Court File and Parties
Court File No.: CV-24-1660 Date: 2025-08-06 Superior Court of Justice – Ontario
Re: York1 Trillium Transfer Ltd. (Bethridge), Plaintiff
And: Mobilinx Hurontario General Partnership and Mobilinx Hurontario Contractor, an unincorporated joint venture comprised of Aimco Infrastructures Inc., Astaldi Canada Design & Construction Inc., Webuild-Civil Works Inc., and Bot Infrastructure Ltd., Defendants
Before: M.T. Doi J.
Counsel:
- Simren Sihota, for the Moving Defendant, Mobilinx Hurontario Contractor, Respondent to the Cross-Motion
- Jonathan L. Frustaglio, for the Responding Plaintiff, Moving Party on the Cross-Motion
Heard: May 16, 2025
Endorsement
Overview
[1] The Defendant Mobilinx Hurontario Contractor ("Mobilinx"), seeks leave to bring the within motion and, if leave is granted, to quash or set aside the Rule 39.03(1) examinations of its representatives, Mostafa Al Salman and Francisco Barreto, that the Plaintiff, York 1 Trillium Transfer Ltd. (Bethridge) ("York1"), seeks to conduct in responding to Mobilinx's further motion to stay York1's underlying lien action in this proceeding. For its part, York1 seeks leave to bring its cross-motion and, if leave is granted, to strike or set aside parts of the affidavit of Joshua Strub sworn February 10, 2025 for being hearsay or argument that should not form part of the record on the motion to quash the examinations.
[2] As explained below, leave is granted for Mobilinx to move to quash the examinations and the motion is dismissed. In addition, leave is denied for York1's cross-motion to strike parts of Mr. Strub's affidavit on the motion to quash the examinations.
Leave for Mobilinx to Bring the Motion
[3] I am satisfied that leave should be granted for Mobilinx's motion to set aside the proposed Rule 39.03(1) examinations of its representatives.
[4] As the underlying lien action was brought under the Construction Lien Act, RSO 1990 c. C.30 (the "Act"), leave is required to bring an interlocutory motion in this proceeding. The purpose of ss. 67(2) is to avoid motions that are unnecessary or that do not advance the resolution or determination of issues in dispute: 4 Star Drywall (99) Ltd. v. Nanak Homes Inc. at para 10; Quad Pro Construction Inc. v. Canadian Leaseback (GP) Inc., 2021 ONSC 4740 at para 13. Where a significant issue is likely to be resolved by hearing the motion that will likely shorten the proceeding and achieve cost savings, leave should be granted: 4 Star at paras 10-11; Provincial Partitions Ltd. v R.O.M. Contractors Inc. cob Ross Clair Contractors, 2015 ONSC 2839 at para 5; Quad Pro at para 13.
[5] I am persuaded that Mobilinx's motion to quash the proposed examinations, if granted, would likely shorten the litigation by potentially avoiding the out-of-court examinations that would expedite a determination of its further motion to stay York1's underlying lien action. Given the associated potential time and costs savings, I accept that the motion to quash would promote an efficient determination of this matter: ss. 67(2) of the Act; 4 Star at para 11; Provincial Partitions at para 5. Accordingly, leave for Mobilinx to bring the within motion to quash is granted.
Leave for York1 to Bring the Cross-Motion
[6] In my view, leave for York1's cross-motion should not be granted. In any event, I would not grant the cross-motion as explained below.
[7] By cross-motion, York1 sought leave and, if leave is granted, to move to strike or set aside paragraphs 15, 16, 23, 24, 25, 27 and 30 to Mr. Strub's affidavit sworn February 10, 2025 for being hearsay, argument, or opinion-based evidence that should not be included in the affidavit for the motion. Mobilinx filed Mr. Strub's affidavit to support its motion to quash the examinations.
[8] I find that York1's cross-motion to strike parts of Mr. Strub's affidavit would not resolve any significant issues in dispute, promote an efficient resolution of the litigation, or otherwise achieve time or cost savings: 4 Star at paras 10-11. At best, the cross-motion would remove some parts of an affidavit on an interlocutory motion that would not meaningfully resolve a substantive matter in dispute, realize meaningful efficiencies, or yield appreciable time or costs savings. In my view, the cross-motion is not necessary to advance the litigation. Accordingly, leave for the cross-motion is denied.
[9] In any event, I would not accept York1's submission that the impugned parts of Mr. Strub's affidavit constitute impermissible hearsay. An affidavit for use on a motion may contain hearsay evidence by having the affiant make statements as to their information and belief if the source of the information and the fact of the belief are set out in the affidavit: Rule 39.01(4); Onespace Unlimited Inc. v. Plus Development Group Corp., 2021 ONSC 7221 at para 5. Mr. Strub clearly attests that his affidavit gives information drawn from his personal knowledge by having acted as counsel for Mobilinx. In light of this, I would accept that Mr. Strub sufficiently attested to the facts of his belief for the disputed portions of his affidavit. Having considered the impugned hearsay that largely gives the context of this case in a rather non-controversial manner (i.e., in light of the parties' positions in this litigation), I would not strike any of the hearsay for being improper.
[10] York1 further submits that the impugned content in Mr. Strub's affidavit contains improper arguments and opinions to improperly bolster Mobilinx's within motion to quash the examinations. It is inappropriate for a witness to give evidence, whether opinion or otherwise, that constitutes argument to support that party's position on the issues to be decided by the court: Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 (Div Ct) at para 123, citing Coote v. Zellers, [2008] OJ No 809 (Div Ct) at para 22, and Ontario (Ministry of Natural Resources) v. Ontario Federation of Anglers and Hunters, [2001] OJ No 750 (Div Ct) at paras 12, 26. However, as Mobilinx aptly notes, York1 responded to the motion to quash by filing the affidavit of Ken Sweeney sworn March 7, 2025 that is also peppered with arguments and opinions. I acknowledge that an expression of opinion in a non-expert affidavit is not necessarily inadmissible where it requires no special knowledge and the inference is virtually inextricable from the facts on which it is based that may be admissible as being the affiant's observation: Onespace at para 6(c). In any event, the arguments and opinions in the affidavits from Mr. Strub and Mr. Sweeney were all raised by counsel in their submissions on the motion to quash. In light of this, and in fairness to both parties, I have construed these arguments and opinions as submissions for my consideration.
[11] Accordingly, I decline to grant leave for York1's cross-motion and, in any event, I would not grant the cross-motion in the particular circumstances of this case.
The Underlying Lien Claim
[12] In the underlying lien action, York1 seeks to recover over $13.1 million from Mobilinx in unpaid amounts for invoiced work that it performed under a subcontract, discussed below, to dispose of excavated soil for a public transit development project.
[13] The public transit development project was established when Mobilinx Hurontario General Partnership ("Project Co.") entered into a project agreement (the "Project Agreement") with the contracting authority consisting of Ontario Infrastructure and Lands Corporation and Metrolinx (the "Contracting Authority") for a project formerly known as the Hurontario Light Rail Transit Line, now called the Hazel McCallion Line (the "Project"). Project Co. entered into a construction contract (the "Construction Contract") with Mobilinx, an unincorporated joint venture, for the design and construction of the Project. York1 entered into a subcontract with Mobilinx to receive, treat, and dispose of certain excavated soil (the "Subcontract") as part of the Project.
[14] The Subcontract contains a dispute resolution clause. Mobilinx takes the position that the clause requires any dispute between Mobilinx and York1 that is related to any of the so-called "upstream disputes", as further discussed below, to be referred to an alternative dispute resolution ("ADR") process. In this regard, section 12 of the Subcontract provides in part:
The Parties agree that at all times each of them will make bona fide efforts to resolve by amicable negotiations any and all disputes arising between them. In the event that either Party determines that it is not possible to resolve a dispute by way of amicable negotiations then either Party may deliver, as applicable, a written notice of dispute. To be effective, the Notice of Dispute must expressly state that it is a notice of dispute, set out the particulars of the matter in dispute, [and] describe the remedy or resolution sought by the Party issuing the Notice of Dispute.
To the extent any Dispute relates to the same matter or is otherwise related to, or has issues in common with, a dispute between Mobilinx and Project Co., or between Project Co. and the Contracting Authority, such Dispute shall be referred to the Dispute Resolution Procedure in the Construction Contract or the Project Agreement as the case may be, and the Supplier shall comply with such requirement and be bound by any decision or determination made under the Dispute Resolution Procedure in the Construction Contract or the Project Agreement as the case may be. … [Emphasis added]
[15] York1 submits that the ADR procedure set out under section 12 of the Subcontract was never invoked as Mobilinx did not deliver a Notice of Dispute and, therefore, waived any rights it may otherwise have exercised to trigger or engage the ADR process.
[16] On April 12, 2024, York1 commenced the underlying lien action to recover payments that Mobilinx allegedly owed for its soil disposal work under the Subcontract. To date, Mobilinx has not disputed York1's invoice nor taken any issue with the services that were provided.
[17] On July 11, 2024, Mobilinx delivered its statement of defence that reserved its right to bring a motion to stay York1's lien action pursuant to the ADR process in the Subcontract.
[18] On September 25, 2024, the lien action was conferenced by Shaw J. who declined to fix a timetable for the action before Mobilinx's motion to stay York1's lien action was heard.
[19] On October 15, 2024, Mobilinx served the motion record for its stay motion that included a supporting affidavit from Omar Abdelmaksoud, its senior contracts administrator, who attests that York1's lien claims are related to, or have issues in common with, alleged upstream disputes between Mobilinx and Project Co., and between Project Co. and the Contracting Authority (collectively, the "Upstream Disputes"). Based on the purported relationship between the lien claim and the Upstream Disputes, Mobilinx moved to stay the lien action pending a resolution of the Upstream Disputes under the ADR process in s. 12 of the Subcontract. York1 is opposing the stay motion by taking the position that the Upstream Disputes are irrelevant to its lien claim as Mobilinx never gave written notice of a dispute to invoke the ADR process under the Subcontract. Arguing that Mobilinx led no meaningful evidence to show that an ADR process was ever triggered in the Upstream Disputes, York1 further opposes the stay motion and takes the position that Mobilinx is simply trying to delay the determination of its lien claim by having it referred to an ADR process that is not implicated and, therefore, is unnecessary.
[20] At triage court on October 22, 2024, Tzimas J. (as she then was) ordered a timetable for the stay motion. Among other things, the timetable required cross-examinations, if any, to be completed by December 20, 2024. During the attendance, York1 did not seek to schedule any Rule 39.03 examinations and none were timetabled.
[21] On November 8, 2024, York1 served its responding record for the stay motion together with notices of examination for Mr. Abdelmaksoud, Mr. Salman, and Mr. Barreto.
[22] Mobilinx does not object to York1 cross-examining their affiant, Mr. Abdelmaksoud, on his affidavit for the stay motion. However, it objects to the proposed examinations of Mr. Salman and Mr. Barreto by arguing that their evidence is unnecessary as Mr. Abdelmaksoud's evidence more than adequately sets out the facts and context required to appropriately argue the stay motion (i.e., by describing how the lien claim is tied to the Upstream Disputes and, therefore, why the lien action should be stayed for the claim to go to an ADR process under s. 12 of the Subcontract). In turn, Mobilinx submits that the proposed examinations amount to an abuse of process.
[23] York1 submits that Mr. Abdelmaksoud is not a proper witness for the stay motion as he never dealt with York1 before swearing his affidavit and thus cannot reasonably give meaningful evidence of meetings, communications, or other bona fide efforts to resolve its lien claim, or to otherwise escalate or refer the claim to ADR in any of the alleged Upstream Disputes (i.e., pursuant to the Construction Contract or the Project Agreement, as the case may be) as required to invoke the ADR process under s. 12 of the Subcontract. York1 also submits that Mr. Salman and Mr. Barreto regularly dealt with Mr. Sweeney and other York1 staff and, therefore, are able to give evidence about the lien claim and its payments discussions, which is relevant for the stay motion. York1 further submits that Mr. Salman and Mr. Barreto can testify about whether Mobilinx gave notice of any referral of the lien claim to ADR in any of the Upstream Disputes (i.e., to trigger the ADR process under the Subcontract), that would offer highly relevant evidence for the stay motion.
Legal Principles
[24] The parties largely agree on the legal principles that apply on this motion to stay the proposed examinations.
[25] Recently, in Construction Jadco Inc. v. Gamma Windows and Walls International Inc., 2025 ONSC 748 at paras 13-15, Ryan Bell J. summarized the legal principles governing a motion to quash a summons to witness under Rule 39.03(5) as follows:
[13] Rule 39.03 provides that a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of their evidence available for use at the hearing. The onus is on the party seeking to conduct the examination to show on a "reasonable evidentiary basis" that the examination would be conducted on issues relevant to the pending motion and that the proposed witness is in a position to offer relevant evidence: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), at para. 30.
[14] The threshold for what constitutes a "reasonable evidentiary basis" that the examination would be conducted on issues relevant to the underlying motion is not a high one: Bearden v. Lee, at paras. 16-18; Pixiu Solutions Inc. v. Canadian General-Tower Ltd. et al, 2016 ONSC 906, at para. 19; Derenzis v. Scoburgh, 2021 ONSC 3286, at paras. 42, 43. As Sharpe J.A., writing for the majority in Payne v. Ontario Human Rights Commission, explained at para. 170, to impose a heavy onus would not only be inconsistent with Canada Metal Co. v. Heap (1975), 7 O.R. (2d) 185 (Ont. C.A.) and "a long line of cases that have followed," but would also render resort to r. 39.03 "virtually redundant" by requiring an applicant to prove their case before securing access to the process under the Rules to adduce evidence.
[15] Where a party serves a summons to examine a witness on a pending motion, an opposing party may move to quash the summons on the ground that the evidence sought is not relevant to the motion or that the examination or the underlying proceeding would amount to an abuse of process. The principles that apply to the question of whether a summons served on a witness pursuant to r. 39.03 should be quashed were summarized by Perrell J. in Elmaati v. Canada (Attorney-General), 2013 ONSC 3176, at paras. 61-68, and adopted in PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857 (Div. Ct.), at para. 15 [with citations omitted]:
If the summons to witness is challenged, the party seeking the examination should be prepared to show the evidence is relevant to the pending application or motion and that the party to be examined is in a position to provide the evidence.
If the party seeking the examination cannot satisfy the relevancy and evidentiary screening, the summons is regarded as a "fishing expedition" and an abuse of process.
If the examination is being used for an ulterior or improper purpose, or if the process is itself an abuse, the summons will be set aside on that ground.
An examination is improper if the purpose of the examination is to prematurely inquire into a party's defences or otherwise commence the discovery process.
In considering whether to strike the summons, the court will consider the nature and grounds for the motion to determine the issues for which the examination is in aid.
Once the party seeking to conduct the examination shows that the proposed examination is about an issue relevant to the pending motion and that the party to be examined is in a position to offer possibly relevant evidence, the party need not go further and show that the proposed examination will provide evidence helpful to that party's cause.
If the evidence would be possibly relevant to the issues, the burden is on the party challenging the summons to show that the examination or the underlying proceeding is an abuse of process.
In considering whether to quash a summons, the court may consider the merits of the underlying proceeding. [Emphasis added]
See also Pixiu Solutions Inc. v. Canadian General-Tower Limited, 2016 ONSC 906 at paras 18-19, and Derenzis v. Scoburgh, 2021 ONSC 3286 at paras 36-41.
[26] Courts may impose conditions on the scope of a Rule 39.03 examination to confine the questioning to relevant issues: PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857 (Div Ct) at para 15. The examination must be relevant to issues on the motion and cannot be used as a general discovery within the action: Payne v. Ontario Human Rights Commission at para 165; Li v. Zhou, 2023 ONSC 3651 at para 37.
Analysis
[27] As set out below, I am satisfied that York1 should be permitted to examine Mr. Salman and Mr. Barreto under Rule 39.03(1).
[28] I am not persuaded by Mobilinx's submission that the evidence sought by York1 by its proposed examinations of Mr. Salmon and Mr. Barreto is not relevant to the stay motion, or that the proposed examinations or the underlying lien action by York 1 amount to an abuse of process. I am satisfied that York1 has met its onus to establish on a reasonable evidentiary basis that the examinations would canvass issues relevant to the stay motion, and that both proposed witnesses are in a position to offer relevant evidence. In addition, I am satisfied that York1 has shown on reasonable evidence that it has a viable, if not compelling, lien claim on the record as filed.
[29] The central issues on the stay motion are: a) whether York1's lien claim with Mobilinx, "relates to the same matter or is otherwise related to, or has issues in common with" the alleged Upstream Disputes (i.e., any disputes as between Mobilinx and Project Co. or between Project Co. and the Contracting Authority); and, if so b) whether the lien claim dispute must be referred to an ADR process under the Construction Contract (i.e., as between Mobilinx and Project Co.) or the Project Agreement (i.e., as between Project Co. and the Contracting Authority) in accordance with the terms of s. 12 to the Subcontract.
[30] From the record as filed, I am satisfied that the proposed examinations of Mr. Salman and Mr. Barreto should be allowed so that York1 may examine these witnesses on their understanding of whether the lien claim is subject to an ADR process in any of the alleged Upstream Disputes under s. 12 of the Subcontract. As Mr. Salman and Mr. Barret regularly dealt with Mr. Sweeney about the financial and payment issues related to the lien claim, I find that York1 has met is onus to show a reasonable evidentiary basis for the proposed examinations. In turn, I accept that both proposed witnesses can give evidence about the lien claim, whether it is tied to the Upstream Disputes, and whether the claim should be referred to an ADR process pursuant to the Subcontract, all of which is relevant evidence for the stay motion: Jadco at paras 14-15. In making this finding, I note that York1's onus for showing a reasonable evidentiary basis that the proposed examinations would address relevant issues for the stay motion is not high: Jadco at para 14.
[31] Mr. Sweeney, who is York1's chief financial officer, states that Mr. Salman, who is Mobilinx's administration, finance and control manager, told him in December 2023 that Mobilinx planned to give York1 a $1 million partial payment against the lien claim by December 21, 2023, and a further $500,000.00 partial payment by the first week in January 2024. Mobilinx takes the position that any assurances that Mr. Salman gave to Mr. Sweeney about partial payments for the lien claim were contingent on the Upstream Disputes being resolved. In light of this, I accept that York1 should be allowed to examine Mr. Salman on whether he gave Mr. Sweeney these partial payment assurances or promises and, if so, whether they were conditional on the resolution of any Upstream Disputes.
[32] Mr. Sweeney states that Mr. Barreto, who is Mobilinx's child accountant and accounts payable head, advised during a meeting on January 10, 2024 that Mobilinx had "internal approval" to pay York1's $5.8 million over-120 day balance but was awaiting consortium and government funds for which no definitive payment date was available. Mr. Sweeney's evidence on this point is supported by his email message to Mr. Salman and Mr. Barreto on January 11, 2024 that he sent to confirm, among other things, Mr. Barreto's payment assurance at the January 10, 2024 meeting.
[33] As Mr. Sweeney's account of the January 10, 2024, as later confirmed in his January 11, 2024 email message, confirms Mr. Barreto's remark that Mobilinx was awaiting consortium and government funds, Mobilinx submits that it was mutually understood that Mobilinx's payments to York1 were contingent on a resolution of the Upstream Disputes. York1 submits that Mobilinx changed or mischaracterized its position as it was never clear that it would be awaiting a resolution of the Upstream Disputes before making any payments. Pointing to Mr. Barreto's apparent reference to the "internal approval" for making the partial payment that did not mention the Upstream Disputes, York1 submits that he told Mr. Sweeney that partial payment would be made once Mobilinx itself received funds without linking this to the Upstream Disputes or any pay-when-paid or other delayed payment arrangement. York1 further relies on other email messages from Mr. Sweeney to Mr. Salman and Mr. Barreto to show that Mobilinx's payments were never understood to be contingent. In an email message sent to Mr. Salman and Mr. Barreto on February 5, 2024, Mr. Sweeney wrote, "[c]hecking in to see if there is a payment coming this week?" Later on March 6, 2024, Mr. Sweeney again asked about payment by writing, "[a]s discussed, and acknowledged by you and your team, we haven't been paid for many invoices dated back as late as June of last year (over 9 months), which carries with it a financial cost. … Please advise as to timing of payment." Relying on these messages, York1 states that it relied on the representations that Mr. Barreto and Mr. Salman gave to Mr. Sweeney, that it expected to be paid accordingly, and that it did not understand that its lien claim would be impacted by the Upstream Disputes.
[34] Mr. Sweeney gave evidence that Mr. Barreto told him at the January 10, 2024 meeting that Mobilinx had submitted a purchase request for $5.3 million on York1's outstanding under-120 day balance, and expected "visibility" on the timing of its approval around January 19, 2024. York1 submits that Mr. Barreto gave this partial payment assurance that was not tied to the Upstream Disputes. Mobilinx submits that this assurance was conditional on the Upstream Disputes being resolved.
[35] During an exchange of email messages, Mr. Barreto explained Mobilinx's payment delays by embedding a red-highlighted comment in Mr. Sweeney's January 11, 2024 email message that stated, "[t]he delay was caused due to no Change Order as the existing contract or PO value was exhausted and [sic] require to increase the contract value to process the invoices in the system." Mobilinx submits that its non-payment of the lien claim was tied to the Upstream Disputes, but York1 notes that Mr. Barreto did not clearly state this in his written comment to Mr. Sweeney.
[36] Only Mr. Barreto can clarify whether his comments to Mr. Sweeney about Mobilinx giving "internal approval" for the $5.8 million partial payment and awaiting consortium and government funds meant that Mobilinx's payments to York1 were conditional on the Upstream Disputes and an ADR process under the Subcontract, or whether they were simply given to explain Mobilinx's delay in paying York1's outstanding claims. Similarly, only Mr. Barreto can explain or clarify his comments about the $5.3 million purchase request, along with his other red-highlighted comments. His evidence will clearly be relevant, if not important or decisive, in addressing the stay motion. In the circumstances, I am satisfied that York1 should be allowed to examine Mr. Barreto on these relevant areas of evidence.
[37] Mobilinx submits that Mr. Abdelmaksoud's evidence more than adequately addresses the relationship between York1's lien claim and the Upstream Disputes irrespective of any evidence that Mr. Salman or Mr. Barreto may have on this subject. Mr. Abdelmaksoud attests that he was involved in the Upstream Disputes that dealt with non-payments to Mobilinx for work to dispose of excavated soil for the Project, and further attests that without prejudice negotiations in the Upstream Disputes are ongoing. Based on this, Mobilinx submits that Mr. Abdelmaksoud has adequately addressed the matter of York1's lien claim and its relationship to the Upstream Disputes in his affidavit that will be tested during York1's impending cross-examination of him. In the circumstances, Mobilinx submits that any evidence that Mr. Salman or Mr. Barreto may give in their proposed examinations would be redundant or unnecessary and, therefore, amount to an abuse of process. With respect, I am not persuaded by this submission.
[38] Regardless of the evidence from Mr. Abdelmaksoud (i.e., whether in his affidavit or under cross-examination) about the lien claim and any connection it may have to the Upstream Disputes, I find that York1 should be allowed to examine Mr. Salman and Mr. Barreto on these area of evidence. I am satisfied that York1 has shown on reasonable evidence that both proposed witnesses are in a position to give evidence about the lien claim and their partial payment assurances or promises in relation to the Upstream Disputes, that will be relevant for the stay motion: Jadco at paras 14-15. In arriving at this, I am not persuaded that a party can prevent an opposing party from conducting a Rule 39.03 examination of a witness with relevant evidence on controversial matters by filing arguably one-sided evidence to "cover the field". In any event, I accept that Mr. Salman and Mr. Barreto both dealt with York1 and its lien claim and, therefore, are in a position to provide relevant testimony that may depart from or better inform Mr. Abdelmaksoud's evidence about the lien claim or its viability. On the particular facts of this case, I do not find that Mr. Abdelmaksoud's evidence necessarily shows that examinations of Mr. Salman and Mr. Barreto would be inevitably lead to unduly repetitive evidence that would amount to an abuse of process. It is not an abuse of process to examine a witness with relevant evidence, even if others may have better knowledge: Derenzis at para 62. In my view, even if Mr. Abdelmaksoud has knowledge of the Upstream Disputes, York1 should be allowed to examine Mr. Salman and Mr. Barreto as they can provide relevant evidence about whether or how York1 was notified that its lien claim was tied to the Upstream Disputes through their dealings with Mr. Sweeney or other York1 staff. By contrast, Mr. Abdelmaksoud did not deal with York1. Even if Mr. Abdelmaksoud dealt with the Upstream Disputes (i.e., as Mr. Strub claims in hearsay evidence given on information and belief), it is unclear whether Mr. Abdelmaksoud can speak to Mobilinx' non-payment of York1's lien claim, or whether Mobilinx gave notice to York1 of the Upstream Disputes to trigger the ADR procedure under s. 12 of the Subcontract. All of this will be important on the motion to stay the lien claim.
[39] In my view, this case is distinguishable from the circumstances in Derenzis where the court quashed a Rule 39.03(5) summons as an abuse of process. In that case, the court found that the proposed witnesses were not in a better position to answer relevant questions and that the examinations, therefore, would be overly-duplicative and amount to an abuse of process: Derenzis at paras 64-68. In addition, I find that this case is distinguishable from Schreiber v. Mulroney where the court quashed a Rule 39.03(5) summons as an improper attempt to conduct a third-party discovery or fishing expedition as nothing in the record showed that the proposed witness had relevant evidence to give: Schreiber at para 13. In this case, I am satisfied that York1 has established that Mr. Salman and Mr. Barreto are able to provide relevant evidence for the stay motion.
[40] Having considered the particular circumstances of this case, I do not find that York1 is trying to examine Mr. Salman and Mr. Barreto for any improper purpose, such as conducting a general discovery or fishing expedition, or to achieve some other ulterior, improper, or tactical purpose: Jadco at para 15; Derenzis at para 49; Lauzon v. Axa Insurance (Canada), 2012 ONSC 6730 at para 27, aff'd 2013 ONCA 664. I find that York1 has shown on reasonable evidence that Mr. Salman and Mr. Barreto are senior Mobilinx representatives who dealt with the lien claim and, therefore, are in a position to give relevant evidence about the claim and its viability that are central issues for Mobilinx's stay motion. Among other things, both can speak to whether they notified Mr. Sweeney or others at York1 that Mobilinx's non-payment or delayed-payment of the lien claim was due to the Upstream Disputes and an ADR process under the Subcontract. In light of this, I do not find that the proposed examinations give rise to an abuse of process: Jadco at para 15. Should York1 exceed the proper scope of questioning in the course of examining either witness, it would be open for Mobilinx to object during the examination and seek a ruling at the return of the stay motion, as required.
[41] I am not persuaded by Mobilinx's submission that York1 should not be allowed to conduct the proposed examinations because the timetable for the stay motion that Tzimas J. ordered at triage court on October 22, 2024 did not expressly provide for this. I am not persuaded that the timetable order was ever meant to bar the proposed examinations, or that York1 breached the order or otherwise engaged in a collateral attack by serving notice of the examinations. In addition, I do not accept that York1 waived its right to conduct examinations by not asking for examinations to be included in the timetable order. In my view, York1 acted with reasonable diligence in giving notice of the examinations on November 8, 2024 when it served its responding record for the stay motion. Both proposed witnesses are in a position to give relevant, if not important, evidence for the stay motion. In the circumstances, I am not persuaded that York1 should be prevented from exercising its examination rights under Rule 39.03 based on an overly rigid application of the timetable order as Mobilinx has argued.
[42] After taking everything into account, I am satisfied that York1 has shown on a reasonable evidentiary basis that Mr. Salman and Mr. Barreto are in a position to give relevant evidence about the lien claim, about how Mobilinx intended to pay the claim, and about the connection, if any, between the claim to the Upstream Disputes or the ADR procedure under s. 12 of the Subcontract. All of this evidence will clearly be important to the central issues on the stay motion. Accordingly, I am satisfied that York1 should be allowed to proceed with its examinations of Mr. Salman and Mr. Barreto as proposed.
Outcome
[43] Based on all of the foregoing, leave is granted for Mobilinx to bring its motion to quash the examinations and the motion is dismissed. In addition, leave is denied for York1's cross-motion to strike portions of Mr. Strub's affidavit on the motion to quash the examinations.
[44] Should the parties not settle the matter of costs for the motions, York1 may deliver written costs submissions of up to 2 pages (excluding its costs outline or any offer(s) to settle) within 15 days, and Mobilinx may deliver responding costs submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.
Date: August 6, 2025 M.T. Doi J.
Footnotes
[1] Although it appears that York1 did not formally serve Mr. Salman or Mr. Barreto with a summons to witness under Rule 39.03(5), Mobilinx brought its motion to oppose their proposed Rule 39.03(1) examinations by relying on the principles for setting aside a Rule 39.03(5) summons, as set out in Construction Jadco Inc. v. Gamma Windows and Walls International Inc., 2025 ONSC 748 at paras 13-15 (i.e., by making submissions as if York1 had served a summons under Rule 39.03(5) on both proposed witnesses). York1 took no issue with Mobilinx's approach in bringing the motion, that I accept was a fair and reasonable approach to take. Accordingly, I heard and determined the Mobilinx's motion to oppose both examinations on this basis.
[2] See Cases Center A91 to A94. York1 formally brought the cross-motion under Rule 39.01(5) (i.e., that applies to affidavits used on applications), however the parties acknowledged in submissions that Rule 39.01(4) (i.e., that applies to affidavits for use on a motion) is the operative rule governing York1's objections to the impugned paragraphs of Mr. Strub's affidavit sworn February 10, 2025.
[3] See paras 10, 25, 27 and 30 to Mr. Sweeney's affidavit sworn March 7, 2025: Case Center B-1-923, B-1-926 and B-1-927.
[4] Case Center G7.
[5] In its materials, Mobilinx suggested that York1 unilaterally scheduled its Rule 39.03(1) examinations of Mr. Salman and Mr. Barreto for December 18, 2024 without first canvassing dates. York1 states that the date for the examinations was chosen after Mobilinx did not respond to York1's earlier attempts to canvass examination dates. Ultimately, the selected examination date became moot as it was overtaken by the within motion to set aside the proposed examinations.
[6] Leave to appeal refused, [2002] SCCA No 252. See also Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. at para 18.
[7] In any event, York1 submits that the Subcontract does not contain a pay-when-paid clause, and denies ever agreeing to any such late payment arrangement.
[8] Tzimas J.'s triage court endorsement timetabled the exchange of motion materials and the completion of any cross-examinations of affidavits by December 20, 2024.