Endorsement

Overview

The defendants Gamma Windows and Walls International Inc., Gamma North America, Inc., Gamma North Corporation, Gamma Installations, Inc., and China State Construction Development Holdings Limited (collectively, the “Gamma defendants”), seek to quash the summons to witness served on Harry Wang in relation to a pending jurisdiction motion brought by Gamma North America, Gamma North, Gamma Installations, and China State (collectively, the “Gamma foreign defendants”).

The Gamma defendants say: (i) the scope of the proposed examination of Mr. Wang is overly broad and goes beyond the issues in the jurisdiction motion; (ii) the plaintiffs are attempting to obtain evidence in relation to the merits of the action; (iii) Mr. Wang’s examination would not yield any evidence relevant to the jurisdiction motion that has not already been adduced by the representatives of the Gamma foreign defendants or could not be obtained through their cross-examination; and (iv) the summons to witness constitutes an abuse of process.

Mr. Wang is a resident of Ontario. The record before me discloses that Mr. Wang is an Executive Director and board member of China State and a director of China State’s “subsidiaries.” As of September 2015, Mr. Wang was “reallocated to North America taking charge of North America business.” There is evidence that during the relevant period of the construction project underlying this action, representatives of the Gamma defendants described Mr. Wang as having decision-making authority with respect to the project. The plaintiffs say that Mr. Wang has evidence that “goes directly” to the issue of whether the Gamma foreign defendants do business in Ontario and that the plaintiffs are therefore entitled to examine Mr. Wang in relation to the jurisdiction motion.

For the following reasons, I agree that the plaintiffs are entitled to examine Mr. Wang under r. 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in relation to the jurisdiction motion. The Gamma defendants’ motion to quash the summons is dismissed.

The Action and the Jurisdiction Motion

The action arises from a project for the construction of a high-rise residential apartment building located at 180 Metcalfe Street, Ottawa. In 2018, the plaintiff Construction Jadco Inc., as construction manager for the project, issued a request for proposals for the supply and installation of the curtainwall system at the project.

The plaintiffs plead that on August 14, 2019, the Gamma defendants delivered a quote in respect of the project in which Gamma Windows and Walls, Gamma North America, Gamma North, Gamma Installations, and Gamma FE Aluminum Hong Kong were referenced interchangeably. It is alleged that on October 23, 2019, Jadco entered a trade contract with “Gamma” for the supply and installation of the curtainwall system at the project. The contract included the quote as a contract document.

A dispute arose from the project. The plaintiffs claim for breach of contract, negligence, and negligent misrepresentation against the Gamma defendants.

Gamma Windows and Walls has delivered a defence and counterclaim. The Gamma foreign defendants have served a motion challenging the court’s jurisdiction on the basis that there is no real and substantial connection to Ontario. In support of their jurisdiction motion, the Gamma foreign defendants have served the affidavits of Robert Sarfo, Vice President (Project Management and Contracts) of Gamma Windows and Walls, Guo Chen, officer and/or director of Gamma North America, Gamma North, and Gamma Installations, and Man Cheung Wong, Executive Director and Chief Financial Officer of China State.

Mr. Wang

In response to the motion to quash the summons, the plaintiffs have filed the affidavit of Carole Doudak, Vice President of Jadco and director of the plaintiff 10701572 Canada Inc. Ms. Doudak has been involved in the project during the relevant period. She states that there were “numerous instances where Gamma’s Project personnel” could not make decisions because they required China State’s approval. Ms. Doudak understood that, in most cases, China State’s authority in respect of the project was represented by Harry Wang. According to Mr. Wang’s online profile, at the time of the project, he was on the board of directors of China State as “Executive Director, Senior Vice President.” China State’s board of directors’ webpage states that Mr. Wang was appointed as an Executive Director on August 15, 2012, “is also a director of [China State’s] subsidiaries, and ceased to be Associate Chief Executive Officer in September 2015 when he was “reallocated to North America taking charge of North America business.”

According to a corporate profile report for Gamma Windows and Walls, Mr. Wang is a director of that company. China State’s 2022 Annual Report confirms that Mr. Wang is an Executive Director.

The Summons to Witness

Before serving the summons to witness, the plaintiffs wrote to the Gamma foreign defendants to explain the plaintiffs’ position that Mr. Wang has evidence relevant to the jurisdiction motion:

Given Mr. Wang’s position with Gamma Windows and Walls and [China State], Mr. Wang has information relevant to the Motion concerning the relationship between Gamma and the Foreign Defendants as it relates to the Project, the Foreign Defendants’ involvement in any contract related to the Project, and any acts or omissions committed by the Foreign Defendants in Ontario in relation to the Project.

The plaintiffs served the summons to Mr. Wang on May 23, 2024. The summons seeks to have Mr. Wang produce at the examination records related to:

• his employment with China State and any wholly-owned or majority-owned subsidiaries;
• communications between Mr. Wang and China State in respect of the project;
• financial statements or accounting records of China State which refer to the project;
• records of decisions made by Mr. Wang in respect of the project;
• notes from meetings attended by Mr. Wang and any communications with employees, officers or directors of the Gamma defendants in respect of the project, including supply chain issues, acceleration measures, and financial matters; and
• all documents, recordings, video recordings, and photographs related to any of the above.

Examinations under r. 39.03

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), para 30.

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, paras 16-18; Pixiu Solutions Inc. v. Canadian General-Tower Ltd. et al, 2016 ONSC 906, para 19; Derenzis v. Scoburgh, 2021 ONSC 3286, paras 42, 43. As Sharpe J.A., writing for the majority in Payne v. Ontario Human Rights Commission, para 170, explained, to impose a heavy onus would not only be inconsistent with Canada Metal Co. v. Heap (1975) 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.

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, paras 61-68, and adopted in PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857 (Div. Ct.), para 15:

• 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. [^1]

The Plaintiffs Have Satisfied the “Relevancy and Evidentiary Screening” and Mr. Wang’s Proposed Examination Is Not an Abuse of Process

The plaintiffs have shown that Mr. Wang is in a position to provide evidence about an issue relevant to the pending jurisdiction motion. The Gamma foreign defendants have not demonstrated that the proposed examination of Mr. Wang would be an abuse of process.

The extent to which the Gamma foreign defendants carry on business in Ontario is an issue on the jurisdiction motion. [^2] Based on the affidavit evidence, it appears that Mr. Wang is a “common thread” or intermediary between the Gamma defendants: he is a resident of Ontario, a director of Gamma Windows and Walls, an Executive Director and board member of China State, a director of China State’s subsidiaries and, as of September 2015, is in charge of the “North America business.”

There is evidence that representatives of the Gamma defendants described Mr. Wang as having decision-making authority with respect to the project, and that project personnel required China State’s approval on certain aspects of the project. The evidence suggests that Mr. Wang has knowledge of the executive level decisions and reporting made through the Gamma defendants. The low threshold has been met: Mr. Wang appears to have evidence that may be relevant to whether the Gamma foreign defendants carry on business in Ontario.

The Gamma defendants argue that a “plain reading” of the summons confirms the plaintiffs intend to examine Mr. Wang on issues that are irrelevant to the jurisdiction motion because the summons does not contain any particulars regarding the scope of the intended examination, and the plaintiffs’ request for documents is too broad.

I disagree. First, read in context with the letter sent by plaintiffs’ counsel prior to service of the summons, the scope of Mr. Wang’s proposed examination is properly restricted to issues raised on the jurisdiction motion. The plaintiffs explained in counsel’s letter: “Given Mr. Wang’s position with Gamma Windows and Walls and [China State] Mr. Wang has information relevant to the [jurisdiction] Motion concerning the relationship between Gamma and the Foreign Defendants as it relates to the Project, the Foreign Defendants’ involvement in any contract related to the Project, and any acts or omissions committed by the Foreign Defendants in Ontario in relation to the Project.” Counsel’s letter informs the scope of Mr. Wang’s examination and restricts it to matters relevant to the jurisdiction motion.

Second, the Gamma defendants contend that even if the information sought on the examination is relevant to the jurisdiction motion, the proposed examination is an abuse of process because the plaintiffs “are using the examination as a fishing expedition to obtain evidence relevant to the merits in the Action.” I agree with the plaintiffs that denying a party the opportunity to examine a witness through a summons for the sole reason that some evidence related to the underlying action may emerge is not a valid reason to quash the summons; this, by itself, does not render the examination a fishing expedition or an abuse of process.

Third, the plaintiffs’ request for production of documents as set out in the summons is not overly broad, nor does it “confirm that the intended scope of examination exceeds the Jurisdiction Motion.” In Seelster Farms Inc. v. Ontario, 2017 ONSC 4756, para 45, Emery J. confirmed that parties responding to a summary judgment motion have “full recourse to all means available under the Rules of Civil Procedure to seek relevant documents that would enable them to put their best foot forward.” In my view, the approach endorsed by Emery J. in Seelster has equal application here where the underlying motion is a jurisdiction motion. In Research in Motion Ltd. v. Vista Corp., para 75, the court explained that in a motion under r. 17.02 challenging the jurisdiction of the Ontario court, “a discussion of the factors in the real and substantial connection test necessitates the involvement of both parties, each of whom must present their best case.”

Relying on Derenzis, 2021 ONSC 3286, paras 48-50, and Lauzon v. Axa Insurance (Canada), 2012 ONSC 6730, paras 27 and 35, the Gamma defendants argue that an examination under r. 39.03 should only be allowed where “the examination will be limited to issues that would produce relevant evidence that is necessary to ensure a fair consideration of the motion.” In Lauzon, Glithero J. stated that “[t]he evidentiary base must demonstrate that the examination is likely to produce evidence which enhances the record to be considered on the return of the motion” [my emphasis] and concluded that evidence of the proposed witness was unnecessary because the plaintiff could get the information sought from its own appraiser. In this case, the plaintiffs cannot obtain the information they seek from their own witnesses. And, while the affiants who filed evidence on the jurisdiction motion may also have relevant personal knowledge, the plaintiffs are not limited to conducting cross-examinations in presenting their best case in response to the jurisdiction motion; at this stage, it is for the plaintiffs to select the witnesses: Iona Corp. v. Aurora (Town), para 12.

In Derenzis, Chown J. quashed four summonses issued by a non-party under r. 39.03, finding they were an attempt to abuse the court’s process. The underlying motion in that case was brought by the non-party to vary an order made under r. 30.10 requiring it to produce certain records. Justice Chown concluded that the intended examinations would not enhance the record for the underlying motion and that the examinations appeared unnecessary. It is important, however, to consider the examples provided by Chown J. in support of his conclusion:

For example, whether records were transmitted through a portal or by some other method is perhaps going to help assess whether production has been comprehensive, but the question is of trifling relevance to the motion judge. The same is true of questions about how investigators were paid or who within Gore requested the surveillance.

Unlike the underlying motion to vary a production order in Derenzis, the underlying jurisdiction motion has the potential to be dispositive of the action against the Gamma foreign defendants. And, contrary to Chown J.’s conclusions in that case, I have concluded that Mr. Wang is in a position to provide evidence about whether and to what extent the Gamma foreign defendants carry on business in Ontario. Derenzis does not assist the Gamma defendants.

I have reviewed the document requests set out in the summons to witness served on Mr. Wang. The plaintiffs have confirmed they are only seeking documents that are relevant to the presumptive connecting factors. I am satisfied that the document requests are not overly broad for the following reasons.

The first category of documents seeks production of records related to Mr. Wang’s relationship with China State and any wholly-owned or majority-controlled subsidiaries and/or related entities. The Gamma defendants maintain that this request is overly broad: while the plaintiffs rely on Mr. Wang’s involvement in Gamma Windows and Walls and China State in support of the summons, the plaintiffs seek to question Mr. Wang in relation to other entities, rather than the affiants who filed evidence on the jurisdiction motion. The plaintiffs explain that they are seeking records in relation to Mr. Wang’s employment or working relationship in relation to entities such as Gamma North America, Gamma North, and Gamma Installations because China State’s annual report is unclear as to the precise organizational and ownership relationship between China State and other Gamma entities. Mr. Wang is identified as a director of China State’s subsidiaries and he has, since 2015, “tak[en] charge of North America business.” I am satisfied that the requested records may be relevant to the issue of whether the Gamma foreign defendants do business in Ontario. In responding to the jurisdiction motion, the plaintiffs are not limited to conducting cross-examinations.

The second category of documents seeks production of any reports, emails, letters, notes of meetings, and any other communications between Mr. Wang and employees, officers, and directors of China State in respect of the project. The Gamma defendants say this request should be limited to records that speak to presumptive connecting factors said to serve to establish the plaintiffs’ allegations that there is a real and substantial connection between the claims against the Gamma foreign defendants and Ontario. The extent to which China State was involved in decision-making related to the project is relevant to whether the company does business in Ontario.

The third category of documents seeks production of any financial statements or accounting records of China State that include reference to the plaintiffs’ account for the project. The plaintiffs request these documents to show that China State does business in Ontario or uses subsidiaries it controls to carry out business on its behalf in Ontario. The documents requested are limited to those that refer to the project. I am satisfied that this document request is not overly broad.

The fourth category of documents seeks production of any rejections, approvals, or written records of decisions made by Mr. Wang in relation to any costs, invoices, purchase orders, schedules, and supplier and trade contracts in respect of the project. The Gamma defendants argue that Mr. Wang’s decision-making in relation to the project is not relevant on the jurisdiction motion and written records of decisions made by Mr. Wang speak only to issues in the main action. I disagree. Mr. Wang is an executive of China State and an officer and director of Gamma Windows and Walls. Mr. Wang’s decisions in respect of the project in Ontario are relevant to the issue of whether the Gamma foreign defendants carry on business in Ontario. These documents are relevant to this issue on the jurisdiction motion.

The fifth category of documents seeks production of any notes from meetings attended by Mr. Wang with, or any records of communications between himself and, Robert Scarfo, William Yu, Michael Hockham, Alex Jennings, Jason Oliveira, Joseph Numes, Joe Wang and/or any other employees of the Gamma defendants in respect of the project, including supply chain issues, acceleration measures, and financial matters. The Gamma defendants object to these documents being produced because these are issues said to be “at the core of the underlying action” and irrelevant to the issues on the jurisdiction motion. The plaintiffs’ purpose in requesting these documents is to show that Mr. Wang, an executive of China State, and an officer and director of Gamma Windows and Walls, participated in meetings and did business in Ontario. These documents, too, are relevant to the jurisdiction motion.

The sixth and final category of documents requests all formats of documents or records “in any way relating to any of the above listed items.” This is not a standalone request; it simply captures all formats of the documents previously requested and does not go beyond documents relevant to the issues underlying the jurisdiction motion.

In support of their argument that the plaintiffs’ examination of Mr. Wang would amount to an abuse of process, the Gamma defendants rely on the decisions of this court in Derenzis, Ontario Psychological Association v. Mardonet et al., 2015 ONSC 3063, and Schreiber v. Mulroney.

I have previously discussed Derenzis. It does not assist the Gamma defendants.

In Ontario Psychological Association, Faieta J. quashed summonses on the basis that they amounted to a fishing expedition. In doing so, Faieta J. noted that there was nothing in the responding parties’ factum or submissions that suggested they disagreed with the moving parties’ assertion that all matters addressed in the statement of claim (55 pages in length plus appendices) would be open to examination. That is plainly not the case in the matter before me.

In Schreiber, Lax J. concluded that the proposed examination of Mr. Mulroney was being used either to conduct third-party discovery or as a fishing expedition to gather evidence for a pending motion. There was no evidence that Mr. Mulroney was in a position to offer relevant evidence. Again, that is not the case in relation to Mr. Wang.

Conclusion

The Gamma defendants’ motion to quash the summons to witness served on Mr. Wang in relation to the pending jurisdiction motion is dismissed.

In the event the parties are unable to agree on costs of the motion to quash, they may make brief written submissions, limited to a maximum of three pages, exclusive of relevant attachments. The plaintiffs shall deliver their costs submissions by February 18, 2025. The Gamma defendants shall deliver their responding costs submissions by March 4, 2025. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

R. Ryan Bell
Date: February 4, 2025

[^1]: See also Konstan v. Berkovits, 2013 ONSC 6169, paras 18-19.
[^2]: See Club Resorts Ltd. v. Van Breda, 2012 SCC 17.