Court File and Parties

Court File No.: CV-20-652187

Motion Heard: July 18, 2025 and July 28, 2025

Reasons Released: November 10, 2025

Superior Court of Justice – Ontario

Plaintiffs:

• Eringate Homes Corp.
• MGI Construction Corp.
• Sergio Di Nicola

-and-

Defendants:

• Anthony Maniaci also known as Tony Maniaci
• Pensio Property Management Group Inc.
• Pensio Manage Group Inc.
• Pensio Real Estate Group Inc.
• John Hamilton
• Brandon Keks
• Dimitris Milankov also known as Jim Milankov
• Joe Marchante
• Citadell Underwriters, LLC
• Rentalis Insurance Company, Inc.

Before: Associate Justice McGraw

Counsel:

C. Marino (cmarino@dakllp.com) – for the Plaintiffs

P. Bakos (pb@barlaw.ca) – for the Defendants Pensio Property Management Group Inc., Pensio Real Estate Group Inc., John Hamilton, Brandon Keks, Dimitris Milankov, Joe Marcantel, Citadel Underwriters LLC and Rentalis Insurance Company Inc. (the "Pensio Defendants")

K. Schoenfeldt (kevin@kestenberglitigation.com) – for the Defendant Anthony Maniaci also known as Tony Maniaci

Reasons For Endorsement

I. Background

[1] The Plaintiffs and the Pensio Defendants have brought undertakings and refusals motions involving over 140 questions. There are approximately 108 questions at issue on the Plaintiffs' motion and 33 on the Pensio Defendants' motion.

[2] The Plaintiff Sergio Di Nicola ("Di Nicola") is the principal of the Plaintiffs Eringate Homes Inc. ("EHI") and MGI Construction Inc. ("MGI"). In October 2018, EHC retained the Defendants Pensio Property Management Group Inc. ("Pensio Property") and Pensio Real Estate Group Inc. ("Pensio Real Estate", collectively "Pensio") and the Defendant John Hamilton ("Hamilton") to help obtain financing for the purchase of lands in Barrie from Mapleview Developments Ltd. (the "Property"). The Plaintiffs allege that in reliance on representations by Pensio and Hamilton, EHC agreed to purchase a rental income program ("RIP") with the Defendants Citadell Underwriters, LLC ("Citadell") and Rentalis Insurance Company, Inc. ("Rentalis") with respect to the development of the Property (the "Mapleview Project").

[3] The late Defendant Anthony Maniaci ("Maniaci") was a lawyer who regularly acted for Pensio and acted for them with respect to the RIPA. The Plaintiffs allege that Maniaci also acted for them with respect to the purchase of the Property, the RIP and their dealings with other parties and properties after the purchase of the Property did not proceed. The Plaintiffs also allege that there were discussions between Di Nicola, Pensio and Maniaci regarding a potential joint venture. Maniaci and the Pensio Defendants deny that Maniaci acted for any of the Plaintiffs. The Plaintiffs allege that it was only after the Mapleview Project did not proceed that Maniaci denied acting as their counsel.

[4] The Plaintiffs allege that Hamilton advised Di Nicola in November 2018 that the RIPA required EHC to deposit a $1,000,000 fee (the "Program Fee") into Maniaci's trust account. Di Nicola states that he attended at Maniaci's office on December 3, 2018 and gave Maniaci two (2) cheques from MGI each in the amount of $500,000 which were deposited into Maniaci's trust account (the "Trust Funds"). The Pensio Defendants submit that pursuant to section 6 of the Rental Income Program Agreement ("RIPA") between EHC and Pensio Property, the Program Fee was non-refundable and could have been paid directly to Pensio. The Defendants allege that pursuant to a Direction and Authorization dated December 3, 2018 (the "Direction") purportedly signed by Di Nicola, $967,000 was paid to Citdaell and/or Rentalis and $33,000 was paid to Pensio Property. The Plaintiffs dispute the authenticity of the Direction. On or about February 27, 2019, the Plaintiffs confirmed that the purchase of the Property would not be proceeding. Di Nicola requested the return of the Trust Funds on or about June 30, 2019, during the Summer of 2019 and again in 2020.

[5] The Plaintiffs commenced this action by Statement of Claim dated November 17, 2020 seeking return of the Program Fee and/or damages in the amount of $1,000,000. The Plaintiffs also seek various declarations including that Maniaci was negligent and breached his fiduciary duties and that the Defendants are liable for fraudulent misrepresentation, conspiracy, unjust enrichment, breach of trust and punitive damages of $250,000. The Pensio Defendants brought a Counterclaim in the amount of $5,000,000 for defamation or alternatively breach of contract, intentional and negligent misrepresentation, injurious falsehood, economic loss by unlawful means and intentional interference with economic relations and $250,000 in punitive damages.

[6] The Plaintiffs seek answers to undertakings and refusals from the examinations for discovery of Maniaci; Hamilton; the Defendant Brandon Keks ("Keks") (in his personal capacity and on behalf of Pensio); the Defendant Joe Marcantel ("Marcantel")(in his personal capacity and on behalf of Citadell and Rentalis); and the Defendant Dimitris Milankov ("Milankov"). The Plaintiffs' motions first came before me on June 13, 2024. In addition to undertakings, the Plaintiffs sought answers to approximately 138 refusals. Only 120 minutes were scheduled and it was apparent that the parties had not made sufficient efforts to discuss and resolve the disputed questions. The motions were adjourned to a telephone case conference on September 19, 2024 and a timetable was ordered for the exchange of charts and further discussions. At the case conference, the Plaintiffs' and the Pensio Defendants' motions were scheduled for January 23, 2025, another timetable was ordered and the parties were directed to schedule another telephone case conference for mid-December 2024 or early January 2025 to review all refusals. The parties did not schedule this case conference.

[7] When the parties attended at the motion on January 23, 2025, the refusals charts had not been updated since June 2024 and the Pensio Defendants had not provided any additional answers, were in the process of retaining new counsel and their existing counsel had brought a removal motion. The representation issues had impeded counsel's ability to provide answers, revise the charts and prepare for the motions. Accordingly, the motions were adjourned to a telephone case conference on March 21, 2025. The removal motion did not proceed, counsel for the Pensio Defendants remained on the record and the motions were scheduled to proceed before me on July 18, 2025 with a telephone case conference scheduled for June 17, 2025. Some of the undertakings and refusals charts were filed immediately before the case conference, further limiting the court's efforts to provide effective assistance.

[8] The motions proceeded on July 18, 2025, however, given the lack of case management and discussions between the parties, there were more disputed questions and issues than expected and a second day was scheduled for July 28, 2025. A summary judgment motion by Maniaci was scheduled for December 2 and 4, 2025 however, it was vacated by Brownstone J. on September 16, 2025.

II. The Law and Analysis

Generally

[9] Rule 31.06 provides that a person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action. Rule 1.04(1) further provides that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04(1.1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved in the proceeding and Rule 29.2.03 sets out the proportionality factors which apply to both oral and documentary discovery.

[10] The purpose of examinations for discovery is to: define the disputed and undisputed issues; know the case the parties must meet; obtain admissions; eliminate or narrow issues; and avoid surprise at trial (Green v. Canadian Imperial Bank of Commerce, 2020 ONSC 5342 at para. 8). Relevance, the scope of discovery and proportionality were summarized by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Discovery questions must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and "fishing expeditions" are not permitted (Rothmans at paras. 129 and 154-157).

[11] Given the number of disputed refusals and the lost opportunities to discuss them with counsel, significant case management was provided throughout the motion. In some cases, the parties made more substantive submissions, particularly with respect to the Pensio Defendants' assertions of privilege, and in others, they agreed to certain productions, inquiries, confirmations or other steps. A summary of the parties' agreements and where necessary my directions and dispositions are set out below. Approximately 5 under advisements have been resolved by the Defendants agreement to deliver their sworn affidavits of documents by July 31, 2025.

The Plaintiffs' Motion

Examination of Anthony Maniaci

[12] There are 11 refusals at issue from Maniaci's examination which was held on June 15, 2022. He passed away on November 27, 2023. The Plaintiffs have not obtained an order to continue as against Maniaci's Estate. This means that the Plaintiffs' action as against Maniaci is stayed, however, the Defendants have not objected to proceeding with these motions. Maniaci's Estate is represented by LawPro counsel who have possession of his files. Although they take no position, the Pensio Defendants assert solicitor-client privilege which Maniaci's counsel asserts on their behalf. There is no dispute that Maniaci represented the Pensio Defendants. However, one of the issues for trial is whether there was a solicitor-client relationship between the Plaintiffs and Maniaci. Accordingly, if this Court were to decide whether or not certain documents, communications and/or information sought by the Plaintiffs are subject to solicitor-client privilege it may in some cases pre-determine whether the Plaintiffs also had a solicitor-client relationship with Maniaci. Therefore, some refusals or disclosure requests must be determined by the trial Judge. Where I have concluded that solicitor-client privilege has been properly asserted, it is based on the record before me, is without prejudice to the parties' submissions at trial and with a view to avoiding the pre-determinations discussed above.

[13] Solicitor-client privilege is an indisputable substantive principle that is fundamental to the proper functioning of the legal system which should only be set aside when absolutely necessary (Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 at paras. 26 and 34). Solicitor-client privilege attaches to communications between a lawyer and client for the purpose of seeking or giving legal advice which is intended by the parties to be confidential (Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 26, Skysolar (Canada) Ltd. v. Economical Mutual Insurance Co., 2015 ONSC 4714 at para. 78). Solicitor-client privilege applies to the communications between the solicitor and client and not the facts which are otherwise discoverable (Skysolar at paras. 76-77).

[14] Name on File (Undertaking #2) – Maniaci undertook at discovery to advise what name was on the file folder for this matter. Pensio now asserts solicitor-client privilege over the label. As Maniaci already undertook to answer this question it shall be answered within 30 days.

[15] Retainer Agreement (Under Advisements #2-3) – The Plaintiffs request who prepared the retainer agreement between Maniaci and Pensio Property and if it was Maniaci, to provide access to the metadata saved in the hard drive to evidence when it was prepared. Maniaci's counsel confirmed at the motion that there is a retainer agreement. The Plaintiffs submit that the date is relevant to their allegations that the retainer agreement was prepared fraudulently after the fact. I am satisfied that the retainer agreement between Maniaci and Pensio Property or any of the Pensio Defendants, including its terms, who prepared it and when are subject to solicitor-client privilege. These questions do not have to be answered.

[16] Eringate File (Under Advisement #10) – The Plaintiffs ask whether Maniaci opened a file with respect to EHC and/or the Property. The parties agree that this information is not subject to solicitor-client privilege and the question shall be answered within 30 days.

[17] Accounts (Under Advisement #11) – The Plaintiffs ask whether or not Maniaci rendered any accounts. Maniaci advised that he did not render any accounts to the Plaintiffs as they were not his clients. The Plaintiffs initially sought copies of any accounts rendered to Pensio but now only request confirmation whether Maniaci rendered any accounts to Pensio. The Pensio Defendants assert solicitor-client privilege over this information. I conclude that Maniaci's billing arrangements with Pensio are subject to solicitor-client privilege and this question does not have to answered.

[18] Ledger (Under Advisement #12) – The Plaintiffs request a copy of the ledger from PCLaw (the "Ledger") which reflects the Trust Funds. Maniaci's evidence on discovery was that he used PCLaw to post the Program Fee received from the Plaintiffs. He also referred to the Ledger to answer Question #57 during his examination regarding how each cheque was posted in the Ledger. How Maniaci dealt with and documented the Trust Funds is a central issue in this action and the Ledger is therefore relevant to the Plaintiffs' allegations. The Pensio Defendants assert solicitor-client privilege, however, the Ledger relates to funds paid by the Plaintiffs and was relied on by Maniaci to answer questions during his examination. Therefore, the Ledger is relevant and probative and not privileged as against the Plaintiffs and to the extent to which it is privileged it has been waived and is therefore producible. The Ledger shall be produced within 30 days.

[19] Oshawa Property (Under Advisement #23) – The Plaintiffs request access to Maniaci's file with respect to the sale of a property at 63 Albany Street in Oshawa (the "Oshawa Property") which was being sold under power of sale. The Agreement of Purchase and Sale is attached and referred to in emails between Hamilton, Keks, Di Nicola and Maniaci. The Plaintiffs submit that this is relevant to the Defendants' allegations that the Plaintiffs did not mitigate their losses by failing to purchase other properties through the RIP. The Pensio Defendants assert solicitor-client privilege. The first step is to determine if Maniaci has a file or any other documents with respect to the Oshawa Property and if so, counsel shall discuss the production and disclosure of documents and information which may be made on a counsel's eyes-only basis exists (which the Plaintiffs have advised they would agree to) and/or with appropriate redactions. If Di Nicola was copied on any correspondence, solicitor-client privilege does not apply. Maniaci's counsel shall advise within 30 days if there is a file or any documents with respect to the Oshawa Property. Counsel shall then discuss terms of production.

[20] Communications re: Retainer Agreement (Refusal #1) – The Plaintiffs have withdrawn their request for all communications between Maniaci and Pensio regarding the retainer agreement.

[21] Retainer Payment (Refusals #2-3) – The Plaintiffs request whether Maniaci received a retainer cheque from Pensio. I am satisfied that this information is subject to solicitor-client privilege. The Plaintiffs have withdrawn their request for the relevant pages from Maniaci's trust account or bank statements that would demonstrate when he received any retainer cheque.

[22] Involvement in RIP Deals (Refusal #8) – The Plaintiffs request whether Maniaci was involved in any deals where the RIP was sold and funded. Pensio objects on the basis of solicitor-client privilege. The Plaintiffs have agreed to address any issues regarding this request at trial.

Examination of John Hamilton

[23] There are approximately 66 questions at issue from Hamilton's examination on June 14, 2022. Hamilton is the managing principal of Pensio.

[24] Disparagement (Undertaking #2) – To the extent to which he has not already done so, Hamilton shall provide the names of any persons who told Hamilton that Di Nicola disparaged the Pensio Defendants and what those persons allege that Di Nicola said. This shall be done within 30 days.

[25] Supporting Evidence and Documents (Undertaking #4) – To the extent to which he has not already done so, Hamilton shall identify the relevant documents which he says have been produced in support of paragraphs 52(c)-(d), paragraphs 54(a)-(e) and paragraphs 55(a)-(b) of the Statement of Defence and Counterclaim, including where they are located in the Defendants' Affidavits of Documents and if they have not been produced to produce them. This shall be done within 30 days.

[26] Hamilton's Compensation (Under Advisement #1, Refusal #6) – The Plaintiffs request how much Hamilton's compensation was as a consultant for Pensio Property. In my view, Hamilton's compensation is relevant to the extent to which he received specific compensation on a project by project or retainer by retainer basis such that he received compensation for Pensio Property's retainer by the Plaintiffs, such as a commission or any portion of the $1,000,000 paid by the Plaintiffs, $33,000 of which was paid to Pensio Property. The Pensio Defendants shall advise how Hamilton was compensated and if he received compensation specifically for his work for the Plaintiffs, and if so, the terms and how much, within 30 days.

[27] Hamilton's Duties (Under Advisement #2) – The Plaintiffs request what duties Hamilton had while representing Pensio Property. The Pensio Defendants claim that this question was answered at discovery and the balance is not relevant. In my view, the entire question is basic relevant information regarding what the parties did in their respective roles and positions. To the extent to which this question has not been answered the Pensio Defendants shall answer it within 30 days.

[28] Hamilton's Experience/Business Cards (Under Advisements #3 and #6) – The Plaintiffs request what experience Hamilton had with respect to real estate investments after the year 2000. I reject the Pensio Defendants' refusal to answer on the basis of relevance, confidentiality and proportionality. Hamilton's experience is relevant to the Plaintiffs' allegations including misrepresentations and there no basis to claim confidentiality or that providing this information engages proportionality. The Plaintiffs also request whether Hamilton used business cards or any other form of advertising indicating what his relationship was between 2018-present. The Pensio Defendants refuse on the same basis. I reach the same conclusion as with Hamilton's experience. All of this information shall be produced within 30 days.

[29] Addresses for Citadell and Rentalis (Under Advisements #8-9) – The Plaintiffs advise that addresses for the Defendants Citadell and Rentalis are not on their websites. The Pensio Defendants have agreed to make best efforts to obtain and produce the addresses. They shall do so within 30 days.

[30] Affidavit of Documents and Correspondence (Under Advisements #10, #13-15) – The Plaintiffs request a sworn affidavit of documents for Hamilton together with all emails between Hamilton and Milankov and Hamilton and Mercantel regarding the Mapleview Project and any text messages Hamilton sent to or received from the Plaintiffs, Maniaci, Keks, Milankov or Mercantel from 2018-2019. The Pensio Defendants state that all relevant documents have been produced. I am satisfied that the Pensio Defendants have confirmed for the court that there are no further documents to produce. I also note that they are not required to produce all texts as requested as texts between Hamilton and Maniaci may be subject to solicitor-client privilege. Further, the parties should resolve all issues regarding the Pensio Defendants' affidavits of documents after the sworn versions are produced as agreed.

[31] Correspondence with Citadell and Rentalis and Transfer of Funds (Under Advisements #16-17) – The Plaintiffs request that Hamilton and Pensio produce any documents which were created, sent, received or signed between Pensio Property and Citdadell or Rentalis regarding the $967,000 transfer from Pensio Property to Citadell. There is no basis for Hamilton's and Pensio's refusal to produce these documents on the basis of relevance or proportionality. Similarly, there is no basis for their refusal to advise why Pensio Property transferred $967,000 to Citadell. These documents and information are central to the Plaintiff's allegations and claims regarding the use and transfer of the Program Fee and Pensio shall produce any documents and answer these questions within 30 days.

[32] Joint Venture Agreement (Under Advisement #18) – The Plaintiffs request whether a joinr venture agreement was being worked on and to produce the agreement if one exists. The Pensio Defendants advise that they have been unable to locate a joint venture agreement. In order to complete their response, they shall also advise if they have been able to locate any other documents which indicate if a joint venture agreement was being worked on and advise regarding their inquiries within 30 days.

[33] Contact Information for Kristen Young (Under Advisement #19) – The Pensio Defendants have agreed to ask Hamilton for contact information for Kirsten Young who signed the Listing and Sales Agreement between EHC and Pensio Real Estate. They shall do so and advise within 30 days.

[34] Ownership of the Property (Under Advisement #20) – The Plaintiffs request that Hamilton advise when he first learned that EHC did not own the Property. Pensio advised that all relevant documents have been produced. This does not answer the question. In order to complete their answer, Hamilton shall advise within 30 days when he first learned that EHC did not own the Property.

[35] Authorization and Direction (Under Advisement #22) – The Plaintiffs ask whether Hamilton saw any documents from Citadell or Rentalis when he signed the Authorization and Direction for the transfer of $967,000 which indicated why they were receiving the funds. It appears that this question may have been answered however, counsel shall discuss and confirm that it has.

[36] HST (Under Advisement #23) – Pensio Property has confirmed that there is no invoice for any services provided with respect to the Program Fee and therefore no HST was charged. No further efforts are required.

[37] Costs (Under Advisement #26) – Pensio has confirmed that they have produced all relevant documents regarding the costs which Pensio Property incurred with respect to the Mapleview Project. Pensio advised that most of the costs are staff time and that a quantity will be provided before the pre-trial in expert reports. To complete this answer, Pensio shall identify the relevant documents in its productions or otherwise within 30 days.

[38] Financial Statements (Under Advisement #27) – The Plaintiffs request the financial statements for Pensio Property and Pensio Real Estate from 2016-present. I am satisfied that financial statements limited to 2018-2022 are relevant to the damages and amounts claimed by the Plaintiffs and how the Program Fee was treated. Pensio shall produce them within 30 days.

[39] Tax Returns (Under Advisement #28) – The Plaintiffs request the tax returns for Pensio Property and Pensio Real Estate from 2018-2022. These are relevant as probative of the amounts claimed by the Plaintiffs and how the Program Fee was used or treated and Pensio shall produce them within 30 days.

[40] Licenses/Memberships (Refusals #1-2) – The Plaintiffs request whether Hamilton has any licenses from any professions and if he has been a member of any organizations since 2000 which have a code of conduct he is required to comply with. These questions are relevant and Hamilton shall answer them within 30 days.

[41] Ownership (Refusals #3, 4 and 5) – The Plaintiffs request who in Hamilton's family has an ownership interest in Pensio Property, a copy of the Pensio Property Minute Book and request who the shareholders of Pensio Property were between 2018 and June 14, 2022. Based on the pleadings and the record I conclude that this request is overbroad, particularly for the Minute Book and names of all shareholders. Counsel may discuss an information request which is narrower and probative of the issues in this litigation.

[42] Termination of Consulting Arrangement (Refusal #7) – Pensio has confirmed that Hamilton's consulting arrangement has not been terminated. This is a complete response.

[43] Signing of Documents (Refusal #8) – The Plaintiffs ask whether Hamilton signed documents on behalf of Pensio Property from 2018 to the present. Contrary to Pensio's submissions, whether Pensio had signing authority and was held out as a representative of Pensio Property is relevant to the Plaintiffs' claims including misrepresentation. This question shall be answered within 30 days.

[44] Number of Employees (Refusals #9-10) – The Plaintiffs ask how many employees Pensio Property had in 2018 and how many it has now. Pensio refuses however, these questions are basic information and relevant to the Plaintiffs' allegation that Pensio Property was not a real company and may have had zero employees. Pensio shall answer this question within 30 days.

[45] Relationship With Pensio Real Estate (Refusals #12-13) – Pensio has agreed to answer what relationship Hamilton had with Pensio Real Estate and if he had authority to sign documents on behalf of Pensio Real Estate. They shall answer within 30 days.

[46] Citadell's Assets (Refusal #14) – The Plaintiffs have requested the size of Citadell and whether it had assets under its control or its sales. I disagree with the Pensio Defendants that this is not relevant or that it is disproportionate. Citadell is a Defendant and the Plaintiff alleges that it was involved in a conspiracy. Therefore, whether it had assets or conducted business is relevant as basic information and specific to this allegation. The Pensio Defendants shall answer this within 30 days.

[47] Communications with Marcantel (Refusal #15) – The Plaintiffs request that Hamilton advise if he has communicated with Marcantel with respect to the issues in this litigation. The Pensio Defendants assert litigation/common interest privilege.

[48] Litigation privilege is a class privilege intended to provide parties with a "zone of privacy" which requires the party asserting privilege to establish that that document or communication was created for the dominant purpose of litigation and the litigation in question or related litigation is pending or may reasonably be apprehended (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 33; Blank at para. 59). Common interest privilege depends on the existence of an underlying privilege being made out, and provides a basis under which the otherwise privileged document can be shared with certain third parties without constituting a waiver of privilege (Barclays Bank PLC v. Metcalfe and Mansfield, 2010 ONSC 5519 at para. 11).

[49] Given that this question does not specify a time period I conclude that the Plaintiffs are asking about communications which took place after the litigation commenced. Accordingly, discussions after the litigation was commenced about the issues in the litigation would in my view be for the dominant purpose of litigation and therefore, subject to litigation privilege. The Pensio Defendants are not required to answer this question.

[50] Emails (Refusals #16 and #18) – The Plaintiffs have withdrawn their questions regarding emails and text messages between Hamilton and other Defendants, including Maniaci.

[51] Return of Program Fee (Refusals #17 and #19) – The Plaintiffs request all emails between Hamilton and Keks involving the Mapleview Project from 2018 to the present and whether Hamilton spoke to anyone else at Citadell about returning the $967,000 payment. The Pensio Defendants refuse on the basis of relevance, litigation and common interest privilege, confidentiality and proportionality. This information is relevant to the Plaintiffs' claims. As common interest privilege depends on litigation privilege, the analysis necessarily must focus on litigation privilege. The Pensio Defendants submit that litigation privilege is validly asserted over all of the requested correspondence and communications regardless of when they took place. Specifically, they assert that any discussions about returning the $967,000 means that litigation was reasonably contemplated and the dominant purpose of the communications. The Plaintiffs argue that litigation privilege could only apply as of the commencement of this action on November 17, 2020, including because the parties discussed other projects well into 2020. I disagree with all of these submissions. Just because the return of the Program Fee might have been discussed does not automatically satisfy the test for litigation privilege. At the same time, the test is not met only because litigation was commenced. In my view, June 30, 2019, the first date on which Di Nicola requested the return of the Program Fee is material to the analysis. There does not appear to be any dispute that Di Nicola first requested the return of the Program Fee on or around this date and during the Summer of 2019. It also appears that he made additional requests in 2020. Based on the record and the parties' submissions, I am satisfied in the circumstances that any communications after December 31, 2019 are subject to litigation privilege and do not have to be produced. Therefore, the Pensio Defendants shall produce any emails between Hamilton and Keks regarding the Mapleview Project sent and received on or before December 31, 2019. Further, Hamilton shall advise if he spoke to anyone else at Citadell on or before December 31, 2019 about returning the Program Fee. All this shall be answered within 30 days.

[52] Use of the Program Fee (Refusals #20-21) – The Plaintiffs request what Marcantel told Hamilton about what Citadell had done with the $967,000 payment and if Hamilton had any text messages with Mercantel or anyone from Citadell regarding the return of the Program Fee. Contrary to Pensio's submissions, this information is central to the Plaintiffs' claims. The Pensio Defendants assert litigation and common interest privilege. For the same reasons set out above, the Pensio Defendants shall advise what Marcantel told Hamilton about what Citadell had done with the $967,000 payment to the extent Marcantel told him on or before December 31, 2019. Further, they shall produce any text messages sent on or before December 31, 2019 between Hamilton and Mercantel or anyone from Citadell regarding the return of the Program Fee. They shall do so within 30 days.

[53] Retainer Agreement (Refusals #22, 23 and 24) – The Plaintiffs request whether Hamilton signed a retainer agreement with Maniaci on behalf of Pensio Property, and if not, who did and how it was received. Similar to my conclusions above, I agree with Pensio that these questions with respect to Pensio Property's arrangements and communications with Maniaci are subject to solicitor-client privilege and do not have to be answered.

[54] HST Returns (Refusal #25) – The Plaintiffs request Pensio Property's HST returns from November 2018 to December 2019. This request is already covered by the production of tax returns in Under Advisement #28. It also appears from Under Advisement #23 that no HST was charged in any event. No further steps are required.

[55] Financial Statements (Refusal #26) – The Plaintiffs request financial statements for Pensio Property for 2018 and 2019. I disagree with Pensio that these are not relevant. They are probative of how the Program Fee was used and treated and shall be produced within 30 days.

[56] Partial Fee (Refusal #27) – Pensio advises that Hamilton answered on discovery whether he believes that the $967,000 payment was a partial fee generated by Pensio Property. Counsel shall discuss and confirm whether this has been answered.

[57] Payment of Program Fee (Refusal #28) – The parties have confirmed that MGI paid $1,000,000 and Maniaci paid $967,000 to Rentallis and $33,000 to Pensio Property. This question is answered.

[58] Hamilton's Instructions (Refusal #29) – The Plaintiffs request Hamilton's instructions to Maniaci regarding the payment of the Program Fee into his trust account. I am satisfied that Hamilton's instructions are subject to solicitor-client privilege and that this does not need to be answered.

[59] HBCZ (Refusals #30-31) – The Plaintiffs have withdrawn their requests regarding Pensio's arrangements with HBCZ, HBCZ's losses and whether HBCZ has commenced litigation.

[60] Account/Trust Statement (Refusals #32-33) – The Plaintiffs request whether Hamilton ever saw or received an account or trust statement from Maniaci including any account with respect to the Program Fee and the $33,000 referred to in the Direction. Pensio asserts solicitor-client privilege, however, it is not known if these documents exist, The first step is for Maniaci and Pensio to determine if there are any relevant documents which refer to the Program Fee paid by the Plaintiffs and if so, to identify them so that it is understood what, if anything, privilege is being asserted over.

[61] Advice to Di Nicola (Refusal #34) – The Plaintiffs ask whether Hamilton ever advised Di Nicola after the $967,000 payment left Maniaci's account. It appears that the answer to this question is that Hamilton was not required to do so because Di Nicola had signed the Direction. This question is relevant and Pensio shall confirm their answer within 30 days.

[62] Documents Re: Property Purchase (Refusals #35-36) – The Plaintiffs request whether there are any emails from Pensio Property requesting that Maniaci assist EHC in completing the Agreement of Purchase and Sale with respect to the Property, including correspondence copying any other party. I am satisfied, and the Pensio Defendants agree that any emails with Maniaci which are copied to EHC, Di Nicola or other parties are not subject to solicitor-client privilege. Pensio shall make inquiries and produce any non-privileged emails within 30 days.

[63] Other Clients (Refusal #37) – The Plaintiffs request the names of other Pensio Property clients who purchased Pensio's rental program products. It is not disputed that Pensio Property had other clients or that Di Nicola contacted some of these former clients. In my view, it would be overbroad and unnecessary to require Pensio to provide a list of all customers. Counsel may discuss a narrower request.

[64] Retainer Agreement (Refusal #38) – The Plaintiffs request whether Maniaci had a retainer agreement with respect to the Plaintiffs' purchase of the Property. Maniaci's counsel has agreed to review Maniaci's file and advise, which they shall do within 30 days.

[65] Posting of Program Fee (Refusal #39) – The Plaintiffs request whether the Program Fee was posted in Pensio Property's accounting system as income. Pensio has agreed to answer this question and shall do so within 30 days.

[66] Accounting Records (Refusal #40) – The Plaintiffs request that Pensio provide the relevant accounting records of Pensio Property from 2018 to the present. While this request would inevitably include some relevant documents, it is overbroad, disproportionate, lacks specificity, would include documents which are unnecessary. The Plaintiffs may propose a more reasonable request for accounting records if necessary after the production of all other financial documents is complete. This may be spoken to if the parties cannot otherwise agree on a reasonable production.

[67] Hamilton's Tax Returns (Refusals #41, 43 and 44) – The Plaintiffs have withdrawn their request for Hamilton's personal tax returns.

[68] Bank Statements (Refusal #42) – The Plaintiffs request bank statements for Pensio Property and Pensio Real Estate from 2016 to the present. This request would include some relevant documents, however, it is overbroad, disproportionate and would include records that are not relevant or necessary to produce. Among other things, the time period is too broad, and it is not necessary to produce 9 years of bank records to properly address the production requirements of this action. This refusal is upheld, however, the Plaintiffs may propose a much more limited request dealing with the specific amounts during the specific time period at issue which counsel shall discuss.

Examination of Brandon Keks

[69] There are approximately 19 refusals at issue from the examination of the Defendant Brandon Keks ("Keks"). He is an officer and director of Pensio and was examined on June 14, 2022.

[70] Meetings With Di Nicola and Maniaci (Under Advisement #3) – The Plaintiffs request that Keks review his emails and records and advise regarding how many meetings he had with Di Nicola and Maniaci and if something relevant to this action was discussed to advise regarding his recollection. Keks has advised that he has reviewed his records and has nothing further to advise. No further efforts are required.

[71] Relationship With Citadell and Rentalis (Under Advisement #4) – The Plaintiffs request that Keks produce any documents which verify that he has an ongoing relationship with Citadell and Rentalis. He has confirmed that he has produced all relevant records, therefore, the only remaining step is for the Pensio Defendants to identify the documents which have been produced. This shall be done within 30 days.

[72] $33,000 Payment (Under Advisement #5) – The Plaintiffs request confirmation whether Pensio received any of the $33,000 remaining in Maniaci's trust account and if so how much and to produce any related documents. It appears that this question has been answered and that the Pensio Defendants have confirmed in other materials and submissions regarding how and how much of the Program Fee was distributed. They have also confirmed that all relevant documents have been produced. To the extent to which any information requires clarification, counsel shall discuss.

[73] Defamation (Under Advisement #7) – The Plaintiffs request that Keks use reasonable efforts to provide specifics about the defamation he alleges that he heard from Jaegap Chung, Ralph Rossdeutscher and Jameel Madhani. Keks has confirmed that he has no further information to provide and no additional documents or correspondence to produce. No further efforts are required.

[74] Emails and Texts (Refusals #2-3) – The Plaintiffs request that Keks produce any relevant texts and emails with any other of the Pensio Defendants. The Pensio Defendants have confirmed that to the extent to which they have not already been produced all relevant texts and emails will be identified in their sworn affidavits of documents. This is a sufficient response.

[75] Dealings with Citadell and Rentalis (Refusals #4 and #15) – The Plaintiffs request how many times Keks dealt with and the last time he did business with Citadell and Rentalis. I am satisfied that these questions are relevant to the business relationships and ongoing dealings between these parties. This question shall be answered within 30 days.

[76] Minute Books (Refusal #5) – As set out above, I reject the Plaintiffs' request for any Minute Books. This request is overbroad and unnecessary.

[77] Outlook Calendar (Refusal #6) – After discussions with counsel, the Plaintiffs have confirmed that they are satisfied with Kek's Outlook Calendar entries produced to date which are specific to meetings related to the Mapleview Project.

[78] MarshallZehrs (Refusal #7) – The Plaintiffs request all emails and texts between Pensio representatives and MarshallZehrs regarding the Mapleview Project. Pensio has confirmed that all relevant documents have been produced. No further efforts are required.

[79] Standard Form Agreement (Refusal #9) – Pensio has agreed to advise if their standard form agreement for the RIP has been used in any previous transactions in Ontario which were successfully completed. They shall do so within 30 days.

[80] Office Space (Refusal #10) – The Plaintiffs request whether Pensio has space with a landlord that is not currently being used/occupied. Pensio has confirmed that it has physical office space and shall answer any other part of this question not already answered within 30 days.

[81] Sending of Funds (Refusal #11) – Keks has answered why he would send the funds to Citadell without receiving a signed commitment.

[82] Other Transactions (Refusal #12) – The Plaintiffs have withdrawn their question requesting documents from other transactions with Citadell.

[83] Financial Statements (Refusal #14) – The Plaintiffs' request for Pensio Property's financial statements was previously considered in Hamilton's Refusal #25.

[84] Other Litigation (Refusals #16-17) – The Plaintiffs request whether Rolph Rossdeutscher or Joe Natale are making claims against Pensio and Keks for U.S.$425,000 and CDN$750,000, respectively. After discussions with counsel, the Plaintiffs will conduct a litigation search and ask any follow-up questions.

Examination of Joe Marcantel

[85] Marcantel is a manager of Citadell and was examined on June 14, 2022. There are approximately 19 questions in dispute from his examination.

[86] Licenses (Under Advisement #1) – The Plaintiffs request copies of any of Mercantel's licenses. He has confirmed that he has no copies to produce. No further steps are required.

[87] Bond (Under Advisements #6-7) – The Plaintiffs request a copy of the draft bond created by Citadell or Rentalis, who drafted it and when it was sent to someone. Citadell has advised that no bond was drafted, though based on counsel's submissions and discussions Citadell shall confirm within 30 days.

[88] Correspondence with Citadell and Rentalis (Under Advisement #8) – Pensio has confirmed that any relevant correspondence between Marcantel, Citadell, Rentalis and anyone else at Pensio have either been produced or will be produced with their sworn affidavits of documents. No further steps are required.

[89] Invoice (Under Advisement #9) – The Plaintiffs request whether Citadell rendered an invoice for the $967,000 payment or any amount of the funds received. Citadell has agreed to review its records and confirm if an invoice was created or rendered. Citadell shall advise within 30 days.

[90] Rentalis Bank Records (Under Advisement #11) – The Plaintiffs request bank records and other documents regarding amounts paid by Rentalis to reinsure a potential bond. Citadell has provided documentation including copies of invoices and confirmed that all available documents have been produced. No further efforts are required.

[91] Correspondence (Under Advisement #12) – The Plaintiffs request that Citadell produce any texts or emails involving Marcantel with any Pensio representatives regarding the $967,000 payment. Citadell advises that all relevant documentation has been produced, or will be addressed in its sworn affidavit of documents but has agreed to review the record and affidavits of documents and advise where any correspondence is located. This is a sufficient response.

[92] Managing Members (Refusal #2) – The Plaintiffs request that Citadell advise if Marcantel, Jeff Schaff and Nantalie Lucia are the only shareholders of Citadell. Marcantel confirmed that Citeadell is an LLC, has no shareholders and Mr. Schaff and Ms. Lucia are managing members but he is not. In order to complete this answer, Citadell shall advise within 30 days if there are any other managing members.

[93] Bank Statements (Refusal #9) – The Plaintiffs have withdrawn their request for Rentalis' bank statements with respect to the receipt of the Program Fee.

[94] Code of Ethics (Refusal #11) – The Plaintiffs request a copy of the code of ethics that would have been binding on Marcantel, Citadell and Rentalis. Marcantel deposed that he followed a code of ethics with respect to handling trust funds, however, it has since been confirmed that there were no company codes of ethics. Therefore, Marcantel shall advise and confirm what code of ethics he was referring to, if any, within 30 days.

[95] Classification of Payment (Refusal #13) – Marcantel has confirmed that the $967,000 payment would have been classified by Rentalis as income. This is a complete response.

[96] Financial Statements (Refusal #14) – The Plaintiffs request Rentalis' financial statements from November 2018 to June 14, 2022. The Pensio Defendants refuse on the basis of relevance and proportionality. In my view, this request is overbroad and unnecessary. Given the circumstances, the record and the fact that it has already been confirmed how Rentalis treated the $967,000, a narrower production is called for. The Plaintiffs may propose a narrower request for financial statements and counsel shall discuss.

[97] Reporting of Income (Refusal #16) – Rentalis has agreed to advise if it reported the $967,000 as income to the federal government. It shall do so within 30 days.

[98] Financial Statements and Tax Returns (Refusal #17) – The Plaintiffs requested copies of financial statements and tax returns for Rentalis to show how the $967,000 was treated and reported to the government. The answer to this refusal is dependent on Refusals #14 and #16. Counsel shall discuss all of these refusals.

[99] Statement of Defence and Counterclaim (Refusal #18) – The Plaintiffs have withdrawn their question regarding Marcantel's views on the Statement of Defence and Counterclaim.

[100] Bond (Refusals #19-20) – The Plaintiffs request who was involved in preparing the draft bond and if Marcantel received any funds with respect to Joe Natalia. Questions regarding the bond are subject to the responses to Under Advisements #6-7 above. Marcantel has confirmed that he does not recognize the name Joe Natalia.

[101] Experts (Refusal #21) – The Plaintiffs have withdrawn their request regarding undertakings and refusals for any experts.

Examination of Dimitris Milankov

[102] Dimitris Milankov ("Milankov") is an officer and director of Pensio and was examined on June 15, 2022. There are approximately 4 refusals at issue from his examination.

[103] Rental Insurance (Under Advisement #2) – The Plaintiffs request that Mr. Milankov provide the details if he was involved in selling rental insurance or insurance bonds prior to joining Pensio Property. He has advised that he did not sell insurance bonds, however, it is not clear if he means generally or with respect to the Mapleview Project. Mr. Milankov shall confirm if he did so prior to his tenure at Pensio Property within 30 days.

[104] Retainer Agreement (Refusal #1) – The Plaintiffs request whether Milankov signed a retainer agreement with Maniaci on behalf of Pensio Property. As set out above, I have determined that communications between Pensio and Maniaci regarding their retainer agreement are subject to solicitor-client privilege and do not need to be answered.

[105] Same Undertakings and Refusals (Refusal #2) – The Plaintiffs have withdrawn their request that Milankov answer all of the same undertakings and refusals as other witnesses with respect to the Counterclaim.

The Pensio Defendants' Motion

[106] Di Nicola was examined on his own behalf and on behalf of the Plaintiffs on June 16, 2022. There are approximately 33 questions at issue including 18 undertakings and 15 refusals at issue. Although some of the questions are listed as undertakings, there is a dispute whether some were undertakings or under advisements. This does not change the determinations, agreements and directions set out below.

[107] Profitability (Undertaking #20) – The Pensio Defendants request how much profit the Plaintiffs would have made on the Mapleview Project had the site servicing contract been completed. The Plaintiffs have advised that they are unable to determine this amount. In any event as the Plaintiffs are not claiming lost profits this question is not relevant and no further efforts are required.

[108] Outlook Entries (Undertaking #21) – The Plaintiffs have confirmed that they were unable to locate any relevant entries in Di Nicola's Outlook. This undertaking is answered.

[109] Documents (Undertaking #27) – The Pensio Defendants request that the Plaintiffs produce any relevant documents which were withheld from production including internal documents and handwritten notes. The Plaintiffs have confirmed that all relevant documents have been produced. No further efforts are required.

[110] Lawyer (Undertaking #28) – The parties agree that the Plaintiffs have answered the question regarding the reference to "our lawyer".

[111] Evidence Re: Fraud, Unjust Enrichment, Conspiracy and Punitive Damages (Undertakings #32-34 and #45) – The Pensio Defendants request all evidence and particulars regarding the Plaintiffs' allegations of fraud, unjust enrichment and punitive and exemplary damages. The Plaintiffs have advised and confirmed that they have no further documents or particulars to produce. These questions are answered.

[112] Deposit of Trust Funds (Undertaking #36) – The Pensio Defendants request the particulars and evidence of the Plaintiffs' allegations pleaded at paragraph 21 of the Statement of Claim regarding the deposit of the Trust Funds. The Plaintiffs have advised that they will identify the documents already produced and may have further documents to produce. The Plaintiffs shall do so within 30 days.

[113] Trust Funds (Undertaking #37) – The parties agree that the Plaintiffs have provided the particulars requested regarding paragraph 22 of the Statement of Claim with respect to the holding of the Trust Funds.

[114] Written Communications With Maniaci (Undertakings #47, #55 and #58) – The Pensio Defendants request that the Plaintiffs produce any emails, SMS messages or other written communications with Maniaci. The Plaintiffs have confirmed that all written communications with Maniaci have been produced. No further efforts are required.

[115] Partner/Shareholder (Undertaking #51) – The Plaintiffs have agreed to provide the full name and contact information for "Danny" who is a partner/shareholder of EHC and MGI. The Plaintiffs shall provide this information within 30 days.

[116] Meetings and Calls (Undertakings #54, #56-57) – The Plaintiffs previously advised and confirmed that Di Nicola cannot recall the dates of his first meeting and call with Maniaci and all meetings with Hamilton. No further efforts are required.

[117] Emails and SMS (Under Advisements #2-3) – The Pensio Defendants requested all emails and texts between Danny, Leti and Di Nicola regarding the Mapleview Project. The Plaintiffs have confirmed that to the extent to which there are any emails and SMS messages they have been produced. No further efforts are required.

[118] Allegations Re: Pensio Real Estate (Under Advisement #6/Refusal #14) – The Pensio Defendants request that the Plaintiffs clarify their allegations as against Pensio Real Estate and advise regarding the full extent of Pensio Real Estate's involvement in this action. The Plaintiffs shall do so within 30 days.

[119] Plaintiffs' Funds (Under Advisement #11/Refusal #21) – The Pensio Defendants request whether the Plaintiffs were able to come up with the $1.78 million fee plus HST by November 20, 2018. The Plaintiffs have advised that they had the funds. To the extent they have not done so, the Plaintiffs shall identify or provide any documents in support of this answer within 30 days.

[120] Contact Information (Refusal #8) – The Plaintiffs have agreed to provide the names and contact information of any additional individuals who may have information regarding the matters at issue. The Plaintiffs shall provide this information within 30 days.

[121] Correspondence (Refusal #11) – The Plaintiffs have confirmed that all texts and emails with Pensio have been produced. No further steps are required.

[122] RIPA Terms (Refusal #19) – The Pensio Defendants requested what terms of the RIPA which the Plaintiffs believed were conditional. The Plaintiffs shall provide their legal position within 30 days.

[123] EHC and MGI Projects (Refusals #28-29) – The Pensio Defendants request details of all projects EHC has been and is involved with and all of MGI's site servicing and excavation projects from 2018 to June 16, 2022. This request is overbroad, unnecessary and disproportionate. Not all of this information is relevant to the matters at issue in the litigation including the Counterclaim which is for defamation and lost profits. Further, all of this information is not required with respect to the Pensio Defendants' allegations that the Plaintiffs would not have been able to develop the Mapleview Project. While some information regarding EHC's history and projects, to the extent not already produced, may be relevant, it is much narrower than this request. Counsel may discuss a narrower production.

[124] Comments Re: Pensio (Refusal #33, 34, 35) – The Pensio Defendants request the particulars of what Di Nicola said regarding Pensio or any of its officers or directors to Jameel Madhani, Jaegap Chung and Ralph Rossdeutscher. Di Ncola has advised that he does not recall. This is a sufficient response. Counsel shall discuss the Pensio Defendants' requests regarding whether Di Nicola was aware that these 3 individuals had ongoing business deals with Pensio or if Di Nicola told any of these 3 individuals that any of Pensio's directors or officers were "liars".

[125] Financing of Project (Refusal #39) – The Plaintiffs have agreed that a financing issue caused the deal for the Mapleview Project to collapse. The Plaintiffs shall confirm if it was financing from MarshallZehr and advise within 30 days.

[126] Pensio Obligations (Refusal #41) – The Plaintiffs have agreed, to the extent to which it is not answered by Undertaking #37, to advise if the RIPA was the only obligation of Pensio.

III. Order and Costs

[127] The parties shall attempt to resolve the costs of these motions including discussing whether costs should be in the cause. If the parties cannot agree, they may file written costs submissions not to exceed five pages (excluding Costs Outlines) with me on a timetable to be agreed upon by counsel. Counsel may schedule a telephone case conference with me to speak to any issues.

Associate Justice McGraw

Date: November 10, 2025