|
Civil Litigation Dicta - Discovery - Documentary - Third Parties. 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. . Bayliss v. Burnham [third party: R30.10]
In Bayliss v. Burnham (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal from "an order for production of documents by a non-party pursuant to Rule 30.10" in estate litigation:[3] ... Although GRE is a non-party to the litigation, in the Moving Parties’ submission, production of its financial records was necessary because the GRE shares were the estate’s largest asset and disclosure was required to enable accurate dependency claims. Further, the complexity of the estate’s assets and their value would assist in determining the validity of the deceased’s last will, a question that is scheduled to go to trial in September 2024.
[4] GRE opposed the motion for production, arguing that disclosure of its financial information would be detrimental and prejudicial to GRE and that this information has never been publicly disclosed.
[5] The motions judge, who was case managing the matter, granted the order requested by the Moving Parties. She ordered GRE to produce financial statements and any other documents reasonably required by valuators to prepare a valuation of the deceased’s 12.5% interest in GRE. Working with the parties, she also established a Confidentiality Protocol to ensure that the documents produced would remain confidential.
[6] Counsel for the appellant raised several arguments in her written submissions and during oral argument. It is unnecessary to outline each submission in detail. Suffice to say, the crux of GRE’s appeal is that the motions judge misapplied the test under r. 30.10 at both the relevance and fairness stages.[4]
[7] The motions judge’s discretionary decision is entitled to deference, and we see no basis to interfere with it. The motions judge found that the documents sought were relevant to a material issue in the action and that it would be unfair to require the Moving Parties to proceed to trial without them. In reaching this decision, the motions judge considered the factors relevant to determining a production motion set out in Ontario (Attorney General) v. Stavro (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39, at pp. 48-49.
[8] The motions judge began her analysis by recognizing that the standard for relevance of documents is elevated when they are in the hands of a non-party. At the first stage of her analysis, the motions judge concluded that “[t]he GRE shares are an asset of the Estate and must be valued like any other asset” as the value of the shares would go to “the very heart” of the triable question of whether the deceased’s last will makes testamentary sense.
[9] At the second stage of her analysis, the motions judge determined that disclosure was required for fairness to the Moving Parties. She reasoned that: the trial would inevitably be adjourned if the documents were produced at trial; the information sought could be obtained from no other source; and GRE had a connection to the litigation as the deceased had been referred to as the “face” of the company.
[10] In sum, the motions judge found that the Moving Parties had met their burden under r. 30.10. Respectfully, GRE’s submissions on this appeal are attempts to reargue the issues that were comprehensively dealt with by the motions judge in her reasons. Concerns about business interests, privacy, and safety could be, and in our view were, addressed through the Confidentiality Protocol.
....
[12] We also disagree with the appellant’s submission that the motions judge’s order is overbroad because it permits a valuator to determine which documents will be required to complete the valuation. On a r. 30.10 motion the motions judge has discretion to tailor the order as necessary. This is especially so given the motions judge was also case managing this litigation and was in a superior position than this court to determine what was required to ensure fairness to the parties: see Stavro, at p. 47. We see no error in her decision to allow a valuator to determine which specific additional documents may be necessary to complete their task. The motions judge specifically ordered that the valuator must act “reasonably” and we do not interpret her order as permitting a “fishing expedition”. If there are issues with the reasonableness of the valuator’s requests, we are confident that the parties will return to the motions judge in her capacity as the case management judge to make submissions as to whether her order is being complied with.
|
