Court File and Parties

Court File No.: CV-21-00001719 (London) Date: 2025-10-15 Ontario Superior Court of Justice

Between: Millstone Homes Inc., Plaintiff – and – Gianni Curridor, Defendant

Before: Bezaire J.

Counsel:

• Stuart Mackay and Alexander Verrilli, for the Plaintiff
• Darwin E. Harasym, for the Defendant

Heard: June 13, 2025

Ruling on Motion

Introduction

1This action stems from allegations of fraud as against the defendant, Gianni Curridor ("Gianni"), a former employee of the plaintiff, Millstone Homes Inc ("Millstone"). Millstone alleges that Gianni embezzled money and forged its signature on an Agreement of Purchase and Sale dated January 5, 2021.

2A related action (CV-21-00001097-0000), which involved the same Agreement of Purchase and Sale and Gianni's son, Kevin Curridor, proceeded to trial in 2024. Per her judgment of February 4, 2025, Justice ten Cate determined that Kevin Curridor was protected under the Indoor Management Rule and dismissed the action. Millstone appealed the decision to the Court of Appeal. As of this motion, the appeal had not yet been heard.

3Gianni is of the view that Justice ten Cate made findings and conclusions with respect to the formation and timing of the Agreement of Purchase and Sale that preclude a court from finding that Gianni is liable to Millstone. As a result, Gianni brought a summary judgment motion.

4The summary judgment motion has not yet been set for special appointment. On consent, a timetable was approved by the court, requiring Millstone to deliver its responding motion materials by May 30, 2025. Millstone did not comply with the timetable.

5By this motion, Millstone seeks to vary the timetable to compel affidavits of documents and examinations for discovery prior to the delivery of its responding motion materials. As of the filing of the summary judgment motion, the parties had not yet exchanged affidavits of documents or conducted examinations for discovery.

6Millstone submits that discoveries are required for it to put its best foot forward. The allegations in this action relate to fraud, which Millstone alleges was concealed by Gianni. In the interests of fairness, Millstone argues it should be permitted to discover Gianni.

7Millstone also submits that Gianni's motion for summary judgment is for partial summary judgment only such that examinations for discovery will be required regardless of the outcome of the motion. However, this submission appears to have been made in error. Gianni has at all material times sought full summary judgment such that if successful, the motion would fully dispose of this action. Accordingly, this submission will not be addressed in this ruling.

8Gianni requests that the summary judgment motion proceed forward without delay. He submits that Millstone is in effect seeking a stay of the summary judgment motion and has failed to meet the requisite test for a stay per Ghaffari v. Asiyaban et al, 2012 ONSC 2724. More specifically, Gianni submits that a) the summary judgment motion has a reasonable chance of disposing of the action; b) the matter is not fundamentally complicated in that the issues on the motion can be resolved without trial; and c) this is not one of the clearest cases where the court should stay the motion until after discovery. This matter calls for simplified and proportionate procedures.

9For the reasons that follow, I find this to be a clear case where a stay should be granted to allow for the discovery process, at least in part. By its nature, allegations of fraud and forgery involve credibility issues, which are notoriously difficult to deal with properly on a paper record. Further, the related action did not involve all the same issues as this action. The related action also remains under appeal. It is therefore unclear if the result in the related action will be determinative of this action.

10The commencement of a summary judgment motion does not automatically stop the requirement for parties to exchange relevant documents or to submit to examinations for discovery. It simply calls for parties to consider the fair and proportionate procedure to be applied in the circumstances of the case.

11As required by r. 1.04(1) and (1.1), the rules are to be liberally interpreted to ensure the just, most expeditious, and least expensive determination of civil proceedings on their merits. This was not accomplished by Gianni taking a literal interpretation of the case law and refusing to provide an affidavit of documents. Further, this was not accomplished by Millstone insisting on examinations for discovery before delivering its responding materials, when it has a right under r. 39.02 to cross-examinations on the motion. A simplified and proportionate procedure is required.

12Accordingly, and as noted below, I order that the parties exchange affidavits of documents prior to Millstone delivering its responding materials. If the parties deem it appropriate, they may also conduct cross-examinations on the motion. There is no need for full examinations for discovery.

Analysis

13The issue to be determined on this motion is whether the court should order a timetable that includes affidavits of documents and examinations for discovery to proceed before the defendant's summary judgment motion.

14Rule 30.03(1) provides that a party to an action shall serve on every other party an affidavit of documents disclosing to the full extent of the party's knowledge, information, and belief all documents relevant to any matter in issue that are or have been in the party's possession, control, or power.

15Rule 29.1.03 provides that where a party to an action intends to obtain evidence under r. 30 or 31, the parties shall agree to a discovery plan. If a party fails to agree to a discovery plan, r. 29.1.05(2) provides that the court may order examinations for discovery be conducted in accordance with a court-mandated plan, which may set a schedule for examinations and impose such limits on the right of discovery as are just.

16On or around February 26, 2025, Millstone served its Affidavit of Documents, draft Discovery Plan, and proposal for an examination schedule. The proposed schedule included Gianni delivering his Affidavit of Documents by March 31, 2025, and examinations being conducted in or around May 2025.

17A few days later, counsel for Gianni responded by letter questioning whether there was anything left to litigate in light of the decision of Justice ten Cate in the related action (CV-21-00001097-0000). Then, on March 7, 2025, Gianni served his motion for summary judgment.

18It is trite that the court can impose a discovery plan on the closed pleadings regardless of any proposed or pending motions: The Case Store Financial Services Inc. v. National Money Mart Company, 2013 ONSC 2905, at paras. 52-54.

19The complicating factor in this case is the fact that the motion brought is a motion for summary judgment. Affidavits of documents and examinations for discovery are not necessarily required prior to summary judgment motions: r. 20.05(2); D'Amico v. Claveau, 2023 ONSC 2508, at para. 40; IML Roofing & Sheet Metal Systems Inc. v. The Regional Municipality of Peel and Struct-Con Construction Ltd., 2019 ONSC 908, at para. 50; Scorsis v. Canopy Growth Corporation, 2019 ONSC 2140, at para. 14.

20In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada emphasized the need to interpret the summary judgment rules broadly, favouring proportionality and affordable, timely, and just adjudication of claims: Hryniak, at para. 5.

21However, the Supreme Court also made clear that an order to stay or dismiss an improper or premature motion may be appropriate in certain cases, including to challenge lengthy, complex motions, particularly on the basis that they would not advance the litigation or serve the principles of proportionality, timelines, and affordability: Hryniak, at para. 72.

22Gianni relies on the decision in Stantec Consulting Ltd. v. Altus Group Limited, 2014 ONSC 6111, a similar fact case, in support of his position that a stay of the summary judgment motion pending discoveries is not appropriate. Stantec sought to have the discovery process proceed prior to Altus Group's summary judgment motion. Like Millstone, Stantec argued that the action was complex, and the discovery process was necessary to put its best foot forward. Like Gianni, Altus Group argued that the case was not complex and Hryniak required the dispute to be resolved in a proportional and efficient way.

23Justice Chapnik agreed that Stantec's request for discoveries in advance of the summary judgment motion was a request to stay the motion, requiring the application of the Ghaffari test, which is set out at para. 14 of Ghaffari as follows:

a. the court should look at the motion for summary judgment and the reasonable chances of success in determining whether a stay is appropriate. The party seeking the stay should put their best foot forward as they would on a motion for summary judgment to say there is a genuine issue requiring a trial or why the matter is too complicated for the motion judge to ascertain the full appreciation of the case;

b. the court then ought to determine whether the matter is complicated; what are the issues; the nature of the evidence and law to determine the issues; and whether the case can be determined without the necessity of a full trial; and

c. only in the clearest of cases should the court impose a stay.

24After applying the Ghaffari test, Justice Chapnik denied Stantec's request for a stay of proceeding. She found that the summary judgment motion had a reasonable chance of disposing of the action, the matter was not complicated, and this was not one of the clearest of cases where the court should stay the motion. Of note, Justice Chapnik found at para. 19, that discovery would be supplemental to the disclosure and cross-examinations that may be conducted as part of the summary judgment motion such that there was no basis for Stantec's argument that it would be deprived of relevant documents without discoveries.

25The Ghaffari test was also applied by McEwen J. in Bondfield Construction Company Limited v. Deloitte LLP et al. and Zurich Insurance Company Ltd. v. Deloitte LLP et al., 2022 ONSC 1542, another similar fact case. However, a different result was reached: the summary judgment motion was stayed pending discoveries.

26In Bondfield, Justice McEwen held that the Ghaffari test should not be rigidly applied, noting that the Supreme Court of Canada in Hryniak reiterated the discretionary nature of the court's powers on summary judgment motions, including the need for flexibility in deciding the appropriate course of action. Summary judgment is only appropriate where it leads to a fair process and just adjudication: Bondfield, at paras. 44-45.

27Justice McEwen further held that case management is an important consideration in determining whether a stay is appropriate, at para. 43:

… although I do not dispute the three-part test in Ghaffari, which includes the instruction that the Court should only impose a stay in the clearest of cases, it is important to keep in mind the unique nature of significant cases that are being heavily case managed such as the matters before me. In Ghaffari, there did not appear to be any case management and it involved a straightforward property transfer where the facts appeared to be uncontested. The actions that I am managing more resemble the situation in Domtar. They are complicated and significant commercial matters. As the case management judge, I have concluded that a stay should clearly be imposed.

28There is no hard and fast rule that discovery obligations cease once a summary judgment motion is commenced or that the test in Ghaffari should be rigidly applied before allowing discoveries to proceed. The courts have flexibility to determine a suitable process to ensure summary judgment motions are appropriate and are conducted in a fair, cost-effective, and just manner.

29Parties are well-advised to consider the requirement for proportionality as set out at r. 1.04 when determining their positions when discovery is requested in advance of summary judgment motions.

30With respect to the application of the Ghaffari test to this case, I am not satisfied that the summary judgment motion has a reasonable chance of success. This is a fraud case. By its nature, allegations of fraud and forgery involve credibility issues, which are notoriously difficult to deal with properly on a paper record.

31Further and contrary to Gianni's submissions, I am not satisfied that Justice ten Cate's findings on the related action will be determinative of this action. The issues in this action were not all adjudicated in the related action; the related action was restricted to the alleged fraud related to the Agreement of Purchase and Sale.

32At the trial of the related action, Millstone was not permitted to cross-examine Gianni regarding his employment or any allegations of fraud unrelated to the Agreement of Purchase and Sale. As such, there was no cross-examination regarding the alleged embezzlement set out in Millstone's forensic accounting report or any of the other possibly fraudulent activities of which Millstone is not currently aware. With the benefit of cross-examination on all issues, the result in this case may differ from the result in the related action.

33Further, the fact that Gianni repaid $434,294.91 to Millstone after being confronted about the alleged fraud does not necessarily resolve all other issues. Millstone is seeking punitive and exemplary damages and is potentially entitled to these damages over and above any compensatory amounts paid.

34The alleged fraud and forgery, if any occurred, was likely concealed from Millstone. I have significant concerns that allowing the summary judgment motion to proceed without more fulsome discovery would as a result prejudice Millstone or at least not result in a fair process.

35Finally, the decision in the related action remains under appeal. It would not be a good use of judicial resources to have the motion proceed prior to the appeal decision being released.

36For these reasons, I find this to be a clear case where a stay is appropriate. But, I also find this to be a case that calls for a proportionate process as required by r. 1.04(1.1). The full discovery procedure is not necessary given the parties' right of cross-examination.

37In my view, the proportionate result is for the parties to exchange sworn affidavits of documents and conduct cross-examinations as permitted on the motion. This would ensure the full exchange of all relevant documents as well as opportunity for Millstone to examine Gianni, who swore an affidavit in support of the motion.

Disposition

38Accordingly, I order as follows:

a. The parties shall each exchange affidavits of documents by November 14, 2025.

b. The plaintiff shall deliver its responding motion record by no later than December 12, 2025.

c. If required by either party, cross-examinations shall be conducted by no later than February 13, 2026.

d. Answers to undertakings shall be provided by no later than March 27, 2026.

e. Undertakings motions, if any, shall be heard by May 29, 2026.

f. The moving party's factum shall be served by no later than July 17, 2026.

g. The responding party's factum shall be served by August 21, 2026.

h. The hearing of the summary judgment motion shall be set for a special appointment to be heard in the fall of 2026. I expect that Millstone's appeal will have been decided by this time but if not, I direct that the motion be set for hearing after the appeal decision is released. The parties are directed to contact Trial Coordination to schedule the hearing and file the necessary Certificate of Readiness.

39During oral submissions, counsel noted that the parties are facing a looming dismissal deadline. This deadline ought to be extended to allow for the summary judgment motion and any additional steps required thereafter. I therefore also order that the dismissal deadline be extended to December 31, 2028. This should provide sufficient time for the adjudication of the summary judgment motion and any steps required thereafter, but if not, the parties may request a further extension in future.

Costs

40The result on this motion was divided. I am presumptively of the view that no costs be payable. However, if the parties disagree, or there are offers to settle that should be considered, the parties may each provide written cost submissions, not to exceed five pages, double-spaced, along with their Bills of Costs, within 30 days of the date of this decision.

Jennifer E. Bezaire