied this test to the case before her. She articulated each party's position on relevance, describing Mr. Dabron's view that the two documents are relevant to the main motion and therefore ought to be produced, and the Defendants' view that the two documents are not relevant to the underlying action and therefore should not be produced. As discussed above, she went on to make her decision based not on the relevance of the two documents, but on the propriety of the request for their production.

[34] This approach did not reflect any error in law. It was entirely correct. The law establishes two requirements that must be met for a refused question to be ordered answered. The associate justice determined that the second of these requirements, propriety, was not met, and that therefore the questions were not to be answered. In light of that finding, she did not need to decide whether the first requirement, relevance, was met. Her decision made clear that regardless of relevance, the requests for the two documents were not proper, viewed in the context of the main motion.

[35] Whether a question asked at cross-examination is proper is a matter of discretion (Rothmans, at paras. 98-99). Discretionary decisions are subject to the palpable and overriding error standard of review. An error is palpable if it is obvious, plain to see, or clear (Waxman v. Waxman, at para. 296 (Ont. C.A.) ("Waxman")). An error is overriding if it is "sufficiently significant to vitiate the challenged finding of fact" (Waxman, at para. 397).

[36] The associate justice made no palpable and overriding error in considering the propriety of the requests or questions at issue. As detailed above, she considered the fairness to the parties, the orderly conduct of the litigation, and the risk of inconsistent findings. These principles were appropriate to consider and apply in exercising her discretion, as they are rooted in the relevant Rules and case law, as indeed she explained in her reasons. I therefore find no palpable and overriding error on the part of the associate justice in deciding that the questions were improper.

The Second Ground of Appeal

[37] I also reject the second ground of appeal, which is that the associate justice erred in principle in her treatment of proportionality and fairness.

[38] It is not entirely clear whether the error in principle that Mr. Dabron cites is one that he considers to be extricable and thus a question of law, or is one tied to factual analysis and application and thus a question of mixed fact and law (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26, 36 ("Housen"); Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81). He states that the associate justice's decision is not owed deference, due to its erroneous nature. This reference to deference, and other references to discretion, suggest that Mr. Dabron is of the view that the decision is subject to the palpable and overriding error standard (Housen, at para. 33). I agree with that characterization, and for the reasons below I find that the associate judge made no such palpable and overriding error. If Mr. Dabron is in fact taking the position that the correctness standard applies, I am also of the view that the decision is not incorrect.

[39] Either way, no error in principle is made out; discretion was not exercised on erroneous principles and the issue need not be decided de novo.

[40] Mr. Dabron states that the associate justice took an erroneous approach to proportionality in discovery under rules 1.04 and/or 29.2. He states that rule 29.2.03(1) requires the court to consider several enumerated factors relating to proportionality and fairness, and that the associate justice did not apply all of these factors. In particular, she failed to consider whether, under subrule 29.2.03(1)(c), "requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice". Mr. Dabron submits that the associate justice instead concluded that granting the refusals relief might cause "potentially unfair and unjust results for the parties involved in this litigation," which was an error in principle for three reasons: it was not the correct test; it improperly considered prejudice to all the litigants rather than to Amdocs, as the subrule requires; and it focused on potential and not actual prejudice and did not consider whether the prejudice was "undue".

[41] I do not agree.

[42] As a preliminary matter, I find Mr. Dabron's argument regarding the proper consideration of each subrule under rule 29.2.03(1) to be formalistic and unrealistic. It is also not reflected in the case law (see, for example, Water Matrix Inc. v. Compten Management Inc., 2022 ONSC 4211; Inzola Group Limited v. The Corporation of the City of Brampton, 2018 ONSC 767; Sharma v. AMEC NSS Ltd., 2017 ONSC 2790). The associate justice quite appropriately focused on the subrule that she found most significant in her analysis: subrule (d), which requires consideration of whether "requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action".

[43] Nor do I accept that it was an error in principle for the associate justice to have considered prejudice to "the parties involved in this litigation" rather than to Amdocs specifically. Rule 29.2.03 was not drafted with this particular, and unusual, situation in mind, in which a non-party is being asked to produce documents in the midst of a broader dispute over the production of those and other documents from another non-party. While ordinarily prejudice will only attach to, and need only be considered in respect of, the party being cross-examined, it would be artificial and formalistic to assess prejudice through such a narrow lens in the circumstances of this case. It was appropriate, and certainly within her discretion, for the associate justice to have assessed prejudice to parties other than Amdocs alone.

[44] Finally, I reject the suggestion that the associate justice focused on potential rather than actual prejudice. The associate justice used the word "potentially" to describe the unfairness that would result if the main motion were decided in a way that was inconsistent with how the refusals motion was decided. The associate justice was describing a contingent but real and significant prejudice, not, as Mr. Dabron appears to suggest, a merely theoretical and minor one that fails to meet the threshold of concern under rule 29.2.03(1).

[45] In any event, I reiterate that the associate justice's salient concern under rule 29.2.03(1) was subrule (d) and the fact that ordering production would unduly interfere with the orderly progress of the action. Even if I had accepted Mr. Dabron's submissions regarding the associate justice's analysis under subrule (c), I would still find that her focus on subrule (d) was an appropriate application of the factors that are to guide her discretion. In her assessment, subrule (d) was determinative of the issue.

[46] I am also of the view that the associate justice's consideration of the risk of inconsistent results between the refusals motion and the main motion was a proper exercise of her discretion. The Supreme Court of Canada has found that the risk of inconsistent results stands to erode the credibility of the judicial process (Saskatchewan (Environment) v. Metis Nation – Saskatchewan, 2025 SCC 4, at para. 40). The issue of potential inconsistent judicial results informs many aspects of judicial decision making. As but one example, it is a factor the courts consider when deciding whether to grant partial summary judgment motions (Malik v. Attia, 2020 ONCA 787, at para. 62).

[47] Mr. Dabron implies that the associate justice erred by failing to consider the protection that he says the deemed undertaking rule would provide for the disputed documents. He made no written submissions on this rule before the associate justice. In any event, the deemed undertaking rule applies to examinations for discovery. This matter involved a cross-examination on an affidavit in a motion.

[48] Mr. Dabron further states that the associate justice failed to consider certain case law in support of his position on the refusals motion. It is uncontested that several of the cases to which he refers were not in fact put before the associate justice in Mr. Dabron's factum, supplementary submissions, or oral argument. As such, I give no effect to this criticism.

[49] I accordingly find that Eckler A.J. considered the appropriate principles in exercising her discretion, within the context of the case before her, and is therefore owed deference. I see no basis on which to interfere with her decision. Third party production orders are an exceptional remedy because third parties are strangers to the litigation and entitled to some degree of protection from production demands. Where a refusals motion is brought within the context of an existing dispute over third party productions, the effect should not be an automatic sidestepping of the (properly) more onerous test for third party production. Where the possibility arises of such a sidestep, as it did here, the court can and should manage its own processes and consider the imperatives of a fair and effective adversarial process. That is precisely what Eckler A.J. did.

Conclusion

[50] I dismiss the appeal.

[51] The parties advise that they have reached an agreement on costs. As such, I make no order on costs.

Date: July 31, 2025

Parghi J.