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NWT Financial Services LTD. et al v Sundberg, 2019 NWTSC 24

S-1-CV-2016-000117

 

 

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

BETWEEN

 

 

NWT FINANCIAL SERVICES LTD., and BARRY TALBOT

Plaintiffs

 

- and -

 

 

COROL SUNDBERG

Defendant

_________________________________________________________ Transcript of the Reasons for Decision delivered by The Honourable Justice S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 30th day of November, 2018.

_________________________________________________________

 

 

APPEARANCES:

 

 

Ms. M. Leduc:                 Counsel for the Plaintiffs

Mr. D. McNiven:               Counsel for the Defendant


 

1            THE COURT:             There are two applications

2                    before the Court.  The first is a Notice of

3                    Motion filed by the Plaintiffs seeking that the

4                    Defendant provide answers to the requested

5                    undertakings pursuant to Rule 261.  And Rule 261

6                    of the Rules of the Supreme Court of the

7                    Northwest Territories states that:

8                             Where a party undertakes at an examination for discovery to obtain

9                             information needed to answer a question, the answer shall be

10                             provided in a timely manner.

11                   The second application is a Notice of Motion

12                   filed by the Defendant seeking that the Plaintiff

13                   be compelled to answer certain questions from the

14                   examination for discovery and directing that the

15                   Plaintiff provide further or better responses to

16                   certain undertakings.

17                             Dealing first with the application of the

18                   Plaintiffs, the Plaintiff says that the

19                   Defendant, Corol Sundberg, was examined for

20                   discovery on October 24th, 2017, and

21                   13 undertakings were requested.

22                             Counsel for the Plaintiffs wrote counsel for

23                   the Defendant on January 15th, 2018; February

24          21st, 2018; May 11, 2018; June 18, 2018; June 28,

25                   2018; and October 2nd, 2018, requesting that the

26                   Defendant provide answers to the undertakings.

27                   In the last letter, the counsel advised that an


 

1                    application would be brought if the answers to

2                    the undertakings remained outstanding on

3          October 5th.  According to the Affidavit of

4                    Mr. Talbot, as of October 10th, the answers to

5                    the undertakings were still outstanding.

6                             The Defendant filed an affidavit in

7                    response, which states that she provided a

8                    detailed list of answers on a flash drive, which

9                    was provided to the Plaintiffs on October 3rd,

10          2018.

11                             At the date of the hearing, the Plaintiff

12                   advised that the answers to undertakings were

13                   responded to on October 10th and were incomplete

14                   with Undertaking 11 and 13 being missing.

15                   Undertaking 11 was to provide handwritten notes

16                   of telephone calls with clients who had switched

17                   to CAM Financial.  The Affidavit of the Defendant

18                   addresses this issue and states that she forgot

19                   to include this answer, the answer being that she

20                   had searched and did not have any such notes.

21                             Undertaking 13 was to produce all income tax

22                   returns with attachments and slips for the period

23                   2006 to current.  At the hearing, counsel for the

24                   Defendant advised that Ms. Sundberg would produce

25                   the tax information as soon as possible, but that

26                   she did not -- he was not sure that she had

27                   records going back to 2006.  And I am advised


 

1                    that that has occurred.  So I am not certain if

2                    an order is necessary; but, if it is, there will

3                    be an order that the Defendant produce any

4                    outstanding answers to undertakings within

5                    60 days.

6                             Turning now to the Defendant's application,

7                    the Defendant's application seeks that Mr. Talbot

8                    produce a business valuation for the business,

9                    NWT Financial Services; Mr. Talbot's tax return

10                   information from 2010 to 2016; and the Manulife

11                   financial contract.

12                             With respect to the business valuation, the

13                   Defendant has produced correspondence from

14                   Mr. Talbot's lawyer showing that the lawyer had

15                   written to Mr. Talbot's ex-wife on two occasions

16                   to request a copy of the valuation, she

17                   apparently, having a copy and Mr. Talbot not

18                   having a copy.  The Defendant argues that

19                   Mr. Talbot should make further efforts to obtain

20                   the business valuation.

21                             With respect to the tax returns, the

22                   Defendant says that Mr. Talbot was asked at his

23                   discovery for the tax return information and this

24                   was refused.

25                             And, as for the Manulife financial contract,

26                   this had been requested during the examination

27                   for discovery but had not been produced.  There


 

1                    is also a reference in the Notice of Motion to

2                    producing diary notes.

3                             At the hearing, counsel advised that the

4                    Manulife contract had been produced and the diary

5                    notes issue had been dealt with.

6                             With respect to the business valuation, it

7                    appears that this valuation was commissioned

8                    during Mr. Talbot's divorce as it was an asset

9                    that had to be determined as part of the divorce

10                   settlement.  It may have been commissioned by

11                   Mr. Talbot's ex-spouse, and he apparently does

12                   not have or did not retain a copy of the

13                   valuation.  It is not clear, from the record,

14                   whether other individuals, like the creator of

15                   the valuation or Mr. Talbot's divorce lawyer,

16                   might have a copy of it.  There is also a

17                   reference in the materials to an undertaking that

18                   Mr. Talbot may have entered into during his

19                   divorce with respect to the business valuation.

20                             The circumstances surrounding the creation

21                   and the retention of the business valuation are

22                   murky and unclear, and I have very little

23                   information about it.  Clearly, Mr. Talbot can

24                   only produce what is in his possession or what he

25                   is legally able to obtain.

26                             It appears that Mr. Talbot's counsel wrote

27                   to Mr. Talbot's ex-spouse on two occasions


 

1                    requesting a copy of the valuation, and she did

2                    not respond.

3                             The last letter that has been provided is

4                    dated February 21st, 2018, written by

5                    Mr. Talbot's counsel to the ex-spouse.  It is not

6                    clear what other efforts may have been made by

7                    counsel or Mr. Talbot himself to obtain the

8                    business valuation.

9                             In the circumstances, I am going to order

10                   that the Plaintiffs provide the Defendant with an

11                   explanation of the efforts made to obtain the

12                   business valuation, the explanation to include

13                   efforts by counsel for Mr. Talbot, and Mr. Talbot

14                   personally to obtain the business valuation.

15                             With respect to the tax returns, this was

16                   addressed at examination for discovery.  Counsel

17                   for the Defendant sought income tax returns from

18                   2010 to 2016.  Counsel for Mr. Talbot refused to

19                   produce them claiming that they were not

20                   relevant.  So this is not a situation where

21                   Mr. Talbot has failed to comply with an

22                   undertaking arising from examination for

23                   discovery.

24                             Compelling a party to provide documents that

25                   they have objected to providing is governed by

26                   Rule 226 of the Rules of Court, and a Court may

27                   order that a party make production of documents


 

1                    where the party has neglected or refused to make

2                    discovery or production of the document.  The

3                    objection made by the Plaintiffs to the

4                    production of these documents is that the income

5                    tax returns are not relevant.

6                             As stated in the FDA Engineering Ltd. and

7                    Aboriginal Engineering Ltd. case, 2014 NWTSC 27,

8                    at paragraphs 23, 24:

9                             There are, of course, limits to the scope of questions that can be asked

10                             in an examination for discovery. When a question is objected to,

11                             inevitably, the Court, in deciding on the validity of the objection, must

12                             consider the issue from the point of view of relevance, in the context of

13                             the pleadings.  If the information sought is clearly irrelevant to the

14                             action, there is no reason to compel a party to produce it.             At the same

15                             time, the Court’s task is not, at that stage, to decide ultimate

16                             relevancy or the weight that the evidence will carry in the

17                             determination of the issues.

18                             This Court has recognized the broad scope to the issue of relevance in

19                             the context of discovery processes.

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21                   In that decision, the Court cited with approval

22                   the proposition that great latitude should be

23                   allowed in the examination for discovery process

24                   so that the fullest inquiry can be made into all

25                   matters which can possibly affect the issues

26                   between the parties.

27                             The issue of relevance is to be considered


 

1                    broadly at this stage and in the context of the

2                    pleadings.  I have reviewed the pleadings in this

3                    matter as well as the affidavits that have been

4                    filed on the applications.

5                             The Statement of Claim of the Plaintiffs

6                    claims that the actions of the Defendant have

7                    resulted in ongoing damages to revenues and

8                    losses of commissions, and the Plaintiffs are

9                    seeking damages for loss of business opportunity.

10                             The ultimate relevance of the income tax

11                   returns that are sought is not an issue that is

12                   for me to decide, but there is a possibility that

13                   the income tax returns could be relevant in

14                   determining those issues referred to in the

15                   Statement of Claim.  As such, I am ordering that

16                   the Plaintiffs produce the income tax returns for

17                   the years 2010 to 2016 inclusive, and that will

18                   be within 60 days.

19                             With respect to costs, as each party was

20                   successful on their application, success was

21                   divided; therefore, I am not going to make an

22                   order for costs.

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1                  CERTIFICATE OF TRANSCRIPT

2

3                    I, the undersigned, hereby certify that the

4            foregoing transcribed pages are a complete and

5            accurate transcript of the digitally recorded

6            proceedings taken herein to the best of my skill and

7            ability.

8                    Dated at the City of Edmonton, Province of

9                    Alberta, this 27th day of June, 2019.

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11                             Certified Pursuant to Rule 723

12                             of the Rules of Court

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14                             __________________________

15                                                          Janet Belma, CSR(A), B.Ed.

16                                                          Court Reporter

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