CITATION: Vojvodik v. Agostino et al., 2026 ONSC 3846

COURT FILE NO.: CV-24-0261-00

DATE: 2026-07-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL VOJVODIK

C. Deboni, for the Plaintiff

Plaintiff

• and -

R. AGOSTINO & SONS SERVICE STATION LTD., FRANK AGOSTINO and JOSEPH AGOSTINO

G. Sanson, for the Defendants

Defendants

No-one appearing for the non-party, Maria Vojvodik

HEARD: June 25, 2026, in Thunder Bay, via Zoom

Justice W.D. Newton R.S.J.

Decision On Motion

Overview

1The plaintiff moves for orders requiring:

a. a non party, Maria Vojvodic, to attend an examination for discovery; and

b. the defendants, Frank and Joe Agostino, to answer questions refused at their examinations for discovery.

2For the reasons that follow, both motions are dismissed with costs.

The Facts

3The plaintiff (“Mike”) married Maria Agostino (“Maria”) on August 2, 1986. They divorced in 2008.

4Prior to her marriage Maria lived with her mother, Teresa, at 1151 John Street, Thunder Bay, Ontario (“1151”). Mike moved into 1151 around 1984 or 1985. The defendant, R. Agostino & Sons Service Station Limited (the “Company”), owned 1151 and the house next door to 1151, 1133 John Street (“1133”). Mike and Maria moved into 1133 after marriage.

5Mike asserts that 1133 was promised to Mike and Maria as their “matrimonial home” and, in reliance upon that promise, Mike renovated 1133 and improved other properties owned by Teresa, Frank, and Joe. Mike says that he and Maria paid all expenses relating to maintenance and utilities at 1133 after they were married.

6Teresa died in 2006. Sometime before or after Teresa’s death, Maria moved into 1151. Mike asserts that he paid all the expenses relating to 1133 thereafter.

7In 2024, Frank and Joe, on behalf of the Company, told Mike that they would be selling 1133 and 1151.

8Mike started this action claiming a beneficial interest in 1133 and obtained a Certificate of Pending Litigation without notice against 1133. In 2025, Lepere J. made orders discharging the Certificate of Litigation, directing that Mike deliver vacant possession of 1133, and directing that the net sale proceeds be held in trust pending further order of the Court.¹

9Discoveries of the parties are complete. The plaintiff has sought information from Maria, but she has refused to cooperate. Counsel for the defendants has provided a “will say” statement from Maria. The “will say” asserts that Maria’s evidence will be:

8. Mike worked in construction, and he offered to fix up the house at 1133 so that we could have a place to live after we got married, provided that the Company paid for all materials and building costs.

9. Mike and I fixed up the house at 1133 in around the spring and summer of 1986. Mike and I moved into the house at 1133 shortly after we got married on August 2, 1986.

10. From my discussions around that time with Joseph, Frank, and my mother Teresa, I always understood that our occupation of the house al 1133 was not meant to be a permanent arrangement, and that we would be required to move out when the Company decided to do something different with the property.

11. Mike and I were never told that the house at 1133 would be our 'matrimonial home' or that Mike and I would be able to live there forever. At no time did anyone in my family suggest that the house at 1133 would become our property. I always understood that 1133 was not our property. Mike and I considered ourselves lucky to be able to live in the house at 1133.

10The plaintiff argues that it would be unfair to proceed to trial without Maria’s sworn evidence.

11When discovered, the defendants refused to provide a copy of Teresa’s Will and to provide the names and contact information of anyone with whom they have discussed this litigation. The defendants argue that these undertakings are not relevant and/or too overly broad.

Analysis and Disposition

12Rule 31.10 addresses discovery of non-parties:

RULE 31.10 – Discovery of Non-Parties with Leave

General

31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has

information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

Test for Granting Leave

(2) An order under subrule (1) shall not be made unless the court is satisfied that,

(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not,

(i) unduly delay the commencement of the trial of the action,

(ii) entail unreasonable expense for other parties, or

(iii) result in unfairness to the person the moving party seeks to examine. [Emphasis added.]

13In Merritt v. London Health Sciences Centre² the principles to be considered in determining to grant leave were summarized as follows:

a. the requirements of Rule 31.10 are cumulative and a party seeking such relief must satisfy both Rule 31.10(1) as well as each of the requirements in Rule 31.10(2);

b. there must be good reason to believe that the non-party has information relevant to a material issue;

c. before being entitled to an examination of non-parties, the moving party must establish that he or she has been unable to obtain the information sought from the other parties to the action as well as from the non-parties they wish to examine;

d. there must be a refusal, actual or constructive, to obtain the information from the other parties to the action, and the non-parties, before the moving party will be able to meet the onus under Rule 31.10(2)(a); and,

e. if that onus is met the court may then look to Rule 1.04 to decide whether the court’s discretion, as set out in Rule 31.10(1), should be exercised on the facts of each particular case.

14It is not disputed that Maria has information relevant to a material issue in this action. There has not been a refusal by the defendants to provide the information as a “will say” has been provided. The “will say” sets out the substance of the witnesses’ evidence. The purpose of a “will say” statement is to avoid trial by surprise. The “will say” here meets that purpose and addresses “unfairness”. The test for leave is discretionary for good reason – each witness should not be subject to discovery unless the requirements of r. 31.10 are met.

15The motion for leave to examine a non-party is therefore dismissed.

16With respect to the undertaking requesting a copy of Teresa’s Will, the plaintiff has not articulated any reason to explain how that Will may be relevant to this dispute. As the plaintiff has not established relevance, there is no basis to order production of the Will.

17With respect to the request that Frank provide the names of anyone that he “has had conservations with about this litigation” and that Joe provide the names of “who he has had discussions about this dispute with”, r. 31.06(2) states:

Identity of Persons Having Knowledge

(2) A party may on an examination for discovery obtain disclosure of the names and

addresses of persons who might reasonably be expected to have knowledge of

transactions or occurrences in issue in the action, unless the court orders otherwise.

18What was sought were the names of anyone whom Frank or Joe have spoken to about this “litigation” and “dispute”, and not the names of persons “expected to have knowledge of the transactions or occurrences in issue in the action”. There was no obligation to provide this information. The information is of likely little relevance, and the request is overly broad.

19The undertaking motion is dismissed.

Costs

20As the motion is dismissed, the defendants are entitled to their costs of the motion. If costs are not settled, then, within 30 days, the defendants should deliver their cost submissions limited to 3 pages plus costs outline. Within 7 days thereafter, the plaintiff may deliver costs submissions subject to the same page limitations.

Next Steps

21It appears that the plaintiff has not quantified his claim at this stage. It may be beneficial for the parties to consider seeking an early pretrial conference or an early resolution conference to address trial management issues. Subject to the direction of that judge, the parties may seek bifurcation of the liability and damages issues and proceed to trial, perhaps with evidence in chief of all witnesses by affidavit, again subject to the direction of that judge.

The Hon. Justice D. Newton R.S.J.

Footnotes

1. 1See Vojvodic v. Agostino et al., 2025 ONSC 3035.
2. 22021 ONSC 4351, at para. 23.