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Appeal - Evidence - Third Party. Kideckel v. Kideckel
In Kideckel v. Kideckel (Ont CA, 2025) the Ontario Court of Appeal dismissed several appellant-defendant motions in a defaulted defamation action context.
The court denies non-party discovery orders, here in this appeal context:a. The Production Requests
[8] Brent seeks production orders against two non-parties (collectively, the “Non-Party Production Requests”), as follows:(i) an order against Google LLC to produce data from Brent’s email account between January and May 2024; and
(ii) an order compelling Scalzi Caplan to produce any retainer agreement authorizing Simovonian to act for any party in David’s Action or, alternatively, a sworn affidavit confirming whether any such retainer ever existed. [9] Brent seeks this evidence since he believes it will support his claim that he was never served with the statement of claim in David’s Action and that David’s counsel Simovonian was not properly retained and thus every action he took was ultra vires. Once he obtains this evidence, he intends to bring a fresh evidence motion in his appeal of the July 25, 2025 Judgment. Brent submits that the legal basis for the Non-Party Production Requests is this court’s decision in R. v. Jaser, 2023 ONCA 24, where the court granted a production order in anticipation of a fresh evidence motion in a criminal appeal.
[10] The Non-Party Production Requests are without merit for a variety of reasons.
[11] First, Brent has not identified any legal basis for the Non-Party Production Requests. Jaser was an appeal of a conviction under the Criminal Code, R.S.C. 1985, c. C-46, which provides specific authority for a court of appeal to order the production of documents or to compel examinations of witnesses in certain circumstances: see s. 683(1)(a) of the Criminal Code.
[12] There is no comparable provision in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for civil appeals. To be sure, r. 30.10 sets out a procedure for ordering production of documents from non-parties where it would otherwise be unfair to require the moving party “to proceed to trial”. But r. 30.10 has no application in the context of an appeal. Absent an order admitting fresh evidence (no such order having been sought or made in this appeal) the appeal proceedings will be based on the evidentiary record at the hearing below.
[13] Quite apart from the fact that there is no legal basis for the Non-Party Production Requests, Brent has not served the relevant Request on Google and it is not clear why Brent requires a court order to obtain data relating to Brent’s own email account. Moreover, the retainer agreement sought from Scalzi Caplan is presumptively privileged and Brent has not pleaded or argued any basis to interfere with that privilege beyond his unsupported claim that the judgment was obtained by fraud. In any event, Brent has not established the relevance of any such retainer agreement to the issues on appeal in this proceeding.[1]
[14] The Non-Party Production Requests are therefore dismissed.
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