Ontario Civil

Civil Procedure

Withdrawal of portion of affidavit not permitted so as to avoid cross-examination

Dissatisfied shareholders attended traded corporation’s annual general meeting (“AGM”) with proxies purportedly sufficient to reject management’s proposed slate of directors. Corporation’s transfer agent disallowed proxies to extent quorum requirements of corporation’s by-law not met. Corporation and shareholders commenced proceedings, including for oppression remedies. Cross-examinations on affidavits conducted. One shareholder’s affidavit included statement he “received legal advice to that effect”. Corporation alleged shareholder voluntarily waived privilege, and demanded production of documents relating to legal advice to applicants. Shareholder moved to withdraw portion of affidavit. Withdrawal motion denied. Language intentionally included. No inadvertence, mistake or oversight. Withdrawal not permitted so as to avoid cross-examination. Corporation’s production demand allowed. Obvious waiver of privilege. Shareholder had legal advice available when swore affidavit. No unfairness in holding affiant to what sworn. Corporation’s production demand beyond scope of disputed paragraph. Shareholder ordered to re-attend for further cross-examination. Thirty-minute time-limit imposed. Corporation’s motion to compel answers to questions about proxies submitted to AGM denied. Corporation’s motion to compel answers to questions about shareholder’s investment portfolio and business transactions denied. Corporation’s motion to compel answers to questions about shareholder’ alleged joint action with individual regarding corporation and other investments individual denied. Individual let out of application. Allegations related only to corporation, not other investments. Shareholders’ motion to compel production of individual’s employment agreement denied. Reference to “golden parachute” in notice of application insufficient to establish link between individual’s employment and relief sought. Shareholders’ motion to compel answers to questions regarding director’s quorum-related feelings denied. No probative value. Shareholders’ motion to compel production of correspondence draft report from corporation’s expert allowed. By tendering expert, corporation waived litigation privilege over documentation between expert and corporation’s counsel. Expert ordered to attend for further cross-examination.

Ebrahim v. Continental Precious Minerals Inc.

(Feb. 17, 2012, Ont. S.C.J. (Comm. List), Brown J., File No. CV-11-9446-00CL; CV-11-9520-00CL) 213 A.C.W.S. (3d) 361 (21 pp.).

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