On January 05, 2023 a
Exhibit,Appendix
was filed
involving a dispute between
Dan Albasry
As Trustee Of The Estate Of Newal Al Saad,
Firas Mohammad,
and
Barretts Minerals Inc.,
Beacon Cmp Corp.,
Brenntag Specialties Llc,
Charles B. Chrystal Company Inc.;,
Colgate Palmolive Co.;,
Conopco Inc.,
Glaxosmithkline Consumer Healthcare Holdings,
Glaxosmithkline Llc,
Gsk Consumer Health Inc.,
Lornamead Inc.,
Pfizer Inc.,
Port Jervis Laboratories Inc.,
The Procter & Gamble Co.,
Whittaker, Clark & Daniels Inc.,
Yardley Of London Inc.,
Yardley Of London Ltd.,,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023
EXHIBIT 54
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023
COURT FILE NO.: 334/06
DATE: 20060825
ONTARIO
2006 CanLII 29528 (ON SC)
SUPERIOR COURT OF JUSTICE
B E T W E E N: )
)
TRIBAX MANAGEMENT LIMITED and ) Patrick Schindler, for the non-parties Gord
DIBAX LIMITED ) Wengler, Sagitta Development &
) Management Inc. and Hanfrow Holdings
) G.P. Inc.
Plaintiffs (Respondents) ) Lloyd Cadsby, Q.C., for the Plaintiffs
) (Respondents), Tribax Management Limited
) and Dibax Limited and Mayfair Realty Inc.
- and - )
)
)
LASWIND INVESTMENT LIMITED, ) D. Barry Prentice, for the Defendants,
SHARICO HOLDINGS, TIMRON ) Timron Investments Limited, Laswind
INVESTMENTS LIMITED, SAGITTA ) Investments Limited, Sharico Holdings
DEVELOPMENT AND MANAGEMENT ) Limited, Amirali D. Dharani, Madat Shariff
INC., AMIRALI D. DHARANI, MADAT ) and Abdullah R. Haswani
SHARIFF and ABDULLAH R. HASWANI )
) Lloyd Hoffer, for the Defendant, Jack
) Greenberg
Defendants )
)
) HEARD: August 21, 2006
SACHS J.
INTRODUCTION
[1] The Appellants on this appeal are not parties to the main action. They appeal from a
Master’s order whereby:
1. They were required to produce certain documents to the Plaintiffs/Respondents; and
2. The Respondents were given leave to examine Gord Wengler, the president of the
Appellants, for discovery.
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023
Page: 2
OVERVIEW OF THE FACTUAL BACKGROUND
[2] The action arises out of a joint venture agreement. The joint venture owned two
2006 CanLII 29528 (ON SC)
apartment buildings. Title to the properties was held by a bare trustee, Timron. In March of 2002,
Timron agreed to sell the properties to Sagitta. The Respondents, who owned 24 of the 54 units
in the joint venture, objected to the sale and commenced this action. Originally, Sagitta was a
party to the action. An injunction application to stop the sale to Sagitta from closing was heard
and dismissed by Pepall J. in June of 2002. After the sale closed, the Respondents discontinued
the action as against Sagitta.
[3] In the action, the Respondents claim damages based on what they say the price for the
properties would have been if they had been exposed for sale on the open market instead of
having been sold to Sagitta. The action is set for trial on September 18, 2006 for an estimated six
to eight weeks.
[4] The Respondents brought the motion giving rise to this appeal in the spring of 2006, well
after the trial date was set and after all discoveries were completed and a pretrial held. According
to counsel for the Respondents, the motion was precipitated by the fact that in January of 2006
the Respondents found out that the properties had been rezoned in December of 2005, thereby,
according to the Respondents, dramatically increasing their value. The main purpose of the order
is to find out what Sagitta knew about the rezoning potential of the properties when they
persuaded Timron to accept their offer and to find out what other information or opinions Sagitta
had that affected its assessment of the value of the property when they offered to purchase the
property in 2002.
THE LAW
[5] Rule 30.10 provides the authority for ordering production of a document from a non-
party and Rule 31.10 provides the authority for granting leave to discover a non-party. The law
under both Rules is clear that:
1. Orders for production from or discovery of non-parties are the exception, not the norm;
and
2. No such orders are to be granted unless the Court has evidence that the information
sought is “relevant to a material issue in the action”. The test of relevancy in these rules is
higher than that relating to obtaining production from a party to the action. (Lowe et al v.
Motolanez et al, 30 O.R. (3d) 408, (C.A.) at 413).
ANALYSIS
[6] As articulated by the Respondents in their factum, the information they are seeking from
the non-party is relevant for the following reasons:
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023
Page: 3
“The information and opinions of Sagitta and Hanfrow which ultimately took title
to the property, with respect to the value of the property including its potential for
rezoning at the time they investigated the possible purchase of the property,
2006 CanLII 29528 (ON SC)
constitute material relevant information with respect to the opinion of Sagitta as a
sophisticated apartment building owner of the value of that property in 2002. This
information would be material to the Court’s ultimate decision as to whether the
property was sold to Sagitta at less than market value and in an appropriate
manner.”
[7] The Respondents were clear in argument that they were not seeking to have Sagitta’s
opinion as to the value of the property admitted as expert evidence in the action. Given this, I can
see no basis upon which the evidence of Sagitta’s opinion as to the value of the property in 2002
would be admissible and therefore relevant at trial.
[8] The Respondents asserted that Sagitta’s opinion as to the value of the property at the time
was the best evidence as to the amount that a sophisticated purchaser would have been willing to
pay for the property. With respect, I disagree. The best and admissible way to put the evidence of
what the fair market value of the property was at the time is through expert evidence. The
Respondents advised that they had retained experts to speak to this issue.
[9] A further problem with the Master’s order is that there was no evidence before him to
suggest that Sagitta had opinions as to the fair market value of the property that they relied on in
making their offer in 2002. In fact, the evidence was to the effect that the offer was made based
on Sagitta’s assessment of what return they could get for their investment from the property.
Therefore, there was no evidence before the Master that Sagitta had a document or documents
that were relevant to a material issue in the action or that Mr. Wengler had information relevant
to a material issue in the action. The Rules are not designed to be used as a fishing expedition.
[10] I also note that in 2002, while Sagitta was still a party to the action, Mr. Wengler swore
an Affidavit dealing with the items that Sagitta took into account in making their offer and
offered to provide the Respondents with the information and documentation Sagitta obtained
during their due diligence review of the properties. The Respondents did not cross-examine on
the Affidavit, nor did they take Sagitta up on its offer to review the documentation. It is now over
4 years later and the matter is set for trial in less than a month. Sagitta is no longer a party to the
action. Under both Rules 30.10 and 31.10 the moving party has the burden of satisfying the
Court that it would be unfair to require the moving party to proceed to trial without the
disclosure requested. In this case, the record did not contain any evidence that discharged that
burden. In fact, the evidence was to the contrary. When the Respondents were in a position to
obtain the evidence, they did not see it as necessary to do so. The effect of the orders is to draw
Sagitta back into litigation that it has not been part of for over 4 years and to create the risk that a
trial, which has been set for over 2 years, may have to be adjourned. The fact that the property
was rezoned in December of 2005 may or may not be material to the value of the property in
2002. However, if it was, that evidence can and should be dealt with through expert opinions.
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023
Page: 4
CONCLUSION
[11] For these reasons, I find that the Master clearly erred when he granted the orders at issue
2006 CanLII 29528 (ON SC)
and I order that those orders be set aside. The parties may address me in writing on the question
of costs within 14 days of the release of these reasons.
___________________________
SACHS J.
Released: August 25, 2006
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023
COURT FILE NO.: 334/06
DATE: 20060825
ONTARIO
2006 CanLII 29528 (ON SC)
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TRIBAX MANAGEMENT LIMITED and DIBAX
LIMITED
Plaintiffs (Respondents)
- and -
LASWIND INVESTMENT LIMITED, SHARICO
HOLDINGS, TIMRON INVESTMENTS
LIMITED, SAGITTA DEVELOPMENT AND
MANAGEMENT INC., AMIRALI D. DHARANI,
MADAT SHARIFF and ABDULLAH R.
HASWANI
Defendants
REASONS FOR JUDGMENT
SACHS J.
Released: August 25, 2006
Preview
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023 EXHIBIT 54 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023 COURT FILE NO.: 334/06 DATE: 20060825 ONTARIO 2006 CanLII 29528 (ON SC) SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) TRIBAX MANAGEMENT LIMITED and ) Patrick Schindler, for the non-parties Gord DIBAX LIMITED ) Wengler, Sagitta Development & ) Management Inc. and Hanfrow Holdings ) G.P. Inc. Plaintiffs (Respondents) ) Lloyd Cadsby, Q.C., for the Plaintiffs ) (Respondents), Tribax Management Limited ) and Dibax Limited and Mayfair Realty Inc. - and - ) ) ) LASWIND INVESTMENT LIMITED, ) D. Barry Prentice, for the Defendants, SHARICO HOLDINGS, TIMRON ) Timron Investments Limited, Laswind INVESTMENTS LIMITED, SAGITTA ) Investments Limited, Sharico Holdings DEVELOPMENT AND MANAGEMENT ) Limited, Amirali D. Dharani, Madat Shariff INC., AMIRALI D. DHARANI, MADAT ) and Abdullah R. Haswani SHARIFF and ABDULLAH R. HASWANI ) ) Lloyd Hoffer, for the Defendant, Jack ) Greenberg Defendants ) ) ) HEARD: August 21, 2006 SACHS J. INTRODUCTION [1] The Appellants on this appeal are not parties to the main action. They appeal from a Master’s order whereby: 1. They were required to produce certain documents to the Plaintiffs/Respondents; and 2. The Respondents were given leave to examine Gord Wengler, the president of the Appellants, for discovery. FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023 Page: 2 OVERVIEW OF THE FACTUAL BACKGROUND [2] The action arises out of a joint venture agreement. The joint venture owned two 2006 CanLII 29528 (ON SC) apartment buildings. Title to the properties was held by a bare trustee, Timron. In March of 2002, Timron agreed to sell the properties to Sagitta. The Respondents, who owned 24 of the 54 units in the joint venture, objected to the sale and commenced this action. Originally, Sagitta was a party to the action. An injunction application to stop the sale to Sagitta from closing was heard and dismissed by Pepall J. in June of 2002. After the sale closed, the Respondents discontinued the action as against Sagitta. [3] In the action, the Respondents claim damages based on what they say the price for the properties would have been if they had been exposed for sale on the open market instead of having been sold to Sagitta. The action is set for trial on September 18, 2006 for an estimated six to eight weeks. [4] The Respondents brought the motion giving rise to this appeal in the spring of 2006, well after the trial date was set and after all discoveries were completed and a pretrial held. According to counsel for the Respondents, the motion was precipitated by the fact that in January of 2006 the Respondents found out that the properties had been rezoned in December of 2005, thereby, according to the Respondents, dramatically increasing their value. The main purpose of the order is to find out what Sagitta knew about the rezoning potential of the properties when they persuaded Timron to accept their offer and to find out what other information or opinions Sagitta had that affected its assessment of the value of the property when they offered to purchase the property in 2002. THE LAW [5] Rule 30.10 provides the authority for ordering production of a document from a non- party and Rule 31.10 provides the authority for granting leave to discover a non-party. The law under both Rules is clear that: 1. Orders for production from or discovery of non-parties are the exception, not the norm; and 2. No such orders are to be granted unless the Court has evidence that the information sought is “relevant to a material issue in the action”. The test of relevancy in these rules is higher than that relating to obtaining production from a party to the action. (Lowe et al v. Motolanez et al, 30 O.R. (3d) 408, (C.A.) at 413). ANALYSIS [6] As articulated by the Respondents in their factum, the information they are seeking from the non-party is relevant for the following reasons: FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023 Page: 3 “The information and opinions of Sagitta and Hanfrow which ultimately took title to the property, with respect to the value of the property including its potential for rezoning at the time they investigated the possible purchase of the property, 2006 CanLII 29528 (ON SC) constitute material relevant information with respect to the opinion of Sagitta as a sophisticated apartment building owner of the value of that property in 2002. This information would be material to the Court’s ultimate decision as to whether the property was sold to Sagitta at less than market value and in an appropriate manner.” [7] The Respondents were clear in argument that they were not seeking to have Sagitta’s opinion as to the value of the property admitted as expert evidence in the action. Given this, I can see no basis upon which the evidence of Sagitta’s opinion as to the value of the property in 2002 would be admissible and therefore relevant at trial. [8] The Respondents asserted that Sagitta’s opinion as to the value of the property at the time was the best evidence as to the amount that a sophisticated purchaser would have been willing to pay for the property. With respect, I disagree. The best and admissible way to put the evidence of what the fair market value of the property was at the time is through expert evidence. The Respondents advised that they had retained experts to speak to this issue. [9] A further problem with the Master’s order is that there was no evidence before him to suggest that Sagitta had opinions as to the fair market value of the property that they relied on in making their offer in 2002. In fact, the evidence was to the effect that the offer was made based on Sagitta’s assessment of what return they could get for their investment from the property. Therefore, there was no evidence before the Master that Sagitta had a document or documents that were relevant to a material issue in the action or that Mr. Wengler had information relevant to a material issue in the action. The Rules are not designed to be used as a fishing expedition. [10] I also note that in 2002, while Sagitta was still a party to the action, Mr. Wengler swore an Affidavit dealing with the items that Sagitta took into account in making their offer and offered to provide the Respondents with the information and documentation Sagitta obtained during their due diligence review of the properties. The Respondents did not cross-examine on the Affidavit, nor did they take Sagitta up on its offer to review the documentation. It is now over 4 years later and the matter is set for trial in less than a month. Sagitta is no longer a party to the action. Under both Rules 30.10 and 31.10 the moving party has the burden of satisfying the Court that it would be unfair to require the moving party to proceed to trial without the disclosure requested. In this case, the record did not contain any evidence that discharged that burden. In fact, the evidence was to the contrary. When the Respondents were in a position to obtain the evidence, they did not see it as necessary to do so. The effect of the orders is to draw Sagitta back into litigation that it has not been part of for over 4 years and to create the risk that a trial, which has been set for over 2 years, may have to be adjourned. The fact that the property was rezoned in December of 2005 may or may not be material to the value of the property in 2002. However, if it was, that evidence can and should be dealt with through expert opinions. FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023 Page: 4 CONCLUSION [11] For these reasons, I find that the Master clearly erred when he granted the orders at issue 2006 CanLII 29528 (ON SC) and I order that those orders be set aside. The parties may address me in writing on the question of costs within 14 days of the release of these reasons. ___________________________ SACHS J. Released: August 25, 2006 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/10/2023 COURT FILE NO.: 334/06 DATE: 20060825 ONTARIO 2006 CanLII 29528 (ON SC) SUPERIOR COURT OF JUSTICE B E T W E E N: TRIBAX MANAGEMENT LIMITED and DIBAX LIMITED Plaintiffs (Respondents) - and - LASWIND INVESTMENT LIMITED, SHARICO HOLDINGS, TIMRON INVESTMENTS LIMITED, SAGITTA DEVELOPMENT AND MANAGEMENT INC., AMIRALI D. DHARANI, MADAT SHARIFF and ABDULLAH R. HASWANI Defendants REASONS FOR JUDGMENT SACHS J. Released: August 25, 2006