CITATION: YG Limited Partnership and YSL Residences Inc. (Re), 2026 ONSC 4566
COURT FILE NO.: BK-21-02734090-0031
DATE: 20260807
SUPERIOR COURT OF JUSTICE – ONTARIO (COMMERCIAL LIST)
RE: IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, as amended IN THE MATTER OF THE NOTICES OF INTENTION TO MAKE A PROPOSAL OF YG LIMITED PARTNERSHIP AND YSL RESIDENCES INC.
Profit Share Claim of Maria Athanasoulis against YG Limited Partnership and YSL Residences Inc.
BEFORE: KIMMEL J.
COUNSEL: Mark Dunn, Sarah Stothart & Brittni Tee, for the Moving Creditor Maria Athanasoulis
Matthew Milne-Smith, Chenyang Li & Ryan Reid, for the Proposal Trustee, AlixPartners Restructuring, Inc.
HEARD: July 28, 2026
ENDORSEMENT (Athanasoulis motion for production of expert communicatIons)
Background to this Motion
[1] This motion seeks to compel certain communications with experts whose opinions the Proposal Trustee has relied upon in its valuation of a Profit Share Claim submitted by Ms. Athanasoulis. Some context is required to understand the specific issues raised by this motion.
The Profit Share Claim
[2] Maria Athanasoulis filed a proof of claim in these proceedings that was disallowed in August of 2023 by the Proposal Trustee (“Trustee”) appointed under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”). Her original proof of claim was for two unsecured claims (together, the “Athanasoulis Claim”):
a. $1 million in respect of damages for wrongful (constructive) dismissal (the “Wrongful Dismissal Claim”); and
b. $18 million in respect of damages for breach of an oral agreement that Ms. Athanasoulis would be paid 20 percent of the profits earned on the YSL Project (the “Profit Share Claim”).
[3] After an aborted private arbitration process in 2022[1] and in accordance with the eventually established claims procedure,
a. On March 30, 2023, the Trustee delivered to Ms. Athanasoulis notice that it would accept her Wrongful Dismissal Claim in the amount of $880,000.39.
b. On August 10, 2023, the Trustee delivered to Ms. Athanasoulis a Notice of Disallowance of her $18 million Profit Share Claim (the “Disallowance”).
The Initial Determination and Appeal of the Profit Share Claim
[4] The Trustee’s partial allowance of the Wrongful Dismissal Claim has not been challenged. Ms. Athanasoulis appealed (by way of motion under the BIA) from the Trustee’s Disallowance in full of Ms. Athanasoulis’s $18 million Profit Share Claim based. That appeal was heard on December 18 and 22, 2023 and allowed by this court on March 19, 2024, at which time the disallowance of the Profit Share Claim was set aside (see YG Limited Partnership and YSL Residences Inc. (Re), 2024 ONSC 1617, 22 C.B.R. (7th) 375, aff’d 2025 ONCA 591, 21 C.B.R. (7th) 1, leave to appeal refused, [2025] S.C.C.A. No. 423[2]).
[5] The Profit Share Claim is a claim for unliquidated damages that has been finally determined to be a “provable claim” under s. 121 of the BIA that must be determined and valued by the Trustee.
The Now Pending Appeal of the Profit Share Claim
[6] Following further disagreement among the Trustee and Ms. Athanasoulis about the appropriate manner of proceeding, the court approved and adopted (in an endorsement released on November 13, 2025) the Trustee’s suggested procedure (supported by the Sponsor) for the determination and valuation of the Profit Share Claim, to be carried out in a manner consistent with the mandatory statutory duty of the Trustee under sections 121 and 135 of the BIA to investigate and render a determination in respect of every proof of claim submitted in insolvency proceedings.
[7] To that end, the court directed the Trustee to investigate and value the Profit Share Claim based on the following bespoke procedure that was tailored specifically to the Profit Share Claim:
a. Ms. Athanasoulis would submit a revised proof of claim as required under the BIA in respect of her Profit Share Claim that would contain a comprehensive record, including expert evidence, and all other evidence on which she relies, if any, in the valuation of her Claim.
b. The Trustee would then determine the Profit Share Claim based on the revised proof of claim. If the Trustee determined that it required expert assistance to value the Athanasoulis Claim upon receipt of the revised proof of claim, the Trustee would advise the relevant stakeholders. In addition, if the Trustee required additional information or materials (including examinations under oath) from any stakeholders, including Ms. Athanasoulis, it would advise of same and establish a timetable for collecting that information and material.
c. The Trustee would advise Ms. Athanasoulis of its determination of her Profit Share Claim in the prescribed manner under section 135 of the BIA.
d. Ms. Athanasoulis would then assess the Trustee’s valuation of her Profit Share Claim and determine whether she would like to engage the appeal mechanisms under the BIA.
[8] This procedure required that all evidence be filed by way of affidavit or obtained by out-of-court examination, and granted Ms. Athanasoulis a right to cross-examine all witnesses. This afforded Ms. Athanasoulis the opportunity to know, and challenge if appropriate, all the facts that could impact the Trustee’s valuation of her Claim. That process has now run its course, and the Trustee has valued the Profit Share Claim at zero by Notice of Valuation dated June 30, 2026 (the “Valuation”). Ms. Athanasoulis’s appeal of the Valuation is scheduled to be heard by this court on October 21, 2026.
[9] As a frame of reference for the appeal, Ms. Athanasoulis relies upon an appraisal report prepared by CBRE in July 2019 (the “CBRE Report”), which relied on the Land Residual Approach to value the YSL Project at $375 million on December 31, 2019 (the “Effective Date”). After receiving the reports produced by the experts hired by the Trustee, she submitted a further report from an expert at Cushman & Wakefield who agreed with the Land Residual Approach. The Trustee’s Valuation rests largely on evidence from two experts it hired, whose combined opinions (one dependent in part on the other) concluded that the value of the YSL Project was $275 million on the Effective Date, adopting a Direct Comparison Approach. There is a $100 million difference between the expert appraisals that Ms. Athanasoulis and the Trustee have each put forward.
[10] Ms. Athanasoulis explains that the court will have to first determine whether it is an appeal de novo or a true appeal. Regardless of which type of appeal this ends up being (and even though the analytical framework will be different) the court will be asked to consider, among other things, whether the Trustee erred by accepting its experts’ appraisals that adopted the Direct Comparison Approach and that adopted what Ms. Athanasoulis describes as a novel hybrid approach to the Valuation by which the primary expert of the Trustee (Mr. Samuel Linds) relies in part on a discrete opinion provided by the secondary expert of the Trustee (Mr. Niall Finnegan), whose opinion and report is rejected by the Trustee in all other respects except this one foundational input to the opinion and report of Mr. Linds.
This Expert Production Motion
[11] On this motion Ms. Athanasoulis seeks:
a. an order directing the Trustee to disclose to Ms. Athanasoulis all correspondence and documents that Mr. Linds and Mr. Finnegan exchanged with each other, the Trustee, or the Trustee’s counsel, including notes describing same and including (without limitation):
i. Any factual information or assumptions or documents provided to either Mr. Linds or Mr. Finnegan;
ii. Any draft reports shared by Mr. Linds or Mr. Finnegan with the Trustee or its counsel, and any comments provided by the Trustee thereon;
iii. Any correspondence relating to the preparation of Mr. Linds’s or Mr. Finnegan’s expert reports;
iv. Any correspondence relating to the materials delivered by Ms. Athanasoulis or the cross-examinations in this matter, including any questions that the Trustee asked of Mr. Linds or Mr. Finnegan and their responses;
v. Any correspondence relating to the Valuation (as defined below), including any questions that the Trustee asked of Mr. Linds or Mr. Finnegan and their responses;
b. To the extent not captured by (a) above, an order directing the Trustee to produce updated answers and the documents requested by Ms. Athanasoulis in Questions 1 to 10 arising from the examination of Mr. Linds dated May 6, 2026;
c. To the extent not captured by (a) above, an order directing the Trustee to produce updated answers and the documents requested by Ms. Athanasoulis in Question 2 arising from the examination of Mr. Finnegan dated May 5, 2026;
d. Costs of this motion.
Summary of Outcome
[12] For the reasons that follow, I am ordering the Trustee to produce the information requested during the cross-examination of its experts, set out in sub-paragraphs (b) and (c) of the Notice of Motion (corresponding with the above), with redactions, if applicable. The permitted redactions would be in respect of any material covered by this order that is alleged to constitute the Trustee’s investigative correspondence, so as to remove any references to the Trustee’s strategy or tactics as they pertain to the bankrupt.
Positions and Procedural Context
[13] This is an unusual case. It is unusual because, among other reasons, (i) of the procedural path the Athanasoulis Claim has followed (which is long and somewhat tortuous and will not be repeated here as it is not directly relevant to the issues on this motion but has been the subject of a number of prior endorsements and directions from the court), (ii) of the time that it has taken for the Athanasoulis Claim to be determined and valued, and (iii) the Trustee has assumed the role of investigator, adjudicator and valuator of the Profit Share Claim after originally denying it on the basis that it was not a provable claim at all, which determination was overturned by this court, upheld by the Court of Appeal and denied leave to appeal by the Supreme Court of Canada.
[14] Ms. Athanasoulis accepts that it is her burden to prove her Profit Share Claim. Ms. Athanasoulis was afforded the opportunity to reframe the amount and theory of her Profit Share Claim (which was increased from $18 million in her original proof of claim to $25 million now claimed).
[15] The Trustee maintains that it has approached the valuation of the Profit Share Claim in an objective and impartial manner. The Trustee has taken the unusual step in this case of swearing an affidavit to affirm its impartiality and objectivity in undertaking the Valuation. Further, it has confirmed that it rendered the Valuation based solely on its impartial assessment of the evidence filed in these proceedings and not on any exchanges or communications with the experts or any other individual that was not part of the evidentiary record. During cross-examination, Mr. Kofman (the Trustee’s representative) testified that any comments provided by the Trustee on the experts’ reports were “not factual or substantive” but rather clarifying in nature.
[16] Further, the Trustee conducted an open-ended (rather than adversarial cross-) examination of both Ms. Athanasoulis and Mr. Parsons, the second expert whose opinion Ms. Athanasoulis relies on. The Trustee also sought out further information that Ms. Athanasoulis referenced in her evidence to verify certain of her assertions that were not corroborated. Ultimately, the Trustee did not accept the valuation approach and methodology that Ms. Athanasoulis put forward, and adopted the approach propounded by the experts it hired in its eventual determination that her Profit Share Claim should be valued at zero.
[17] Ms. Athanasoulis maintains that she is entitled, in the context of her appeal, to disclosure of relevant information that may have impacted the Trustee’s determination that the value of her Profit Share Claim is zero. She wants procedural fairness and transparency in this unusual process by which the Trustee (a party whom she views as a litigation adversary dating back to the original arbitration process and through the first round of appeal from the Trustee’s disallowance of her Profit Share Claim, and to whom she will be adverse in the context of the now launched second appeal) has been, in the interim, tasked with the role of investigating and adjudicating her $25 million Profit Share Claim and has valued it at zero.
[18] The Trustee argues that because Ms. Athanasoulis has stated on more than one occasion that she is not accusing the Trustee of having acted in bad faith or having acted improperly in influencing any evidence gathered by it in the process of valuing her Profit Share Claim, the communications with or between the experts are not relevant to any issues that she may raise about the Valuation.
[19] Ms. Athanasoulis counters that bad faith or improper influence does not need to be demonstrated. Since reasonable people may differ in aspects of the valuation exercise that are the subject of discretionary or subjective assessments, the inputs going both ways between the Trustee and the experts are, at the very least, relevant to the goals of transparency and objectivity in the working out of the investigation and valuation of her Profit Share Claim and should be disclosed. However, she also argues that evidence of influence, even if not improper, may also still be relevant to the assessment of the Valuation of her Profit Share Claim.
[20] It is agreed that there is, and can be, no claim for privilege asserted by the Trustee over the requested, or any other, communications. This is because the Trustee insists that it is not an adversary to Ms. Athanasoulis in the context of this ongoing process; rather it is the investigator and decision-maker. Ms. Athanasoulis contends that, if the Trustee is viewed strictly as such, then:
a. to the extent that information provided by the Trustee, or information shared between the experts, was considered by the experts and that information is not referred to in their reports, that undisclosed information might have influenced the experts’ determinations that were, in turn, relied upon by the Trustee in whole or in part, and that is relevant information for her to have about the assessment of her Profit Share Claim; and
b. to the extent that the experts provided information to the Trustee that is not referred to in their reports and that may have been considered by the Trustee in determining the value of her Profit Share Claim, that too is relevant information for her to have about the assessment of her Profit Share Claim.
[21] The prospect of all these scenarios having occurred was raised and confirmed on the cross-examinations, for example:
a. Mr. Linds, one of the experts whose report is relied upon in its entirety by the Trustee in its determination of the Profit Share Claim, testified that he received instructions and information from both the Trustee and its counsel, and that this information was incorporated directly into and “influenced” his report. This was not necessarily done with specific attribution each time to the Trustee. Mr. Linds further testified that he received comments on drafts of his report from the Trustee or its counsel that were integrated into his report, again without specific attribution in the report.
b. The Trustee confirmed in its testimony that it provided the documents and factual information that its experts relied on, and that it commented on draft reports.
c. Mr. Linds acknowledged that he communicated with Mr. Finnegan about, and to better understand, the portions of Mr. Finnegan’s report that Mr. Linds was relying upon, and that Mr. Finnegan gave him information that he incorporated directly into his report, not necessarily with specific attribution.
d. Mr. Linds also testified, and the Trustee confirmed, that there were communications between Mr. Linds and the Trustee and its counsel about his report, where points of clarification or explanations were sought and provided.
e. Mr. Linds confirmed on his cross-examination that he may have discussed the Parsons report (from Ms. Athanasoulis’s expert) with the Trustee and/or its counsel and he attended the cross-examination of Parsons and helped counsel during and in preparation for that examination, from which it can be reasonably inferred that it is possible that Mr. Linds expressed views about the Parsons analysis that could have impacted the Trustee’s assessment of it and how it was taken into consideration in the Valuation of the Profit Share Claim.
[22] It was acknowledged during the cross-examination of the Trustee that discussions took place before the experts’ reports were delivered, but not afterwards. It is these pre-report communications that Ms. Athanasoulis says are relevant for her to know about so that she can evaluate for herself whether they had any influence on the reports (e.g. changes between drafts to final) or, conversely, whether things stated by the experts that were not included in their reports had seemingly influenced the Trustee’s Valuation.
[23] The Trustee describes this as a fishing expedition because Ms. Athanasoulis only provides one example of anything in the Valuation that is not otherwise explained in detail in the Valuation report, that being the Trustee’s decision to accept only one aspect of the otherwise rejected analysis from Mr. Finnegan. The Trustee says this is not relevant because this aspect of the Finnegan analysis that was relied on by Mr. Linds and adopted by the Trustee was favourable to Ms. Athanasoulis.
[24] The Trustee prefers to view this as an impermissible request by Ms. Athanasoulis for production of its working file to a creditor whose claim the Trustee is tasked with investigating and adjudicating, which is precluded under s. 26 of the BIA. Section 26 of the BIA generally entitles a creditor to ask for production of the “estate books, records and documents relating to the administration of the estate”. However, the Trustee insists that its working files are protected, regardless of whether there is a claim for privilege asserted over them.
[25] The Trustee refers to an earlier line of cases that, in the context of concerns about privilege, more broadly determined that a trustee’s working file in respect of the investigation of a particular claim is not captured by the disclosure obligations under s. 26 of the BIA: see Robson, Re (2002), 2002 CanLII 49580 (ON SC), 32 C.B.R. (4th) 105 (Ont. S.C.), at para. 9, referring to Chaban, Re (1998), 1998 CanLII 13450 (SK QB), 4 C.B.R. (4th) 210 (S.K.Q.B.), at paras. 2, 35-37; see also Chua, Re (1995), 1995 CanLII 2018 (BC SC), 34 C.B.R. (3d) 226 (B.C.S.C.), at para. 4. The logic, or reasoning, underlying this line of cases is that the Trustee’s ability to act in the best interest of the estate would be compromised by the imposition of a requirement to produce its working file and investigative correspondence to each and every claimant in a BIA proceeding upon demand: see Robson, at para. 9; Chaban, at para. 37.
[26] The Trustee also raises concerns about timing and delays and the inefficiency of the Trustee having to search for, review and produce these records in what is intended to be a summary process under the BIA for the investigation and valuation of claims. On this point, Ms. Athanasoulis counters that the path that has been followed for the determination of the Athanasoulis Claim has been anything but summary or efficient. This general objective cannot be invoked now to deprive her of disclosure that she might otherwise be entitled to. Further, the Trustee has not tendered any evidence to support a proportionality argument.
Analysis
[27] Although the Notice of Motion is worded in very general terms and could be read to be seeking production from the Trustee’s files, Ms. Athanasoulis maintains that she is not moving under s. 26 of the BIA for production of the books and records of the Trustee but rather seeks from the experts’ files production of their communications with the Trustee and its counsel, or each other. To reinforce this, she points out that one of the categories of communications sought are those among the experts, which could not be part of the Trustee’s working files in any event. I accept that this motion can be decided on the basis that it is a request for documents from the experts’ files, as opposed to a request for books, records and documents from the Trustee’s working file under s. 26 of the BIA.
[28] The experts have not taken a formal position on this motion. The refusals/under advisements on their cross-examinations were taken by counsel for the Trustee. Aside from not knowing how long it will take for the experts to produce these records (no one having asked them), the Trustee is not aware of any impediment to an order being made for the requested production from their files. If, as a matter of convenience, it is easier to obtain any documents ordered produced from the Trustee’s (or its counsel’s) files (since they would be the counterparties to most of the requested documents) that does not change the frame of reference for the court’s analysis.
[29] Given the unusual procedure that is being followed in this case, it is not surprising that there is nothing in ss. 121 or 135 or elsewhere in the BIA that addresses the question of production of materials from experts who have provided opinions to inform the determination of a proof of claim. The BIA does not include any rules or guidance about expert reports or cross-examinations in this context and cannot, as the Trustee suggests, be viewed as a “complete code” for the exchange of evidence in the context of this proceeding.
[30] In a situation such as this where there is a “gap”, the Bankruptcy and Insolvency General Rules thus direct the Court to have regard to the Rules of Civil Procedure: see Bankruptcy and Insolvency General Rules, C.R.C., c. 368, r. 3. In Lau v. Insurance Corporation of British Columbia, 2022 BCSC 2355, 31 C.C.L.I. (6th) 334, at para. 19, production of the books and records of the trustee was required to be made in civil litigation notwithstanding it was requested by someone who was not one of the listed persons in section 26(3) of the BIA, recognizing that: “production of the books, records and documents in relation to a bankruptcy is not solely restricted to what is required within the bankruptcy proceedings.”
[31] Since this is not a s. 26 BIA request, the cases decided under that section that the Trustee relies on (referenced earlier in this endorsement), which mostly arise in situations where a trustee is in a directly adversarial position to a creditor in litigation giving rise to concerns about litigation privilege, are not directly applicable to the unusual circumstances of this case.
[32] Reliance upon those cases has led the Trustee to a seemingly inconsistent position that tethers its opposition to the requested production to the idea that it is now engaged in an adversarial process with Ms. Athanasoulis because she has appealed the Valuation. The Trustee’s logic appears to be that even though it has no vested interest in the outcome, it is duty bound to protect the interests of the estate, including those of other unsecured creditors and equity holders, who have no standing on the appeal but whose pro rata or proportionate recoveries will be impacted by any success that Ms. Athanasoulis enjoys in her appeal.
[33] That logic does not fit with the paradigm within which the requests for production have been made. The Trustee has steadfastly maintained that, in the context of its investigation and leading up to the Valuation report it prepared, it was not in an adversarial position with Ms. Athanasoulis. It is that same “non-adversarial” time period in which the requested production relating to the expert reports arose.
[34] It was confirmed during oral argument that the period of time that this request covers is from the engagement of the experts in November 2025 until the delivery of their reports in March 2026, or at the very latest, until the delivery of the Trustee’s Valuation report at the end of June 2026. The adversarial (and possible privilege) concerns could not have existed in the period prior to the Valuation. It was confirmed during the cross-examination of the Trustee that they have not spoken to the experts since the Valuation was finalized so there is no risk that the requested disclosure will require production during any period in which litigation privilege might be implicated.
[35] In the absence of any express guidance or direction under ss. 121 or 135 (or, for that matter, s. 26) of the BIA, by analogy to the Rules of Civil Procedure some semblance of relevance must be demonstrated. Ms. Athanasoulis says the fact that there have been communications that may not have been directly referenced in the experts’ appraisal reports or in the Valuation itself, but that could have influenced the Trustee’s ultimate decision to accept its experts’ appraisals and reject the expert opinion and analysis propounded by Ms. Athanasoulis, is enough to establish a semblance of relevance. I agree.
[36] In a different context but one in which relevance was one of the guiding considerations, this court held that a decision maker that communicated with an expert appraiser whose report and opinion formed the basis for a decision about statutory expropriation had to disclose communications with the expert, including, among other things, if any information that was provided to the appraiser that was not outlined in his report, whether the content of the appraiser’s report changed between drafts, and whether instructions given to the appraiser changed after draft appraisal reports: see Metrolinx v. 1450638 Ontario Inc., 2021 ONSC 8045, 20 L.C.R. (2d) 196, at paras. 52-53. This is the same type of information that the requests made, and refused, during the cross-examinations of the Trustee’s experts pertain to.
[37] Furthermore, in the context of the determination of claims under the BIA, this court has found that disclosure of underlying expert reports is relevant to the transparency and impartiality, and the perception of transparency and impartiality of a claims process: see Beetown Honey Products Inc. (Re) (2003), 67 O.R. (3d) 51 (S.C.), at paras. 16, 20-24. It is, in the circumstances of this case, both relevant and important that Ms. Athanasoulis have a complete picture of the information and opinions underlying the Trustee’s assessment and Valuation of her Profit Share Claim.
[38] The somewhat unusual court approved claims process in this case expressly contemplated that the Trustee might obtain expert inputs into its Valuation of the Profit Share Claim, and to the extent it did so, those were to be provided in expert reports. Paragraph 9 of the court’s November 13, 2025 endorsement provided that the Trustee would “seek out the necessary evidence to evaluate the [Claim]”, and, if additional evidence was deemed necessary, the Trustee would (i) secure that evidence through affidavit or examination; (ii) in the case of expert analysis, request such expert analysis “without direction as to [the] outcome” and present that analysis in “report(s) to be provided to all participating parties”; and (iii) make all fact and expert witnesses available for cross-examination.
[39] Adherence to the disclosure requirements under the Rules of Civil Procedure for expert reports provided the evidentiary support and foundation for any expert opinions that have influenced the ultimate determination of the Profit Share Claim. It follows that it was open to Ms. Athanasoulis to ask for production during the cross-examinations of the experts, as she did, of communications that may have influenced the expert appraisals that the Trustee relies upon, or that may have influenced the Trustee’s assessment of the appraisals that Ms. Athanasoulis provided in support of her Profit Share Claim.
[40] The Trustee says it has been fair and transparent and has given detailed disclosure about the basis for its Valuation (in a 65-page report that contains over 300 citations to the evidentiary record). The reasoning behind the s. 26 BIA cases that the Trustee relies upon (from Saskatchewan, BC and Ontario, Chaban, Chua and Robson) is that its ability to act in the best interest of the estate would be compromised by imposing a requirement to produce its working file and investigative correspondence to each and every claimant in a BIA proceeding upon demand. However, that is not what Ms. Athanasoulis seeks (and to the extent any of her requests overreach into that arena they will not be given effect to).
[41] While the s. 26 BIA cases are not directly applicable, it is helpful to look to them for guidance and guardrails that might be reasonably placed on the production requests in this case. The latest in that line of cases is Sirois (Re), 2026 BCSC 468, at paras. 1-2, 45, 66-68 and 75, in which the BC Supreme Court dismissed a bankrupt’s motion to examine the Trustee and limited the requested production of a variety of documents in the possession of the Trustee, including all of the Trustee’s non-privileged correspondence and meeting minutes, which the bankrupt argued was a matter of “transparency”. The court affirmed that while some “non-privileged correspondence” and meeting minutes were producible, non-privileged investigative correspondence was only producible on the basis that it would be “redacted or omitted as necessary to remove discussion of the Trustee’s strategy or tactics” as they pertained to the bankrupt (see paras. 72-77).
[42] I agree that the Trustee’s internal decision-making process, and its internal notes, are not “evidence” that would assist Ms. Athanasoulis in proving the value of her claim or ultimately her appeal of the Trustee’s Valuation. However, given the neutral role that it was to be playing in the development of the evidence that was ultimately considered in its Valuation of the Profit Share Claim, it is hard to conceive that its correspondence or communications with the experts, or the communications between the experts, would reflect the Trustee’s internal strategy, tactics or decision-making process.
[43] As in Sirois, there is a balancing to be achieved. Here the Trustee should secure and produce the correspondence and communications with and among the experts, after having reviewed the implicated records and redacted them to remove disclosures about the Trustee’s strategy, tactics or decision-making process, if there are any. When the court raised the possibility of this type of order being made during the hearing, the Trustee indicated that it would do this review expeditiously, if ordered, noting that it would have reviewed anything ordered produced, regardless, and is committed to doing so expeditiously. Accordingly, the added step of review and redaction, if appropriate, should not add material additional time to the production timeline.
[44] Part of that balance includes limiting Ms. Athanasoulis to things she asked for during the cross-examinations, since she insists she is not relying on s. 26 of the BIA to support her disclosure requests from the Trustee’s working files, but is rather seeking production from the experts. In that context, the Trustee quite properly points out that Ms. Athanasoulis should not be entitled to seek production of materials that were not in fact requested during cross-examination: see Verge Insurance et al. v. Sherk et al., 2013 ONSC 7855, at para. 83.
[45] The experts were asked during their cross-examinations about their communications with the Trustee and with each other. Those questions were taken under advisement and eventually refused on their cross-examinations. For example,
a. To advise as to what was discussed at the virtual meetings between Mr. Linds and representatives of KSV and Davies regarding the mandate for the Colliers Appraisal Report dated March 2, 2026. Refused. The Trustee’s communications with Mr. Linds are not relevant to the determination. Without prejudice to the Trustee’s position in this regard, the Trustee’s instruction to Mr. Linds was that the Trustee had no interest in the outcome of the determination and Mr. Linds should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds is not proportionate given that it is not relevant to the determination.
b. To produce all drafts of the March 2, 2026 Appraisal Report sent by Mr. Linds to KSV and Davies, on which KSV and Davies provided comments that were subsequently incorporated into the final report. Refused. The Trustee’s communications with Mr. Linds are not relevant to the determination. Without prejudice to the Trustee’s position in this regard, the Trustee’s instruction to Mr. Linds was that the Trustee had no interest in the outcome of the determination and Mr. Linds should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds is not proportionate given that it is not relevant to the determination.
c. To advise whether the first draft of the Appraisal Report sent to KSV and Davies contained a valuation number. Refused. The Trustee’s communications with Mr. Linds are not relevant to the determination. Without prejudice to the Trustee’s position in this regard, the Trustee’s instruction to Mr. Linds was that the Trustee had no interest in the outcome of the determination and Mr. Linds should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds is not proportionate given that it is not relevant to the determination.
d. To advise whether the valuation number in the first draft of the Colliers Appraisal Report is the same as the number in Mr. Linds’s final Appraisal Report dated March 2, 2026. Refused. The valuation number in a particular draft report of Mr. Linds is not relevant to the Trustee’s determination.
e. To produce all correspondence amongst Colliers, KSV, and Davies, excluding correspondence between KSV and Davies that does not include Colliers. Refused. The Trustee’s communications with Mr. Linds are not relevant to the determination. Without prejudice to the Trustee’s position in this regard, the Trustee’s instruction to Mr. Linds was that the Trustee had no interest in the outcome of the determination and Mr. Linds should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds is not proportionate given that it is not relevant to the determination.
f. To advise what was discussed at the meeting Mr. Linds had with representatives of Davies and KSV to prepare for his cross-examination. Refused. The Trustee’s communications with Mr. Linds are not relevant to the determination. Without prejudice to the Trustee’s position in this regard, the Trustee’s instruction to Mr. Linds was that the Trustee had no interest in the outcome of the determination and Mr. Linds should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds is not proportionate given that it is not relevant to the determination.
g. To advise whether Mr. Linds discussed potential questions that he might be asked during the preparatory meeting with Davies and KSV. Refused. The Trustee’s communications with Mr. Linds are not relevant to the determination. Without prejudice to the Trustee's position in this regard, the Trustee’s instruction to Mr. Linds was that the Trustee had no interest in the outcome of the determination and Mr. Linds should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds is not proportionate given that it is not relevant to the determination.
h. To advise whether Mr. Linds discussed potential ways to answer potential questions he might be asked during the preparatory meeting with Davies and KSV. Refused. The Trustee’s communications with Mr. Linds are not relevant to the determination. Without prejudice to the Trustee’s position in this regard, the Trustee’s instruction to Mr. Linds was that the Trustee had no interest in the outcome of the determination and Mr. Linds should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds is not proportionate given that it is not relevant to the determination.
i. To advise whether anything was discussed outside the scope of Mr. Linds’s reports during the preparatory meeting with Davies and KSV. Refused. The Trustee’s communications with Mr. Linds are not relevant to the determination. Without prejudice to the Trustee's position in this regard, the Trustee’s instruction to Mr. Linds was that the Trustee had no interest in the outcome of the determination and Mr. Linds should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds is not proportionate given that it is not relevant to the determination.
j. To produce all emails exchanged between Mr. Linds and Mr. Finnegan in the course of preparing the 2026 Appraisal Report. Refused. The communications between Mr. Linds and Mr. Finnegan are not relevant to the determination. Without prejudice to the Trustee’s position in this regard, the Trustee’s instructions to Mr. Linds and Mr. Finnegan were that the Trustee had no interest in the outcome of the determination and Mr. Linds and Mr. Finnegan should provide their unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Linds and Mr. Finnegan is not proportionate given that these communications are not relevant to the determination.
k. To produce all communications between Mr. Finnegan and the Trustee or Davies regarding Mr. Finnegan’s March 2, 2026 Report, including notes of any phone calls that may have occurred. Refused. The Trustee's communications with Mr. Finnegan are not relevant to the determination. Without prejudice to the Trustee’s position in this regard, the Trustee’s instruction to Mr. Finnegan was that the Trustee had no interest in the outcome of the determination and Mr. Finnegan should provide his unbiased opinion regardless of what it might be. Moreover, the significant time and expense that would be required to review and produce all communications with Mr. Finnegan is not proportionate given that it is not relevant to the determination.
[46] During oral argument it was confirmed that if these questions were answered they would cover the disclosure that Ms. Athanasoulis seeks from the Trustee. The Trustee is ordered and directed to obtain answers to these questions, either through a review of their own and their counsel’s records or through a request for production of these records directly from the experts, whichever is the most expeditious and least expensive manner of obtaining these records and the requested information and providing the responses, with redactions as appropriate (as outlined above, to remove any disclosures about the Trustee’s strategy, tactics or decision-making process.
[47] As to timing, the court inquired at the conclusion of the hearing and was assured that if the court’s decision were released within two weeks (this is under that time frame) counsel will be able to work out a timetable for review, redaction and production as needed to ensure production in time for the exchange of the remaining material for the appeal proceeding on October 21, 2026, after these questions have been answered. The expectation is that this review and production can be done within a couple of weeks, or that the rolling production should at the very least begin then, to enable the parties to agree upon a timetable for what remains to be done.
[48] I hasten to add that I wholeheartedly endorse, and this decision is not intended and should not be taken to detract from, the following comments of Myers J. in Wigi Restructured Bond Corporation v. 1000234566 Ontario Inc. et al. (July 17, 2026) Toronto, CV-26-0000795400CL, at paras. 7-9:
In normal civil litigation the two protagonists can decide if they want to endure the cost and delay of the process. They can always settle if they chose to do so. But other creditors in an insolvency should not be forced to endure an endless litigation inquiry into every possible cause of action, discovery of every possible marginally relevant document, every question that can possibly be asked on oral discovery, months of undertaking fulfilment, more months of refusals motions, and yet further rounds of oral examination.
The claims process requires claimants to deliver evidence with their Proofs of Claim. A claimant who submits that they need more procedural protections to have a fair hearing is free to ask the claims officer for what it wants. The claims officer will make a reasoned and reasonable response bearing in mind that (a) a claims process is among the most summary litigation processes for the reasons set out above; and (b) the process must still meet the requirements of natural justice and fairness.
But, to be clear, a claims process is not like a piece of civil litigation before the court. It must be quick and practical. There are too many innocent third-party interests, including the public interest in avoiding the devastation of bankruptcy, to allow any one claim to hijack a proceeding and delay realization for all.
[49] Ms. Athanasoulis’s Profit Share Claim and the process for dealing with it is unusual. For various reasons, including specific decisions made and positions taken by the Trustee, and appeals that it and Ms. Athanasoulis have pursued, this case has not been an exemplary playbook for how to achieve the laudable objectives that Wigi reminds us should be the gold standard governing how claims in bankruptcy proceedings should be determined and valued.
[50] I do not fault the Trustee for the decisions made, positions taken and appeals it has pursued, nor do I fault Ms. Athanasoulis for how she has conducted herself. However, the course of proceedings in this case has taken it out of the realm of a “normal” claims process. Unfortunately, and without laying the blame for this on any participant, the Athanasoulis Claim has already hijacked this insolvency proceeding and delayed realization for all. We are well beyond having a quick and practical determination of the Profit Share Claim, but we are still to be guided with that goal in mind as we work through the remaining appeal process as expeditiously as possible.
Costs
[51] At the conclusion of the hearing, it was agreed that the costs of this motion would be deferred to be determined in the context of the overall costs of the appeal.
Kimmel J.
Date: August 7, 2026
1Ms. Athanasoulis and the Trustee agreed to and embarked upon a phased arbitration process without the approval and support of the Sponsor, Concord Properties Developments Corp. After phase one of the arbitration concluded, the Sponsor became aware of the anticipated procedure and associated costs and objected to funding the second phase that was intended to determine the Athanasoulis Claim. The court agreed that the Sponsor was not obligated to do so and provided orders and directions for the procedure by which the Athanasoulis Claim should be determined in the absence of the Sponsor’s agreement to fund the private arbitration process: See YG Limited Partnership (Re), 2022 ONSC 6138, 5 C.B.R. (7th) 389, and subsequent procedural directions and orders.
2The SCC leave decision was released on July 30, 2026, after this motion was argued.