CITATION: F.K. Machinery Limited v. Exxonmobile Canada Products Ltd., 2022 ONSC 3357  
COURT FILE NO.: CV-20-135  
DATE: 20220607  
SUPERIOR COURT OF JUSTICE - ONTARIO  
RE:  
F.K. Machinery Limited, Plaintiff  
AND:  
Exxonmobile Canada Products Ltd., Imperial Oil Limited, C & L Traders Inc.,  
1397663 Ontario Inc., Waryam M. Chaudhry and Robert (Bob) Clemmens  
BEFORE:  
Justice C. Boswell  
COUNSEL: Jennifer L. Siemon for the Plaintiff  
Muhammad Zafar for the Defendants, C & L Traders Inc., 1397663 Ontario Inc.,  
Waryam M. Chaudhry and Robert (Bob) Clemmens  
May 18, 2022  
HEARD:  
ENDORSEMENT ON UNDERTAKINGS AND REFUSALS MOTIONS  
[1]  
The plaintiff’s action is for damages for fraud and misappropriation. Exxonmobile and  
Imperial Oil have been let out of the lawsuit. The remaining defendants consist of a former  
employee of the plaintiff, Mr. Clemmens, and Mr. Chaudhry, who operates an Esso gas station in  
Bond Head through C & L Traders and the numbered company. I will refer to the latter three  
defendants as the “Chaudhry Defendants”.  
[2]  
The plaintiff is a distributor of janitorial, safety, maintenance, repair and production  
supplies. It has a fleet of trucks that deliver its products to customers. Those trucks need fuel.  
The plaintiff has a commercial account with Esso. Its drivers are supplied with “Speedpass”  
fobs that allow touchless payment at Esso gas pumps. During the time period in question, 2011-  
2017, the pumps at the Bond Head Esso did not have Speedpass technology, so anyone  
purchasing fuel there with a Speedpass had to enter the store to use it.  
[3]  
Mr. Clemmens was a driver of some 30 years seniority with the plaintiff. He is alleged to  
have participated in a fraudulent scheme with the Chaudhry defendants to misappropriate funds  
from the plaintiff. Specifically, it is alleged that he regularly purchased fuel from the Bond Head  
Esso and was, to his knowledge, regularly overcharged for that fuel. So much so, in fact, that  
according to the plaintiff’s calculations, it paid for some 98,000 litres of fuel it did not receive,  
between 2011 and 2017.  
[4]  
The value of the fuel overcharged is said to be $135,000. This case would, accordingly,  
be subject to the Simplified Rules, but for the fact that the plaintiff has also sought $100,000 in  
punitive damages, pushing it just above the $200,000 Simplified Rules ceiling. The amount in  
issue remains relatively modest by today’s litigation standards and will be of significance in  
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terms of fashioning a proportional disposition to some of the issues raised on the motions before  
the court.  
[5]  
Examinations for discovery were conducted between August 17 and September 2, 2021.  
The plaintiff examined Waryam Chaudhry on behalf of the Chaudhry defendants. The Chaudhry  
Defendants examined the plaintiff’s president, John Byles, on behalf of the plaintiff.  
[6]  
The examinations gave rise to numerous undertakings, refusals and questions taken under  
advisement on both sides. They also gave rise to competing allegations of improper and  
unprofessional conduct on the part of attending counsel.  
[7]  
The plaintiff moves for an order compelling Mr. Chaudhry to provide answers to 18  
undertakings, 6 refusals and 5 questions taken under advisement. Those latter 5 questions are  
deemed by r. 31.07(1)(b) of the Rules of Civil Procedure to be refusals because they were not  
answered within 60 days of being taken under advisement.  
[8]  
The plaintiff seeks an order that Mr. Chaudhry re-attend to answer questions properly  
arising from any answers compelled by the court. In addition to examining Mr. Chaudhry on  
questions arising from any compelled answers, the plaintiff seeks to conduct a further  
examination of Mr. Chaudhry at large. To that end, the plaintiff seeks leave to conduct another  
two to three hours of examination over and above the six hours conducted thus far.  
[9]  
The Chaudhry Defendants move for somewhat similar relief. They seek an order  
compelling Mr. Byles to provide answers to 4 undertakings, 4 questions taken under advisement  
and 31 refusals.  
[10] The Chaudhry Defendants also want to conduct further examinations. But rather than  
continue to examine Mr. Byles, they seek to examine a second representative on behalf of the  
plaintiff their chief financial officer Mike Palmer on the basis that Mr. Byles lacked  
sufficient awareness of the live issues in the case to make his examination meaningful.  
[11] This endorsement will proceed in three parts. In Part I, I will address the undertakings,  
refusals and questions taken under advisement by both sides. In Part II, I will address the  
plaintiff’s claim to have Mr. Chaudhry re-attend for further examination. Finally, in Part III, I  
will address the request of the Chaudhry Defendants for an opportunity to examine Mr. Palmer  
for discovery.  
Part I: The Undertakings and Refusals  
[12] For ease of reference, I have attached, as Appendix “A”, the Undertakings, Under  
Advisements and Refusals Chart relating to the plaintiff’s examination of Mr. Chaudhry. I have  
attached, as Appendix “B”, the Undertakings, Under Advisements and Refusals Chart relating to  
defence counsel’s examination of the plaintiff’s representative, Mr. Byles.  
[13] On each of the attached charts, I have endorsed my ruling in relation to each impugned  
question.  
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[14] My rulings are informed by the following applicable principles:  
(a) The Rules envision a broad scope for oral discovery. Rule 31.06 provides that a  
person examined for discovery is obliged to answer, to the best of his or her  
knowledge, information and belief, any proper question relevant to any matter in  
issue in an action;  
(b) The modern trend is in the direction of complete discovery. See General Accident  
Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321, [1999] O.J. No. 3291 (C.A.) per  
Carthy J.A. at para. 25;  
(c) As Rule 31.06 makes clear, relevance is the guiding standard;  
(d) Relevance does not exist in the abstract. It is about the relationship that an item of  
evidence has to one or more live issues in the case, as identified by the pleadings.  
See R. v. Wood, 2022 ONCA 87 at para. 60. Relevance is not a significant  
threshold. To be relevant, a document, or a question posed on examination for  
discovery must, as a matter of logic and human experience, make the existence of a  
fact in issue more or less likely. See R. v. Cloutier, [1979] 2 S.C.R. 709;  
(e) The requirement to answer all relevant questions and produce all relevant  
documents is tempered only by sustainable claims of privilege and the overarching  
requirement of proportionality, having regard to the importance and complexity of  
the issues and the amount involved in the proceeding. See r. 1.04(1.1);  
(f) Sometimes a party is asked a proper question during oral discovery and does not  
have the answer at his or her fingertips. In those circumstances, parties often  
undertake to make inquiries and to provide the answer in due course. An  
undertaking is in the nature of a promise. When an undertaking is given, the party is  
obliged to provide the answer; and,  
(g) Sometimes an undertaking is made in the form of a promise to use one’s best  
efforts to locate a document or to obtain information. “Best efforts” is an objective  
standard. It is measured by what a reasonable person would, in all the prevailing  
circumstances, consider best efforts to be. See Linamar Transportation Ltd. v.  
Johnson, 2014 ONSC 4415 (Div. Ct.) at para. 15.  
[15] In a number of instances, one or the other of the parties has refused to answer a question  
on the basis of an assertion of privilege. At times, solicitor client privilege is asserted. At other  
times, the assertion is one of litigation privilege. I will comment briefly about the differences  
between the two.  
[16] Solicitor-client privilege protects the confidential relationship between a solicitor and his  
or her client. It arises where three conditions are satisfied: (1) the communication over which  
privilege is asserted must be a communication between lawyer and client; (2) which entails the  
seeking or giving of legal advice; and (3) which is intended to be confidential by the parties. See  
Solosky v. The Queen, [1980] 1 S.C.R. 821.  
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[17] Unlike solicitor-client privilege, litigation privilege does not protect a relationship.  
Instead, it protects an area – a “zone of privacy” – necessary to foster the needs of the adversarial  
model of adjudication. See Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 34. It  
protects against the compulsory disclosure of communications and documents whose dominant  
purpose is preparation for litigation. See Lizotte v. Aviva Insurance Company of Canada, 2016  
SCC 52 at para. 1. The privilege applies only to communications made at a time when litigation  
was commenced or contemplated and where the dominant purpose of the communication (and  
not just a substantial purpose) was for use in, or advice concerning that litigation. See Blank, as  
above, at para. 60 and LCBO v. Lifford Wine Agencies, [2005] O.J. No. 3042, at para. 74.  
[18] Applying the above-noted principles to the undertakings, under-advisements and refusals  
set out on the attached charts, I came to the conclusions listed in those charts. By way of  
summary, I find that:  
A. Mr. Chaudhry must answer the following questions:  
(i) Question 288: To provide an updated Schedule “C” to his Affidavit of  
Documents;  
(ii) Questions 268-269: To provide contact information for all employees  
working between February 2017 and September 2017, to the extent he has  
that information;  
(iii) Question 534: To detail the efforts made to locate the name of the technician  
who advised them they need not keep records of fuel in their tanks;  
(iv) Questions 563-565: To inquire of their territory manager about the prospect  
of obtaining “Retail Volume Book” records for pre-2015;  
(v) Questions 573-574: To inquire of Esso why the document at Tab 2 of Mr.  
Chaudhry’s Supplemental Affidavit of Documents says “volume” at the top  
and “revenue” on the left;  
(vi) Questions 601-606: To produce all tax returns, tax documentation and general  
ledgers for the number company for the years 2011 to 2017;  
(vii) Questions 657-661: To ask his accountant what the entries of $40,000 in 2013  
and $60,000 in 2012 marked “credit to update inventory” mean;  
(viii) Questions 662-666: To clarify – does the entry “3000 sales” refer to gasoline  
and convenience store sales or just convenience store sales;  
(ix) Questions 847-850: To ask his accountant to produce whatever receipts he  
may have associated with certain identified debit card purchases or cash  
advances;  
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(x) Questions 364-365: To produce any ancillary documentation in relation to the  
2010 and 2018 Fuel Supply Agreements found at tabs 3 and 4 of Mr.  
Chaudhry’s Supplemental Affidavit of Documents;  
(xi) Questions 722-731: To provide evidence of the dollar amount of diesel fuel  
sold monthly during the period February 2017 to September 2017;  
(xii) Questions 732-733: To provide any evidence that reconciles the amount of  
fuel purchased and the amount of fuel sold in the period February 2017 to  
September 2017;  
(xiii) Questions 684-698: To produce information supporting the recipient of a  
$20,000 consulting fee paid in 2015;  
(xiv) Questions 470-484 and 536-550: To provide proof that the defendants have  
written to their fuel supplier to request any records the supplier has regarding  
fuel levels in the defendants’ tanks during the period February 2017 to  
September 2017;  
(xv) Question 489: To provide a list of the names of anyone who measured fuel in  
the tanks between February 2017 and September 2017;  
(xvi) Question 509: To provide records with respect to fuel sales between February  
2017 and September 2017; and,  
(xvii)Question 629: To provide the name of their accountant and his or her contact  
information.  
B. Mr. Byles must answer the following questions:  
(i) Question 644: If not already provided, the plaintiff is to provide a copy of  
any video surveillance from IRI;  
(ii) Questions 282-287 and 290-295: To advise why Tammy Weeks left her  
employment with the plaintiff and when;  
(iii) Question 366: To advise whether, as part of their investigation, the plaintiff  
had another driver drive the same route as Mr. Clemmens once drove, using  
the same truck Mr. Clemmens once used, in order to check the fuel  
consumption; and,  
(iv) Question 600: To advise if Mike Palmer made any observations from which  
he inferred that Mr. Clemmens was aware that he was under surveillance.  
[19] Each of Mr. Chaudhry and Mr. Byles is directed to answer the questions I have  
identified, in writing, within 60 days.  
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Part II: The Plaintiff’s Request for Further Examinations  
The Parties’ Positions  
[20] The plaintiff asks that Mr. Chaudhry be compelled to re-attend to answer the questions I  
have ordered him to answer and to answer any proper questions arising therefrom. Moreover, the  
plaintiff seeks leave to conduct two to three additional hours of examination at large on top of  
the six hours it has already conducted.  
[21] The plaintiff’s position is based on the following grounds:  
(a) Mr. Chaudhry has failed to answer many of his undertakings and improperly  
refused to answer numerous other proper questions put to him. His re-attendance  
will be necessary to answer questions he has been ordered to answer and to answer  
any questions that reasonably and properly arise from those answers; and,  
(b) The plaintiff was “all but deprived of a meaningful discovery” by virtue of,  
amongst other things, Mr. Chaudhry’s failure to properly prepare for his  
examination and his counsel’s unreasonable and improper conduct during the  
examination.  
[22] Mr. Chaudhry’s counsel did not make any specific submissions in oral argument about  
whether a further examination is appropriate. He did address the issue in his factum. There, he  
submitted that Mr. Chaudhry should not be re-examined. He said Mr. Chaudhry presented on  
the examination as knowledgeable and prepared. He did not refuse to answer any proper  
questions. Instead, was asked numerous improper questions intended to harass him.  
The Governing Principles  
[23] The plaintiff’s request to re-examine Mr. Chaudhry on questions arising from his  
compelled answers is governed by r. 34.15(1). That rule addresses the consequences for refusing  
to answer proper questions during an examination. It provides that the court may:  
(a) where an objection to a question is held to be improper, order or  
permit the person being examined to reattend at his or her own expense  
and answer the question, in which case the person shall also answer any  
proper questions arising from the answer;  
(b) where the person is a party or, on an examination for discovery, a  
person examined on behalf or in place of a party, dismiss the party’s  
proceeding or strike out the party’s defence;  
(c) strike out all or part of the person’s evidence, including any affidavit  
made by the person; and  
(d) make such other order as is just.  
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[24] It is not uncommon for the court to order a re-attendance by a party who has refused to  
answer questions properly put to him or her. See, for instance, Muslija v. Pilot Insurance Co.,  
[1991] O.J. No. 872 at para. 14. That said, there is no absolute right to a follow-up examination  
where a party has been ordered to answer questions improperly refused. The onus is on the party  
seeking the re-attendance to establish that it would serve a useful purpose. See Ramdath v.  
George Brown College of Applied Arts and Technology, 2012 ONSC 2747 at para. 32.  
[25] The central question to be asked is whether the re-attendance would advance one or more  
of the core purposes of the discovery process. See Ratana-Rueangsri v. Shorrock, [2009] O.J.  
No. 900 at paras. 26-27. Those core purposes include enabling the examiner to know the case to  
be met; to obtain admissions; to define and narrow the issues; and to promote settlement. See  
Ramdath, as above, at para. 26.  
[26] The plaintiff’s request for leave to examine Mr. Chaudhry at large for another two to  
three hours is governed by rules 31.03 and 31.05.01.  
[27] Rule 31.03(1) provides that a party to an action may examine for discovery any other  
party adverse in interest, once, and may examine that party more than once only with leave of the  
court.  
[28] Rule 31.05.01 provides that no party shall conduct oral examinations for discovery that  
exceed seven hours, except with the consent of the parties or leave of the court. In considering  
whether leave should be granted, the court is guided to consider the following factors:  
(a) the amount of money in issue;  
(b) the complexity of the issues of fact or law;  
(c) the amount of time that ought reasonably to be required in the  
action for oral examinations;  
(d) the financial position of each party;  
(e) the conduct of any party, including a party’s unresponsiveness in  
any examinations for discovery held previously in the action, such  
as failure to answer questions on grounds other than privilege or the  
questions being obviously irrelevant, failure to provide complete  
answers to questions, or providing answers that are evasive,  
irrelevant, unresponsive or unduly lengthy;  
(f)  
a party’s denial or refusal to admit anything that should have been  
admitted; and  
(g) any other reason that should be considered in the interest of justice.  
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Discussion  
[29] I have compelled Mr. Chaudhry to answer a significant number of questions. He can  
answer those questions in writing. Most of these answers are not likely, in my view, to lead to  
further questions of any real significance. Some however might, particularly the accounting  
questions. And those answers may touch upon issues that are central to these proceedings. For  
that reason, I believe it is appropriate that Mr. Chaudhry re-attend to answer any questions  
arising from the answers to the undertakings and refusals I have compelled him to answer.  
[30] In my view, any follow-up examination will not be substantial. It should be easily  
capable of being completed within one hour. That additional hour will take the plaintiff up to the  
seven-hour ceiling imposed by r. 31.05.01.  
[31] I do not believe that the plaintiff should be entitled to more than the seven hours of  
discovery mandated by the Rules, nor to a further examination of Mr. Chaudhry at large. I say  
this for a number of reasons:  
(a) The plaintiff has already had six hours of discovery. This case barely exceeds the  
Simplified Rules threshold. More than seven hours of discovery is disproportionate  
to the amounts at stake;  
(b) Neither party is particularly deep-pocketed. The plaintiff is a modest-sized  
business. Mr. Chaudhry is an individual and his gas station is a small, family-run  
business;  
(c) The issues are not the easiest to litigate, but they are relatively narrow and do not  
involve complex legal problems. I am not persuaded that the standard seven-hour  
window for examinations is insufficient to meet the needs of this litigation.  
Permitting further examinations at large would be, in my view, to countenance an  
inefficient and disproportionate use of resources; and,  
(d) I am satisfied that, despite obvious challenges, the plaintiff’s counsel was able to  
conduct a meaningful examination of Mr. Chaudhry in the first instance. Both  
counsel accuse the other of engaging in inappropriate, obstructive and  
unprofessional conduct during the course of the examinations. Their assertions  
required the court to conduct a detailed review of the transcripts. What was  
revealed was not pretty. They reflect a level of animosity between counsel that  
serves no one’s interests. There were clearly language issues in play that created  
confusion at times, which led to frustration and bickering. Both counsel were, in  
my view, excessively aggressive. The defendants’ counsel was, at times,  
inappropriate. He challenged the plaintiff’s counsel’s competence, referred to her  
questions as “dumb” and made comments about her appearance. None of that  
should have happened. Having said all of that, the examination proceeded over  
some six hours in total. It appears to me that Mr. Chaudhry was adequately  
prepared. And it appears that the plaintiff’s counsel was able to cover all of the  
areas she wished to cover. She did not articulate, in argument, any particular areas  
she was unable to address due to the conduct of Mr. Chaudhry or his counsel.  
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[32] In the result, I order that Mr. Chaudhry re-attend to answer any questions properly arising  
from the answers I have compelled him to provide in this ruling. Any further examination on  
that re-attendance shall be conducted over Zoom and shall be limited to one hour in duration.  
Part III: The Defendants’ Request to Examine Mike Palmer  
The Parties’ Positions  
[33] The Chaudhry Defendants are not asking to examine Mr. Byles on questions arising from  
answers I have compelled him to provide. Had they made that request I would have denied it,  
given my view that his compelled answers are unlikely to give rise to any further questions of  
any significance.  
[34] What the Chaudhry Defendants want instead, is an opportunity to examine a second  
representative of the plaintiff. They have conducted a significant examination of John Byles, the  
president of the plaintiff, over a period of roughly 4.5 hours. They now wish to examine Mike  
Palmer. Mr. Palmer is the plaintiff’s chief financial officer. He has been responsible for  
conducting the internal investigation of the circumstances giving rise to this lawsuit.  
[35] The Chaudhry Defendants assert that Mr. Byles was ill-prepared and ill-informed,  
making their examination of him unproductive. Moreover, the examination was interfered with  
by counsel to the plaintiff who, the defendants say, was disruptive.  
[36] Counsel to the plaintiff denies that her conduct during the examination of Mr. Byles was  
in any way inappropriate. She submits that Mr. Byles clearly prepared himself for the discovery  
process and gave fulsome answers during his examination and he followed up promptly on his  
undertakings. The Chaudhry Defendants specifically asked for Mr. Byles to be produced for  
examination. There are no circumstances here that warrant leave being granted for the  
examination of a second representative of the plaintiff.  
The Governing Principles  
[37] The defendants’ request to conduct a second examination for discovery is governed by r.  
31.03. It provides that an examining party may examine one officer, director or employee of a  
corporation. A second representative may only be examined on consent or with leave of the  
court.  
[38] Before granting leave, the court is required, by r. 31.03(4), to be satisfied that:  
(a) satisfactory answers respecting all of the issues raised cannot be  
obtained from only one person without undue expense and  
inconvenience; and,  
(b) examination of more than one person would likely expedite the  
conduct of the action.  
[39] In Fischer v. IG Investment Management Ltd., 2016 ONSC 4405, at para. 40, Justice  
Perell observed that “the test for additional examination for discovery is strict and orders to  
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examine a second representative are rarely granted.” The moving party must demonstrate, he  
said, that (a) it cannot otherwise obtain the discovery to which it is entitled from the examined  
party’s witness; and (b) there are other special circumstances related to whether the initial  
representative was uninformed about the material issues. (Fischer, para. 39)  
[40] It is not enough to demonstrate that the representative being examined does not have  
comprehensive personal knowledge of the circumstances of the case. (Fischer, para. 28). Nor is  
it enough that the examining party believes that better answers might be available if another  
person with personal knowledge of the relevant circumstances were to be examined. (Fischer,  
para. 37). The moving party must “demonstrate that the examined party’s answers, including  
answers to proper questions to follow up on undertakings, have not been answered or that  
answers are incomplete, unresponsive, evasive, or ambiguous.” (Fischer, para. 41).  
Discussion  
[41] Having reviewed the transcript of Mr. Byles’ examination, I am satisfied that he  
sufficiently prepared himself for the examination to comply with his obligations under the Rules  
and to ensure that the examination was meaningful. Moreover, he demonstrated a willingness to  
provide the information sought, whether through his direct answers, or through undertakings to  
obtain answers from other knowledgeable parties. He followed up on his undertakings in a  
prompt and thorough way.  
[42] I am completely unsatisfied that granting leave to examine Mr. Palmer would expedite  
the proceedings in any way. I am similarly unsatisfied that proper questions have not been  
answered or that the answers are incomplete, unresponsive, evasive or ambiguous. I tend to  
agree that Mr. Palmer might have been more readily able to answer a number of the questions  
put to Mr. Byles. But that is not the test.  
[43] While the clashes between counsel during both examinations were unfortunate, they did  
not, in this instance, undermine the utility of the examination of Mr. Byles. The Chaudhry  
Defendants have had an opportunity to meaningfully examine a representative of the plaintiff.  
That representative prepared himself for the examination, answered questions properly put to  
him to the best of his ability, and undertook to obtain answers he was not otherwise able to  
provide. He followed up on his undertakings diligently.  
[44] I note that Mr. Zafar examined Mr. Byles for about 2 ½ hours on August 18, 2022. The  
examination was adjourned at 5:00 p.m. It was continued on September 2, 2022 when it  
proceeded for another 2 hours. It does not appear that there was any communication from Mr.  
Zafar to Ms. Siemen between those two dates asking that someone other than Mr. Byles be  
produced, nor any complaint that he was not a proper representative. No indication appears in  
the record from the second day of examination that suggests there was any complaint about the  
appropriateness of Mr. Byles as the plaintiff’s representative, until Mr. Byles’ examination was  
complete.  
[45] Mr. Zafar did not articulate in argument any specific discovery he was unable to obtain  
through his examination of Mr. Byles, whether by way of direct answers or undertakings.  
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[46] Having regard to the foregoing factors, and factoring in the overarching concern for  
proportionality, I am not satisfied that leave should be granted for an examination of Mr. Palmer.  
Simply put, it would not be worth the candle.  
Costs  
[47] Both parties seek costs.  
[48] Ms. Siemen filed a costs outline that indicated that the plaintiff has incurred actual costs  
of $39,640.61 associated with these motions, including $34,503.00 in fees, $652.22 in  
disbursements and $4,485.39 in HST. She seeks $24,000 all-inclusive, on a partial indemnity  
basis.  
[49] Mr. Zafar filed a costs outline that indicated that the Chaudhry Defendants have incurred  
actual costs associated with these motions of $27,240.64, which includes $19,250.00 in fees,  
$4,967.20 in disbursements and $3,023.44 in HST. He seeks, on their behalf, partial indemnity  
costs of $15,000.00 all inclusive.  
[50] It is truly regrettable that more than $60,000 in fees and disbursements have been run up  
on an undertakings and refusals motion, when the total claimed in the action is $235,000.00  
(inclusive of $100,000 in punitive damages). The motions have done little to move the action  
forward. The fees incurred are patently disproportionate and reflect a lack of concern for the  
culture shift urged upon civil litigants by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7.  
[51] At any rate, the awarding of costs in civil proceedings is discretionary. The discretion is  
grounded in section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43.  
[52] The exercise of the discretion is guided by Rule 57.01 of the Rules of Civil Procedure  
which sets out a number of factors for the court’s consideration, including:  
(a) the complexity of the proceeding;  
(b) the importance of the issues;  
(c) the conduct of any party that tended to shorten or to lengthen unnecessarily the  
duration of the proceeding;  
(d) whether any step in the proceeding was improper, vexatious or unnecessary or  
taken through negligence, mistake or excessive caution;  
(e) the principle of indemnity; and,  
(f) the concept of proportionality, which includes at least two factors:  
i. the amount claimed and the amount recovered in the proceeding; and,  
ii. the amount of costs that an unsuccessful party could reasonably expect to  
pay in relation to the step in the proceeding for which costs are being fixed.  
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[53] The weight to be applied to any of the enumerated, or other, factors in any given  
assessment may vary. It is well-settled, however, that the overarching principles to be observed  
in the exercise of the court’s discretion to fix costs are fairness, proportionality and  
reasonableness: see Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for  
the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 246 D.L.R.  
(4th) 440 (C.A.).  
[54] Success was somewhat divided on this motion. Both sides were ordered to answer  
outstanding questions. Neither side was successful in their request to conduct further oral  
examinations at large. That said, I find that the plaintiff was the somewhat more successful party  
based on the significantly greater number of questions Mr. Chaudhry must answer and the order  
I have made that he re-attend to answer questions arising from his compelled answers.  
[55] Keeping in mind that divided success and, more importantly, the concept of  
proportionality, I order the Chaudhry Defendants to pay to the plaintiff the sum of $3,500 in  
costs of the motion, all-inclusive. Those costs are to be paid within 30 days.  
C. Boswell J.  
Date: June 7, 2022  
APPENDIX “A”  
UNDERTAKINGS, UNDER ADVISEMENTS AND REFUSALS CHART  
Examination of Waryam M. Chaudhry on August 17-18, 2021  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Quest. Page  
No. No.  
Undertaking  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to  
the Plaintiff’s position  
Disposition by the Court  
Production Obligations  
110 28  
It is confirmed that this email In my view, this question has  
is still active and mostly use been answered. The  
by the children of Waryam activation date is “roughly”  
To make best efforts to Not sure but rough idea is in Unanswered.  
obtain confirmation of when August 2012. Most of time he is  
1.  
Failed to: (a) confirm when the  
email address was activated; (b) to  
search the email address; and (c)  
to produce any and all content that  
is relevant.  
your  
email not using the same email and get  
addre help from his children.  
and nor relevant to this  
action.  
2012 and there are no  
relevant documents relating  
to this account.  
ss,  
m, was activated and to  
search the email address and  
produce any and all  
content that is relevant to  
this Action  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Undertaking  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to Disposition by the Court  
the Plaintiff’s position  
No.  
Schedule “C” - Documents that  
were formerly in my possession,  
control or power but are no  
longer in my possession, control  
or power.  
The Chaudhry defendants  
have listed no documents on  
Schedule “C” to their  
Affidavit of Documents.  
Yet, they clearly say there  
are relevant documents they  
once had, but no longer  
have, such as historical fuel  
invoices. A revised  
288  
66-67 To deliver an updated We will deliver you soon  
Unanswered.  
2.  
version of Schedule “C” of  
An updated Schedule “C” has  
not been delivered.  
the  
Affidavits  
of  
Documents  
which  
accurately reflects the  
documents that were, but  
are no longer in Mr.  
“NONE”  
Chaudhry’s  
possession,  
power or control  
Schedule “C” is required.  
The Gas Station and its Operations  
268-269 61 To provide  
The Chaudhry defendants  
have largely answered this  
undertaking. They have  
provided the names of the  
employees who worked  
during the relevant period  
and have indicated that all  
were paid minimum wage.  
The defendants must still  
provide contact information  
for those employees, to the  
extent that it is known.  
a
list of All employees as stated below Unanswered.  
3.  
The Response to Undertaking  
chart dated October 29, 2021,  
delivered to the Plaintiff on  
November 1, 2021, provided all  
employees records with T4s  
described the relationship with  
Owner of gas station at serial  
No. 32 & 33. The Plaintiff is  
deliberately misguided the court  
to  
regarding such information.  
employees who worked or in Questions 667-668, all paid  
people who assisted at the minimum wages for numbers of  
Bond Head Esso Station hours worked.  
between January 2011 and  
December 2017, including  
the period to time that they  
worked or assisted, their  
rate of pay and their  
contact information  
Failed to: (a) advise of the  
period of time that each  
individual worked or assisted;  
(b) advise of their rate of pay;  
and (c) provide their contact  
information.  
For the purpose of the Motion  
and  
with  
a
view  
proportionality, the Plaintiff is  
willing to limit its request to the  
period Feb. 2017 through Sept.  
2017. The Plaintiff reserves its  
right  
to  
request  
further  
documentation/  
information  
during the material time (i.e.,  
Jan. 2011 through Dec. 2017), as  
may be necessary.  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Undertaking  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to Disposition by the Court  
the Plaintiff’s position  
No.  
The Defendant made best efforts  
to determine the number of  
I understand the Chaudhry  
defendants to be saying that  
there are now 4 pumps and  
10 nozzles. Though the  
pumps were changed over in  
2019 there remain 4 pumps  
with 10 nozzles. If I am  
393-  
403  
89-92 To make best efforts to The pumps were changed in Unanswered.  
determine, between 2011 2019 almost more than 2 years  
4.  
pumps and nozzles there were at  
the Bond Head Esso Station  
between the years of 2011 and  
2017. The pumps were changed  
in 2019 and the Esso Station  
currently has 4 pumps with 10  
nozzles. There is no additional  
What efforts, if any, were  
and 2017, how many ago  
I
do not remember.  
made to answer this undertaking?  
pumps and nozzles there Currently we have 10 nozzles  
were at Bond Head Esso  
Station and what fuel was  
offered at each pump and  
nozzle  
For the purpose of the Motion  
and  
with  
a
view  
to  
proportionality, the Plaintiff is  
willing to limit its request to the  
period Feb. 2017 through Sept.  
2017. The Plaintiff reserves its  
correct in that understanding,  
pump when replaced the same in then the undertaking has  
2019. It is a common sense but  
the Plaintiff deliberately made  
issue just to misguide the court.  
been answered.  
right  
to  
request  
further  
documentation/  
information  
during the material time (i.e.,  
Jan. 2011 through Dec. 2017), as  
may be necessary.  
Volume of Fuel Purchased, Sold and in the Reserve Tanks  
The Defendant clearly answered  
the questions. The Defendant  
states that they do not keep the  
old records of daily checking the  
volume of fuel in the tank from  
January 2011 to December 2017  
if the fuel was low then he made  
order to the company, which all  
records the Plaintiff already  
collected directly from the  
When asked about daily  
records of fuel in the tanks,  
Mr. Chaudhry said he did not  
keep such records. He said  
the volume of fuel in the  
tanks is only relevant to the  
issue of when he needs to  
order more fuel. And he can  
determine the volume in the  
tanks by pressing a button on  
a touch screen. He said he  
would check his records and  
if he found anything, he  
would produce it. His  
451-  
452  
105-1 To produce any records  
We have system on the tanks Unanswered.  
5.  
06  
that show the volume of  
fuel in the reserve tanks  
from January 2011 to  
December 2017 on a daily  
which we just touch the screen  
to check the daily inventory in  
the tanks that’s why we do not  
need to keep records.  
What efforts, if any, were  
made to answer this undertaking?  
For the purpose of the Motion  
basis,  
whether  
and  
with  
a
view  
to  
computerized or otherwise  
proportionality, the Plaintiff is  
willing to limit its request to the  
period Feb. 2017 through Sept.  
2017. The Plaintiff reserves its  
company. But the Plaintiff is  
still made such issue just to  
misguide the court.  
right  
to  
request  
further  
information  
documentation/  
during the material time (i.e.,  
Jan. 2011 through Dec. 2017), as  
may be necessary.  
answer to the undertaking  
remains the same as it was  
on the examination. In my  
view, this undertaking has  
been answered.  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Undertaking  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to Disposition by the Court  
the Plaintiff’s position  
No.  
The Question was answered  
correctly the document at Tab 3  
of Mr. Chaudhry’s  
Supplementary Affidavit of  
Documents is referring to Esso’s  
Fuel Deliveries for Diesel at  
Bond Head.  
The document in issue is  
Esso’s “Retail Volume  
516  
128-1 With respect to the This is Esso Fuel Deliveries for  
29  
document found at Tab 2 Diesel at Bond Head  
of Mr. Chaudhry’s  
Supplementary Affidavit  
of Documents, to  
On the face of the  
document, seemingly inaccurate  
and/or incorrect.  
6.  
Book” for the period 2014 to  
2017. The answer provided  
is that only one page of this  
document refers to the Bond  
Head Esso (BU-51574. This  
undertaking is answered.  
What efforts, if any, were  
made to answer this undertaking  
accurately?  
determine what each of the  
pages is referring to and  
whether each of these  
pages is in relation to Mr.  
Chaudhry’s gas station  
The question was answered and  
also provided the contracts of  
the supplier companies to the  
Plaintiff between 2011 to 2017  
and the Defendant correctly  
stated as per contracts that  
Pioneer was their fuel supplier  
from 2009 to 2017 and Parkland  
was their supplier from 2018 to  
2028. The Plaintiff is  
There was some confusion  
about how the defendants  
answered this question.  
During argument of the  
motions, it was made clear  
that the fuel supplier from  
2011 to 2018 was Pioneer.  
From 2018 forward it has  
been Parkland (whose  
520-526 130-1 To advise who the fuel Pioneer and then changed to Unanswered.  
7.  
32  
supplier was and when Parkland. We already provided  
(between 2011 through the contract agreement for both.  
2017)  
For the purpose of the Motion  
and with view to  
proportionality, the Plaintiff is  
willing to limit its request to the  
period Feb. 2017 through Sept.  
2017. The Plaintiff reserves its  
a
right  
to  
request  
further  
information  
documentation/  
deliberately misleading just to  
misguide the court against the  
Defendants.  
contract runs until 2028).  
during the material time (i.e.,  
Jan. 2011 through Dec. 2017), as  
may be necessary.  
This undertaking has been  
answered.  
The defendant stated that they  
did their best efforts to locate  
the invoices asked for and  
discovered that they do not carry  
invoices for more than a year. It  
important that the documents of  
purchasing the fuel have already  
provided in Affidavit of  
The undertaking has been  
answered. The defendants  
say they have no records of  
fuel purchases between 2011  
and 2017 because they only  
keep those records for a year.  
519,  
529  
130,  
To produce the invoices in You already received record.  
The Plaintiff has no knowledge  
of any such documentation  
having been produced. For the  
purpose of the Motion and with  
a view to proportionality, the  
Plaintiff is willing to limit its  
request to the period Feb. 2017  
through Sept. 2017. The Plaintiff  
reserves its right to request  
further documentation during  
the material time (i.e., Jan. 2011  
through Dec. 2017), as may be  
necessary.  
8.  
132-1 relation  
33  
to  
all  
fuel They don’t carry invoices more  
purchased for Bond Head than a year.  
Esso Station from 2011  
through 2017, including  
how many purchases there  
were per month, how many  
litres were purchased and  
at what cost, including the  
documents referred to by  
Mr. Chaudhry that he  
testified to receiving from  
the fuel delivery drivers  
This is an item that will have  
to be added to the  
defendants’ Schedule “C”.  
Documents at Tab 1 & 2 and the  
Plaintiff itself collected all  
records directly from the  
supplier company.  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Undertaking  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to  
the Plaintiff’s position  
Disposition by the Court  
No.  
The Defendant did his best  
efforts to attempt to identify the  
technician who told him that he  
does not need to keep records of  
the fuel in his tank but since it  
that occurred in 2010, he does  
not have records of the person or  
the conversation. However, there  
is no need because all records of  
fuel have already provided to  
plaintiff.  
This undertaking remains  
outstanding. Whether there is  
a “need” for the plaintiff to  
have this information is of no  
moment, since there was an  
undertaking given to provide  
it. The defendants must  
detail what efforts that have  
made to find the name of the  
technician.  
534  
134-1 To make best efforts to He does not remember the Unanswered.  
9.  
35  
identify and provide contact technician’s name since this  
information for the occurred in 2010. He told us  
technician that told him that whenever we are low on gas, we  
he doesn’t need to keep can check the screen and order.  
records of fuel in his No need to keep inventory.  
reserve pump because the  
What efforts, if any, were made  
to answer this undertaking?  
What  
company  
did  
the  
technician work for so that we  
may attempt to contact him?  
sensors will automatically  
alarm  
The question was answered  
clearly, the Plaintiff asked where  
they can produce any records  
showing the amount of fuel in  
the reserve tank and the  
Defendant clearly stated that  
there is not need for records and  
explained in detail the process in  
which they would go about  
ordering gas for the tank.  
The plaintiff is not happy  
with the answer provided,  
which is that no records –  
whether daily, weekly or  
otherwise were kept of  
amounts of fuel in the tanks.  
But that is the answer. Both  
sides are stuck with it.  
536-546 135-1 To make best efforts to When the there’s regular gas left Unanswered.  
10  
.
38  
locate and produce any in tanks around 10,000 liters and  
records showing the supreme 5,000 liters and diesel  
amount of fuel in the 4,000 liters then we decide to  
reserve tank before the fuel order gas.  
deliveries and the amount  
What efforts, if any, were made  
to answer this undertaking?  
For the purpose of the Motion  
and  
with  
a
view  
to  
of fuel in the reserve tank  
after the fuel deliveries  
proportionality, the Plaintiff is  
willing to limit its request to the  
period Feb. 2017 through Sept.  
2017. The Plaintiff reserves its  
In my view, this undertaking  
has been answered.  
right  
to  
request  
further  
information  
documentation/  
during the material time (i.e.,  
Jan. 2011 through Dec. 2017), as  
may be necessary.  
The defendant made best effort  
to answer this undertaking. The  
Defendant does not keep records  
and cannot produce documents  
that they do not have. However,  
all records of purchase the diesel  
has already provided.  
The defendant has records  
only back to 2015 for diesel  
purchases. Those have been  
produced. In my view, this  
undertaking has been  
561-562 141-1 To advise how much diesel We do not have that record.  
What efforts, if any, were made  
to answer this undertaking?  
11  
.
42  
fuel in litres he purchased  
between 2012 through 2015  
(as referenced in Tab 14 of  
C&L Traders’ Affidavit of  
Documents)  
Tab 14 is stated about  
Parkland purchase volume for  
2012 -2015  
answered.  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Que  
st.  
Page  
No.  
Undertaking  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to  
the Plaintiff’s position  
Disposition by the  
Court  
No.  
The Pioneer is no longer  
supplier since 2018 when they  
switched supplier to the  
parkland. All collected pioneer  
documents have been provided  
to the Plaintiff.  
The territory manager who  
provided Mr. Chaudhry with  
the document at Tab 14 of  
C&L Traders’ Affidavit of  
Documents about obtaining the  
“pre-2015 pioneer financial  
reports” that are purportedly  
“no longer accessible………  
This undertaking remains  
unsatisfied. The defendants  
have produced a record of  
fuel purchases from Esso  
from 2015 through 2017  
(the Retail Volume Book).  
They have undertaken to  
follow up with the territory  
manager to determine if  
similar records are available  
for pre-2015. They need to  
do so and to provide the  
details of their efforts.  
563-  
565  
142  
To inquire with the You have all records of Pioneer, Unanswered.  
territory manager who  
provided Mr. Chaudhry  
with the document at Tab  
14 of C&L Traders’  
Affidavit of Documents  
about obtaining the “pre-  
2015 pioneer financial  
12  
.
reports”  
that  
are  
purportedly “no longer  
accessible”  
The Defendant did do their best  
efforts to answer this question.  
All the documents were  
The answer to this  
573-  
574  
144-1 To inquire with the person We don’t know who prepared Unanswered.  
13  
.
undertaking is patently  
insufficient. The defendants  
appear not to have made the  
inquiries it undertook to  
make at all.  
45  
or company who prepared this report. We provided as is  
the document found at received.  
Tab 2 of Mr. Chaudhry’s  
What efforts, if any, were  
made to answer this  
undertaking?  
provided directly from the  
supplier company mix with  
other gas stations. There is only  
document related to Defendant,  
at page 55. Other gas stations  
charts should be discarded. .  
Supplementary Affidavit  
of Documents as to why  
the chart says “volume” at  
the top and “revenue” on  
the left  
This undertaking remains  
outstanding.  
The little discrepancy is  
This undertaking is now  
satisfactorily answered.  
590-  
597  
148-1 To  
50  
explain  
the Don’t  
create  
Two  
deliberate Unanswered.  
different  
14  
.
showing because the supplier  
company did not have the  
records of starting months of  
2015, which is clearly showing  
in the chart provided by the  
supplier company as they did  
not have the records of starting  
few months of 2015.  
discrepancy in the stated confusion.  
volume of fuel purchased documents don’t mixed up.  
for 2015 in Tab 14 of  
C&L Traders’ Affidavit  
of Documents (1,882,365  
litres) and Tab 2 of Mr.  
Chaudhry’s  
Supplementary Affidavit  
of Documents (1,169,664  
litres) and to provide an  
accurate and updated  
volume of fuel purchased  
in 2015  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Que  
st.  
Page  
No.  
Undertaking  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to Disposition by the Court  
the Plaintiff’s position  
No.  
Financial Records  
The Defendant has already  
produced the tax Documents  
regarding GST/HST but Tax  
returns of corporation is not  
provided as the Plaintiff’s  
alleged fraud claim has not yet  
established. Also, the Tax  
Returns of gas station business  
are confidential.  
It is no answer to an  
undertaking to say that the  
records sought are not  
relevant. There was an  
undertaking given to  
produce them. They must  
be produced.  
601-  
606  
151-1 To produce all tax returns, Already provided with  
52 tax documentation and Affidavit of Documents  
general ledgers for  
Unanswered.  
15  
.
The Plaintiff has no knowledge  
of any such documentation  
having been produced.  
1397663 Ontario Inc. for  
2011 through 2017  
It is irrelevant questions and  
refused to provide the answer  
as per transcript meanwhile.  
Chaudhry voluntarily said to  
ask from account, therefore, it  
is not undertaking, and it has no  
relevancy regarding the  
Mr. Chaudhry’s lawyer took  
the position on discovery  
that this question was  
irrelevant. But nevertheless,  
Mr. Chaudhry said he would  
ask his accountant for this  
information. I find that he  
undertook to answer the  
question.  
657-  
661  
164-1 To inquire with your To update inventory as of year Unanswered.  
16  
.
65  
accountant as to what the end based on estimate  
2013 $40,000 credit “to  
update inventory for the  
year” and the 2012  
$60,000 credit “to update  
inventory for the year” is  
referring to, as referenced  
in C&L Traders’ general  
ledgers  
plaintiff’s claim.  
His counsel argued that this  
information is privileged.  
But it is clearly not  
protected by either solicitor  
client privilege or litigation  
privilege. No other form of  
privilege was articulated.  
This undertaking remains  
outstanding.  
It is already gave the answer  
that the “3000 Sales” is sale of  
gas and convenience store.  
This undertaking appeared  
to be answered, but the  
waters were muddied during  
argument. The formal  
answer to the undertaking is  
that “3000 sales” refers to  
both gasoline and  
convenience store sales. But  
in argument, the defendants’  
counsel said it referred to  
convenience store sales and  
was therefore irrelevant.  
662-  
666  
165-1 To inquire with your It includes all the sale for gas Unanswered.  
17  
.
66  
accountant and advise us and convenience store  
what each of the  
Failed to advise whether these  
are transactions by customers at  
the convenience store  
transactions is for, or is  
referring to, in the general  
ledgers for C&L Traders  
from 2011 through 2017  
under the heading “3000  
sales” and whether these  
are  
customers  
convenience store  
transactions  
by  
the  
at  
The defendants must clarify,  
does the entry “3000 sales”  
refer to gasoline AND  
convenience store sales, or  
just convenience store sales?  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Undertaking  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to Disposition by the Court  
the Plaintiff’s position  
No.  
Mr. Choudhry already provided  
the answers during the discovery  
that the said amounts Mr.  
Clemmens took debit card cash  
back for his personal debit  
cards. The Bank Statement of  
Mr. Clemmens already indicated  
the same. There is no need to  
make questions again to create  
confusion in the mind of court.  
Mr. Clemmens also accepted the  
same. It has no relevancy to the  
alleged Plaintiff’s claim of  
Mr. Chaudhry’s counsel  
advised that the transactions  
in issue were all debit card  
cash advances. He claimed  
they are not relevant. At the  
discovery, however, he said  
“this is a very relevant  
question”.  
847-850 212-2 To search your records and Must have been recorded as sales. Unanswered.  
18  
.
13  
inquire  
accountant and produce  
any  
receipts,  
with  
your  
Failed to: (a) search records; (b)  
inquire with accountant; and (c)  
produce any documentation  
which explain the transactions.  
documents  
(i.e.,  
financial  
general  
statements,  
ledgers, or any other  
documentation) which  
What efforts, if any, were made  
to answer this undertaking  
accurately?  
explains these transactions  
shown in Mr. Clemmens’  
bank statements as being  
“retail purchases” at Bond  
Head Esso Station: Dec.  
8, 2014 of $50,  
The undertaking, to be clear,  
was to ask the accountant to  
produce receipts for any  
debit card purchases or cash  
advances associated with the  
transactions identified.  
speedpass credit card.  
Dec. 24, 2014 of $560, Oct.  
24,  
2014 of $100, Oct. 30, 2014  
of  
$240, Sept. 26, 2014 of  
$240,  
This undertaking remains  
outstanding.  
Nov. 9, 2015 of $100,  
May 1,  
2015 of $220, April 17,  
2015 of  
$282, May 2, 2016 of  
$240,  
Feb. 9, 2016 of $280, Jan.  
29,  
2016 of $200 and Jan. 27,  
2017 of $200  
UNDER ADVISEMENTS  
0
.
Outstanding under advisements given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Que  
st.  
Page  
No.  
Under Advisement  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to Disposition by the Court  
the Plaintiff’s position  
No.  
Production Obligations / The Gas Station and its Operations  
The Defendant has answered the  
question. All agreement has been  
provided by the fuel suppliers  
and delivered the same to the  
Plaintiff. There are no other  
documents.  
I am satisfied that the  
364  
83-84 To produce any and all All agreement has been Unanswered/refused.  
ancillary documentation supplied of fuel supply. Also  
1.  
documents sought in this  
question are relevant to the  
defendants’ obligations in  
terms of record-keeping.  
They should be produced. If  
the defendants do not have the  
records sought, they should be  
listed on Schedule C to the  
defendants’ Affidavit of  
Documents.  
Relevant  
to  
determine  
relating to the 2010 Motor aforesaid stated about the  
Fuel Supply Agreement ordering of fuel and all others  
found at Tab 3 of Mr. are not relevant for this matter  
policies, procedures and  
requirements in terms of  
record keeping, point of sale  
services, ordering, delivery of  
fuel and fuel storage tanks  
which is directly relevant to  
the fraud and will allow the  
Plaintiff to test the evidence  
produced (or refused to be  
produced) to date  
Chaudhry’s  
to disclose.  
Supplementary Affidavit  
of Documents, including  
but not limited to: any  
documentation,  
guidelines,  
policies,  
procedures, manuals and  
regulatory requirements  
and terms and conditions  
relating to point of sale  
services, the ordering and  
delivery of fuel and fuel  
storage tanks. Including  
those  
documents  
referenced in provisions  
12(f), 14(c), 15(b), 18(e),  
20(c), 26  
and 32 of the Agreement  
The question is answered the  
Defendant cannot produce an  
ancillary documentation relation  
to the 2018 Motor Fuel Supply  
Agreement found in Tab 4 of Mr.  
Chaudhry’s Supplementary  
Affidavit of documents because  
the documents were not made by  
Mr. Chaudry.  
I make the same endorsement  
here, as I did with respect to  
question 364.  
365  
84  
To produce any and all Both Agreement made by the Unanswered/refused.  
ancillary documentation companies and not by waryam  
2.  
Relevant  
to  
determine  
relating to the 2018 Motor Choudhry.  
Fuel Supply Agreement  
found at Tab 4 of Mr.  
Chaudhry’s  
policies, procedures and  
requirements in terms of  
record keeping, point of sale  
services, ordering, delivery of  
fuel and fuel storage tanks  
which is directly relevant to  
the fraud and will allow the  
Plaintiff to test the evidence  
produced (or refused to be  
produced) to date  
Supplementary Affidavit  
of Documents, if such  
documentation is different  
from that which is  
produced in relation to the  
2010 Motor Fuel Supply  
Agreement  
UNDER ADVISEMENTS  
0
.
Outstanding under advisements given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Under Advisement  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to Disposition by the Court  
the Plaintiff’s position  
No.  
Volume of Fuel Purchased, Sold and in the Reserve Tanks  
The Defendant did answer the  
questions as per documents  
This is a clearly relevant  
question in light of the live  
issues in this case. In  
particular, the central  
allegation that the defendants  
charged for more fuel than  
they sold.  
722-731 180-1 To produce documentation Already  
3.  
provided  
related documents  
all  
Unanswered/refused.  
82  
proving the volume and  
provided, the Defendant cannot  
produce documents that they do  
not have and any other documents  
that are relevant have already  
been provided to the Plaintiff.  
The  
Plaintiff  
requires  
dollar amount of diesel and noting else they carry.  
fuel sold at Bond Head  
Esso Station, per month,  
documentation necessary to  
reconcile the volume of diesel  
fuel purchased and received  
versus the volume of diesel  
fuel sold and removed from  
the reserve tank.  
from 2011 through 2017  
I have not been directed to any  
evidence to support the  
defendants’ assertion that the  
question has been answered.  
In my view it remains  
For the purpose of the Motion  
and with  
a
view to  
proportionality, the Plaintiff is  
willing to limit its request to  
the period Feb. 2017 through  
Sept. 2017. The Plaintiff  
reserves its right to request  
outstanding.  
further  
information  
documentation/  
during the  
material time (i.e., Jan. 2011  
through Dec. 2017), as may  
be necessary.  
UNDER ADVISEMENTS  
0
.
Outstanding under advisements given during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Under Advisement  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to  
the Plaintiff’s position  
Disposition by the Court  
No.  
Mr. Chaudhary answered the  
questions and provided all  
documents in his possession,  
however, all such records of fuel  
purchased received by Plaintiff  
directly from supplier company.  
There is no any discrepancy found  
by the plaintiff in those  
This question is related to  
question 722. It is relevant for  
the same reason.  
732-  
722  
183  
To produce the supporting Question is not proper because The  
documentation which all relevant documents have  
Plaintiff  
requires  
4.  
proves that Bond Head been produced.  
Esso Station sold the same  
amount of fuel that it  
documentation necessary to  
reconcile the volume of diesel  
fuel purchased and received  
versus the volume of diesel  
fuel sold and removed from  
the reserve tank.  
Similarly, I have not been  
directed to any proof that the  
question has been answered.  
The defendants’ counsel  
submitted that it is common  
sense that the defendants sold  
the same amount of fuel that  
they purchased. I do not  
disagree with that broad  
assertion, but the allegation in  
this case is that they recorded  
the sale of more fuel than they  
purchased, which makes the  
records of their sales  
purchased every year  
documents but deliberately  
misguided the court.  
For the purpose of the Motion  
and  
with  
a
view to  
proportionality, the Plaintiff is  
willing to limit its request to  
the period Feb. 2017 through  
Sept. 2017. The Plaintiff  
reserves its right to request  
further  
information  
material time (i.e., Jan. 2011  
through Dec. 2017), as may be  
necessary.  
documentation/  
during the  
particularly probative.  
In my view, this was a proper  
question and remains  
outstanding.  
Financial Records  
Mr. Choudhry answered the same  
in Transcript in questions No. 696  
that the said amount never paid to  
Mr. Clemmens. After very clear  
answer by Mr. Chaudhry there is  
no need to repeat the same  
The question is relevant as it  
touches upon the validity of a  
significant consulting fee paid  
out by the defendants in 2015.  
There is no assertion of  
privilege. The defendants say  
that the plaintiff should trust  
the answer that the payment  
was not made to Mr.  
684-  
698  
170-1 To inquire with your This is not relevant to this matter. Relevant to the relief sought  
73  
accountant and produce by the Plaintiff relating to  
any information and  
5.  
wrongful  
and/or  
misappropriation  
diversion and  
supporting documentation  
he has in relation to the  
$20,000 consulting fee that  
C&L Traders’ recorded in  
its general ledger for 2015  
conversion of funds.  
question again.  
The Plaintiff is entitled to test  
the evidence produced to date,  
specifically,  
$20,000 "consultant fee" is a  
legitimate expense and  
whether  
the  
Clemmens. But the plaintiff is  
unrelated to these proceedings.  
not obliged to trust them. The  
plaintiff is entitled to pursue  
this question and it must be  
answered.  
REFUSALS  
0
.
Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Que  
st.  
Page  
No.  
Specific under  
advisement  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to  
the Plaintiff’s position  
Disposition by the Court  
No.  
Production Obligations  
We are still trying to find them  
but could not succeed.  
During argument, the  
915-919 230-2 To produce a list of the We are still trying to find such Unanswered.  
1.  
plaintiff’s counsel advised  
that she accepts the answer  
received.  
31  
names and last known old customers and will provide  
contact information for the same if Mr. Choudhry will  
each of the individuals find them.  
referred to in paragraph 11  
The pleading states that  
certain customers “are willing  
to become witnesses”.  
of his pleading: “…Those  
old customers are willing  
to become witnesses to  
prove our good standard  
The Plaintiff is entitled to the  
names  
and  
contact  
information for the customers  
who have agreed to be  
witnesses.  
and services…”  
REFUSALS  
0
.
Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Specific under  
advisement  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to  
the Plaintiff’s position  
Disposition by the Court  
No.  
Volume of Fuel Purchased, Sold and in the Reserve Tanks  
The question was answered the  
defendant made it best effort to  
produce records regarding the  
volume of the duel in the tank and  
have stated numerous times that  
they do not keep such records.  
However, the said records already  
received by the Plaintiff directly  
from the supplier companies,  
which are mentioned in Affidavit  
of Documents.  
The question is relevant for  
obvious reasons. The  
defendant must provide  
evidence that it has requested  
the records sought from its  
fuel supplier.  
470-484 110-1 To write to your fuel We have already received all Unanswered.  
2.  
13  
supplier regarding the reports and produced through  
period 2011 through 2017 Affidavit of Documents.  
and to request any records  
that they have showing  
volumes of fuel in the  
The  
Plaintiff  
has  
no  
knowledge of the Defendants’  
inquiries with the fuel supplier  
or of any such reports having  
been produced.  
reserve tanks  
The  
Plaintiff  
requires  
documentation necessary to  
reconcile the volume of diesel  
fuel purchased and received  
versus the volume of diesel  
fuel sold and removed from  
the reserve tank.  
For the purpose of the Motion  
and  
with  
a
view  
to  
proportionality, the Plaintiff is  
willing to limit its request to  
the period Feb. 2017 through  
Sept. 2017. The Plaintiff  
reserves its right to request  
further  
information  
documentation/  
during the  
material time (i.e., Jan. 2011  
through Dec. 2017), as may be  
necessary.  
REFUSALS  
0
.
Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Que  
st.  
No  
.
Page  
No.  
Specific under  
advisement  
Answer or precise reason for Moving Party/Plaintiff’s  
Defendants Response to the  
Plaintiff’s position  
Disposition by the Court  
not doing so  
Position  
The Defendant stated number  
times that he does not have  
records of the fuel being  
measured and cannot produce  
documents that he does not have  
such old records.  
The plaintiff sought the  
names of anyone who  
measured the fuel in the  
reserve tanks between 2011  
and 2017. The question is  
relevant because of its  
relationship to the central  
issue in the proceedings: the  
reconciliation between  
amounts sold and amounts  
purchased.  
489  
114  
To provide a list of During  
the  
Discovery Unanswered.  
3.  
anybody who measured Examination Mr. Choudhry  
fuel in the reserve tanks already talked about the  
between 2011 through measured fuel.  
2017  
No list was provided during  
Mr. Chaudhry’s examination.  
The  
Plaintiff  
requires  
documentation necessary to  
reconcile the volume of  
diesel fuel purchased and  
received versus the volume  
of diesel fuel sold and  
removed from the reserve  
tank.  
Mr. Chaudhry refused to  
answer the question. The  
answer produced here that  
records of measurements  
were not kept does not  
answer the question asked.  
That question remains  
outstanding and should be  
answered.  
For the purpose of the  
Motion and with a view to  
proportionality, the Plaintiff  
is willing to limit its request  
to the period Feb. 2017  
through Sept. 2017. The  
Plaintiff reserves its right to  
request  
further  
documentation/ information  
during the material time (i.e.,  
Jan. 2011 through Dec.  
2017), as may be necessary.  
REFUSALS  
0
.
Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Ques  
t.  
Page  
No.  
Specific under  
advisement  
Answer or precise reason for  
not doing so  
Moving Party/Plaintiff’s  
Position  
Defendants Response to  
the Plaintiff’s position  
Disposition by the Court  
No.  
The Defendant has answered this  
question. The Defendant states  
that the reports are in their  
no  
The question is relevant for  
obvious reasons. It does not  
appear to me to have been  
answered. The defendants  
appear to be referring to the  
Retail Volume Book, which, if  
I am correct, shows purchases  
of fuel and not sales.  
509  
127  
To produce records with Already provided the reports  
respect to all diesel fuel with Affidavit of Documents.  
sales from 2011 through  
Unanswered.  
4.  
The  
Plaintiff  
has  
Affidavit of documents therefore  
the Plaintiff does have knowledge  
that these documents had been  
produced. Also the Plaintiff  
received the same directly from  
the supplier company but could  
not find any discrepancy to  
knowledge of any such  
records having been produced.  
2017  
The  
Plaintiff  
requires  
documentation necessary to  
reconcile the volume of diesel  
fuel purchased and received  
versus the volume of diesel  
fuel sold and removed from  
the reserve tank.  
establish alleged claim.  
This question asks for records  
of fuel sales between 2011 and  
2017 (limited now to February  
2017 to September 2017). I  
have not been referred to any  
documentation that establishes  
that the question has been  
answered. In my view, it  
remains outstanding. If the  
answer is that the records no  
longer exist, then those  
records should be reflected on  
Schedule C to the defendants’  
Affidavit of Documents.  
For the purpose of the Motion  
and  
with  
a
view to  
proportionality, the Plaintiff is  
willing to limit its request to  
the period Feb. 2017 through  
Sept. 2017. The Plaintiff  
reserves its right to request  
documentation/  
during the  
material time (i.e., Jan. 2011  
through Dec. 2017), as may be  
necessary.  
further  
information  
REFUSALS  
0
.
Refusals during the examination of Waryam M. Chaudhry on August 17-18, 2021.  
Que  
st.  
No  
.
Page  
No.  
Specific under  
advisement  
Answer or precise reason for Moving Party/Plaintiff’s  
not doing so Position  
Defendants Response to  
the Plaintiff’s position  
Disposition by the  
Court  
The Defendant made it best effort  
regarding the records that show  
how much fuel was in the tank  
before delivery and how much was  
in the reserve tank after delivery  
and all documents and reports on  
the records of the fuel were already  
provided. The Defendant cannot  
produce documents that they do not  
have.  
This is the same question  
as that posed at 470-484.  
I make the same  
536-  
550  
135-1 To write to the fuel Already provide the complete Unanswered.  
5.  
40  
supplier to inquire as to reports of company whatever  
whether they have access we have the records.  
to any records that show  
The Plaintiff has no  
knowledge  
Defendants’  
with the fuel supplier or  
of any such reports  
having been produced.  
of  
the  
endorsement here.  
inquiries  
how much fuel was in the  
reserve  
tank  
before  
delivery and how much  
was in the reserve tank  
after delivery, and to  
produce such records  
The  
Plaintiff  
For the purpose of the  
Motion and with a view  
to proportionality, the  
Plaintiff is willing to  
limit its request to the  
period Feb. 2017 through  
Sept. 2017. The Plaintiff  
reserves its right to  
request  
further  
documentation/  
information during the  
material time (i.e., Jan.  
2011  
through  
Dec.  
2017), as may be  
necessary.  
Financial Records/Information  
Mr. Chaudhry already answered the  
questions and there is no need of  
accountants’ personal information.  
However, Mr. Chaudhry already  
provided the Plaintiff all relevant  
information received from the  
accountant. The Plaintiff’s lawyer  
could not establish any fraud claim  
against him and his gas stations  
therefore, she is asking irrelevant  
information and documents which  
The defendants’  
629  
156-1 To advise of the name Irrelevant as whatever  
57  
and contact information required  
Mr.  
Chaudhry  
was  
6.  
accountant is undoubtedly  
a party who is in control  
of relevant evidence. The  
plaintiff is entitled to  
know who the accountant  
is and what his or her  
contact information is.  
unable to answer any  
questions during his  
examination relating to  
the companies’ books  
and records.  
for the accountant for documents Mr. Choudhry  
each of Mr. Chaudhry, provided.  
C&L  
Traders  
and  
1397663 Ontario Inc.  
The accountant may: (a)  
have  
supporting  
documentation relevant  
source  
or  
to this action and that are not relevant to their claim.  
has yet to be produced;  
and (b) be a witness at  
trial.  
APPENDIX “B”  
UNDERTAKINGS, UNDER ADVISEMENTS AND REFUSALS CHART  
Examination of John Byles on August 18, 2021 and September 2, 2021  
UNDERTAKINGS  
0
)
Outstanding undertakings given during the examination of John Byles on August 18, 2021 and September 2, 2021.  
Quest.  
No.  
Page  
No.  
Specific undertaking  
Date answered or precise  
reason for not doing so  
Disposition by the Court  
I have reviewed the  
462  
122  
To make inquiries with Mike Attached at Tab 1.  
Palmer to determine if he has any  
notes or documentation relating  
to the internal investigation, and  
to produce such documentation  
1.  
2.  
plaintiff’s productions and I  
am satisfied that the notes  
have been provided.  
subject to privilege and relevance  
I understand this has been  
produced, though it was not  
part of the productions  
forwarded to me for  
review. If not already  
provided, any such  
644  
172  
To make best efforts to obtain Attached at Tab 2.  
video surveillance from IRI, if it  
exists, and to produce it, subject  
to privilege and relevance  
surveillance should be  
provided.  
These appear to me to have  
been provided.  
866-869  
959-963  
229-230  
255-256  
To make best efforts to search for Attached at Tab 3.  
and produce maintenance reports  
regarding Mr. Clemmens’ truck  
for the period 2011 through 2017,  
subject to privilege and relevance  
3.  
4.  
This undertaking appears to  
have been satisfied.  
To make best efforts to determine During this period, Mr.  
how many times between 2011 Clemmens did not receive a  
through 2017 Mr. Clemmens was bonus once, in July 2014.  
not paid a bonus  
UNDER ADVISEMENTS  
0
.
Outstanding under advisements given during the examination of John Byles on August 18, 2021 and September 2, 2021.  
Quest.  
No.  
Page  
No.  
Specific under advisement  
Answer or precise reason for  
not doing so  
Disposition by the Court  
This question appears to  
have been satisfactorily  
answered.  
392-394  
101-103 To ask Mike Palmer when he On or around March 6, 2017.  
engaged his internal analysis of Mr. Palmer did not make a  
Mr. Clemmens’ driving routes determination as to what was  
1.  
and patters, and whether he most efficient and  
determined what was most effective.  
efficient and cost effective  
cost  
This question appears to  
have been satisfactorily  
answered.  
587  
608  
965  
156  
162  
256  
To inquire with Mike Palmer as Mr. Palmer did not.  
to whether he consulted with  
other investigative companies  
prior to retaining IRI  
2.  
3.  
4.  
This question appears to  
have been satisfactorily  
answered.  
To inquire with Mike Palmer Mr. Clemmens did not.  
whether Mr. Clemmens ever  
confronted him about the  
surveillance and investigation  
Based on the submissions  
made in argument, it  
would appear that what  
the defendants are  
To provide the contact number Refused. FKM is unaware as to  
and name of the people who had who Mr. Clemmens interacted  
interactions with Mr. Clemmens with.  
looking for is a list of  
names of people with  
whom Mr. Clemmens  
may have had  
disagreements at work.  
If the question is to name  
anyone Mr. Clemmens  
ever interacted with, the  
question is improper  
because it is singularly  
broad and not confined by  
relevance.  
If the question is to name  
anyone whom Mr.  
Clemmens may have had  
conflict with at work, that  
is a question more  
properly put to Mr.  
Clemmens.  
REFUSALS  
0
.
Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.  
Quest.  
No.  
Page  
No.  
Specific under advisement  
Answer or precise reason for  
not doing so  
Disposition by the  
Court  
This question was  
abandoned in argument.  
26  
8
How many people currently Irrelevant. Mr. Byles is not a party  
reside with you in your to this proceeding and there are no  
1.  
2.  
residence in Barrie  
allegations in relation to his  
family or personal finances.  
In my view, this  
43-47  
11-12  
How many drivers were Irrelevant.  
There  
are  
no  
question is relevant to  
the extent that it asks  
about the identity of  
drivers between 2011  
and 2017 (the time  
period encompassed by  
the claim. That said,  
Mr. Byles provided an  
answer as to how many  
drivers they employed  
during that relevant  
time period.  
working at F.K. Machinery allegations relating to other or the  
from 1995 through 2017  
number of drivers or employees of  
the Plaintiff.  
It is not apparent to me  
why the number of  
drivers employed  
between 1995 and 2011  
is relevant. The  
question was properly  
refused.  
I agree that the  
225  
59  
Is it a duty of F.K. Machinery to Improper question. Looking and  
look and check each and checking “each and everything” is  
3.  
question, as phrased, is  
too vague and need not  
be answered.  
everything  
vague. There is no connection  
between this question and any of  
the allegations in the pleadings.  
Mr. Zafar submitted  
that what he was asking  
was whether it was the  
plaintiff’s duty to keep  
tabs on the activity of  
its drivers. Even if that  
was the question, which  
is not entirely clear  
from the transcript, I  
continue to be of the  
view that it is too  
vague.  
REFUSALS  
0
.
Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.  
Quest.  
No.  
Page  
No.  
Specific under advisement  
Answer or precise reason for  
not doing so  
Disposition by the  
Court  
This is the first of a  
series of questions  
asked of Mr. Byles  
about activity sheets  
filled out by drivers. A  
number of activity  
reports purporting to be  
those of Mr. Clemmens  
were not signed by  
anyone. The defendants  
want to know how the  
plaintiff knows that the  
activity reports are  
those of Mr. Clemmens  
when they were not  
signed.  
247  
64  
How do you know Mr. Previously asked and answered  
Clemmens was working on May (p. 54). Answered further on p.  
4.  
23 to 26, 2017  
68: “The general practice, as Mr.  
Clemmens confessed to  
yesterday, during testimony, was  
that he did not typically sign it,  
but he handed them to Tammy  
Weeks or Sharon Nahorny, so we  
know when there was no drivers  
name, 100 percent it was Mr.  
Clemmens.”  
Though the defendants  
may not like the  
answers given, I am  
satisfied that the  
question was previously  
asked and answered.  
This is, in effect, the  
same question as #247.  
I am satisfied it has  
been answered.  
251  
65  
How do you know this is a Mr. Previously asked and answered  
Clemmens, because there is no (p. 54). Answered further on p.  
5.  
name on it?  
68: “The general practice, as Mr.  
Clemmens confessed to  
yesterday, during testimony, was  
that he did not typically sign it,  
but he handed them to Tammy  
Weeks or Sharon Nahorny, so we  
know when there was no drivers  
name, 100 percent it was Mr.  
Clemmens.”  
This is, in effect, the  
same question as #247.  
I am satisfied it has  
been answered.  
to  
256  
66  
How you know without name of Previously asked and answered  
6.  
driver, this is the claimant  
(p. 54). Answered further on p.  
68: “The general practice, as Mr.  
Clemmens  
confessed  
yesterday, during testimony, was  
that he did not typically sign it,  
but he handed them to Tammy  
Weeks or Sharon Nahorny, so we  
know when there was no drivers  
name, 100 percent it was Mr.  
Clemmens.”  
This is, in effect, the  
same question as #247.  
I am satisfied it has  
been answered.  
to  
267  
67-68  
Where there is no name of the Previously asked and answered (p  
driver, no initial, no notes, how 54). Answered further on p. 68:  
do you know this is Mr. “The general practice, as Mr.  
7.  
Clemmens  
Clemmens  
confessed  
yesterday, during testimony, was  
that he did not typically sign it,  
but he handed them to Tammy  
Weeks or Sharon Nahorny, so we  
know when there was no drivers  
name, 100 percent it was Mr.  
Clemmens.”  
REFUSALS  
0
.
Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.  
Quest.  
No.  
Page  
No.  
Specific under advisement  
Answer or precise reason for  
not doing so  
Disposition by the  
Court  
This is, in effect, the  
same question as #247.  
I am satisfied it has  
been answered.  
to  
270  
69  
How do you recognize this is Previously asked and answered  
the Mr. Clemmens from the (p. 54). Answered further on p.  
sheet. I could not understand 68: “The general practice, as Mr.  
8.  
that there is no name on it. Clemmens  
confessed  
There’s no notes on it, so my yesterday, during testimony, was  
question is very simply, but how that he did not typically sign it,  
you recognize that this is Mr. but he handed them to Tammy  
Clemmens  
Weeks or Sharon Nahorny, so we  
know when there was no drivers  
name, 100 percent it was Mr.  
Clemmens.”  
This question, as asked, is  
too broad. It is not  
possible to determine its  
relevance.  
275-277  
70-71  
Is there any record you Irrelevant.  
terminate your employees allegations relating to other  
between 2011 to 2017, other employees of the Plaintiff nor are  
There  
are  
no  
9.  
than Clemmens  
there any allegations in respect of  
Mr. Clemmens’ cessation of  
employment with the Plaintiff.  
In argument, Mr. Zafar  
said he was trying to ask  
whether Tammy Weeks  
was fired for something  
that had to do with this  
investigation or a rift  
between her and Mr.  
Clemmens. That is not the  
question that was asked  
however.  
This, in my view, is the  
same question as that  
asked at 275-277. Its  
relevance has not been  
established.  
280  
72  
Did you fire or terminate any Irrelevant.  
other employee than Clemmens allegations relating to other  
There  
are  
no  
10.  
during the 2011 to 2017  
employees of the Plaintiff nor are  
there any allegations in respect of  
Mr. Clemmens’ cessation of  
employment with the Plaintiff.  
Improperly stated and without  
establishing  
the  
factual  
foundation for the question.  
Specifically, the Plaintiff did not  
fire or terminate Mr. Clemmens.  
This question may be  
relevant if Tammy Weeks  
left as a result of the  
investigation into the  
alleged fuel overcharge.  
282-287  
72-73  
Why did Tammy Weeks leave?  
Irrelevant.  
There  
are  
no  
11.  
allegations relating to Ms. Weeks  
nor are there any allegations in  
respect of Mr. Clemmens’  
cessation of employment with the  
Plaintiff.  
This series of questions  
could have been phrased  
in a way that makes their  
relevance more apparent.  
That said, I am satisfied  
that this question was  
relevant and proper and  
should be answered.  
This is the same question  
as 282-297 and my  
endorsement is the same.  
290-295  
74-75  
Why Tammy Weeks did leave Irrelevant.  
There  
are  
no  
12.  
13.  
your F.K. Machinery?  
allegations relating to Ms. Weeks  
nor are there any allegations in  
respect of Mr. Clemmens’  
cessation of employment with the  
Plaintiff.  
This is the same question  
as 282-297 and my  
endorsement is the same.  
306  
78  
To give the date when Tammy Irrelevant.  
Weeks leave F.K. Machinery allegations relating to Ms. Weeks  
There  
are  
no  
and on what basis.  
nor are there any allegations in  
respect of Mr. Clemmens’  
cessation of employment with the  
Plaintiff.  
REFUSALS  
0
.
Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.  
Quest.  
No.  
Page  
No.  
Specific under advisement  
Answer or precise reason for  
not doing so  
Disposition by the  
Court  
This is the same question  
as 282-297 and my  
endorsement is the same.  
308-310  
78-79  
Did you fire Tammy Weeks?  
Irrelevant.  
There  
are  
no  
14.  
allegations relating to Ms. Weeks  
nor are there any allegations in  
respect of Mr. Clemmens’  
cessation of employment with the  
Plaintiff.  
I am not satisfied that  
this question is relevant.  
334-338  
366  
83-84  
93  
How many employees were not Irrelevant.  
being given quarterly bonus  
There  
are  
no  
15.  
16.  
allegations relating to other  
employees of the Plaintiff.  
In my view this was a  
relevant and proper  
question. It asks  
whether, as part of the  
plaintiffs’ investigation,  
they had another  
employee drive the  
same route as that  
driven by Mr.  
When you got a complaint of Improper question.  
Mr. Clemmens that he is  
(339-366) (84-93)  
Factual foundation has not been  
involved in fraud on the gas  
station, did you give the same  
truck to another employee  
driver to verify that the same  
truck was drove on the same  
kilometer, and he got the same  
fuel  
established (i.e., there was no  
complaint that Mr. Clemmens was  
involved in fraud).  
Clemmens, using the  
same truck that Mr.  
Clemmens drove, in  
order to check fuel  
consumption.  
This should be  
answered.  
I am not certain that I  
understand the question  
as asked. For that  
reason, I am unable to  
say whether it was  
properly refused.  
387  
100  
When did Mike Palmer had Improper question.  
17.  
knowledge that there’s a most  
efficient and cost effective  
disbursement responsibility  
Factual foundation has not been  
established (i.e., there is no  
evidence that Mike Palmer made  
such a determination) and Mr.  
Byles cannot speak to Mr.  
Palmer’s knowledge.  
following his [Mr. Clemmens]  
departure  
Similarly, I am unable  
to understand what  
458  
494  
120  
131  
To review the calculations at Improper question as it is  
paragraph number 24 and 22, incomprehensible and incapable  
according to your mileage, of being answered.  
according to your litres,  
according to whatever you said  
here, and how much the fuel  
18.  
19.  
exactly is being sought  
by the question in this  
instance. In the result, I  
am unable to determine  
if the refusal was valid.  
amount of every day.  
This question tends to  
intrude, in my view,  
into the sphere of  
Why did you discontinue Legal question and subject to  
Imperial  
proceedings  
Oil  
from  
the solicitor-client and litigation  
privilege.  
advice given by  
plaintiff’s counsel to the  
plaintiff and the  
instructions received  
back. In my view, it is  
therefore protected by  
solicitor-client  
privilege.  
I agree that this  
question has been asked  
and answered.  
560  
144  
So, you never tried to Previously asked and answered on  
20.  
investigate  
regarding  
other  
the  
drivers p. 143-144, “No, we focused on  
fraudulent Mr. Clemmens because of the fact  
involvement with the Head that he was there every day”.  
Bond. Answered further on pp. 241-243.  
REFUSALS  
0
.
Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.  
Quest.  
No.  
Page  
No.  
Specific under advisement  
Answer or precise reason for  
not doing so  
Disposition by the  
Court  
Mr. Zafar agreed,  
during argument, that  
this question has been  
answered.  
576  
154  
When Mr. Clemmens was  
retired  
Previously asked and answered at  
pp. 20-21, qq.76-77: “…I believe  
we cleared that up yesterday after  
about 20 minutes and it was June  
16th, I think, 2017.”  
21.  
22.  
This question has been  
answered. The answer  
is that Mr. Palmer did  
not consult with other  
investigative firms.  
589-597  
156-159 If Mike Palmer engaged with Irrelevant.  
There  
are  
no  
other investigative firms, to allegations that Mr. Palmer  
advise who they were and what improperly chose IRI, that IRI  
their quotes for the scope of was chosen for financial reasons  
work was  
or that the scope of work was  
improper.  
In any event, the Plaintiff  
confirmed in the answer to under  
advisement number 2, above, that  
Mr. Palmer did not consult with  
other investigative companies  
prior to retaining IRI.  
This question does not  
necessarily ask Mr.  
Palmer to read Mr.  
Clemmens’ mind. It is  
properly understood, in  
my view, as asking  
whether Mr. Palmer  
made any observations  
that would support an  
inference that Mr.  
Clemmens was aware  
of the surveillance. It is  
arguably a better  
600  
159-160 To inquire with Mike Palmer as Improper question. Mr. Palmer  
23.  
to whether Mr. Clemmens knew cannot speak to Mr. Clemmens’  
about the surveillance during knowledge.  
A
similar under  
May and June  
advisement was given to a proper  
question at p. 624, qq. 166-167.  
question for Mr.  
Clemmens, but on  
balance I am satisfied  
that it is relevant and  
proper.  
This is not a proper  
question in my view. It  
is more properly  
characterized as  
argument.  
This question has been  
answered. The plaintiff  
has produced its Fleet  
Activity Report which  
reflects all usage of its  
speed passes.  
627-628  
695-699  
167-168 Do you think if someone knows Improper question. Vague and  
about the surveillance and they hypothetical. In addition, Mr.  
would still trying to do Byles cannot speak to what Mr.  
24.  
25.  
something wrong?  
Clemmens would do.  
186-187 To produce a copy of the No such document exists. The  
Speedpass report made by F.K. Plaintiff will adhere to its ongoing  
Machinery  
regarding  
the production  
and  
discovery  
Clemmens’ driving, regarding obligations in accordance with the  
the Clemmens’ using that Rules.  
Speedpass  
This too has been  
answered. There are no  
allegations of errors in  
the Fleet Activity  
Report.  
737-738  
199  
When you make a claim against Improper question. There are no  
Mr. Chaudhry and Mr. allegations of errors or  
Clemmens, what error or what misrepresentations in the fleet  
misrepresentation showing in activity report.  
your fleet activity report you  
26.  
brought  
on  
with  
your  
Supplementary Affidavit of  
Documents on pages 74.2 and  
74.3  
REFUSALS  
0
.
Refusals during the examination of John Byles on August 18, 2021 and September 2, 2021.  
Quest.  
No.  
Page  
No.  
Specific under advisement  
Answer or precise reason for  
not doing so  
Disposition by the  
Court  
I agree, this was asked  
and answered. The  
answer given was “no”.  
775  
208  
Whether he has suspicions of Previously asked and answered at  
any other employee of F.K. pp. 143-144. Answered further on  
Machinery regarding such plan pp. 241-243.  
of alleged fraud at Bond Head  
27.  
28.  
Esso Station  
I agree that, again, this  
question tends to  
intrude on the  
privileged sphere of  
communications  
between the plaintiff  
and its counsel.  
820-832  
221  
Why did you make the party of Legal question and subject to  
Esso Imperial when Esso said solicitor-client and litigation  
there was no fraud  
privilege. In addition, it is  
improper as the factual foundation  
has not been established (i.e.,  
Esso did not state there was no  
fraud).  
To the extent that it  
asks about the  
plaintiff’s legal theory  
of the case against Esso,  
it is irrelevant given that  
Imperial Oil has been  
let out of the action.  
This is the same  
question as #494. My  
endorsement is the  
same.  
840-850  
897-904  
224-227 Why you take off the Imperial Legal question and subject to  
29.  
30.  
Oil  
company  
from  
the solicitor-client and litigation  
Statement of Claim. Give me privilege.  
the answer  
In my view, this  
question has been  
satisfactorily answered.  
237-239 Give me the undertaking that This question was not refused.  
you can provide me the Mr. Byles advised that the reports  
statement, bank statements, have been previously produced  
credit card statements, when (i.e., the Fleet activity reports) and  
Mr. Clemmens was using the no bank statements or credit card  
credit card of your company to statements exist. Ms. Siemon  
get the gas.  
suggested that Mr. Zafar question  
the deponent as to whether there  
are credit card statements. Mr.  
Zafar  
continued  
with  
his  
questioning.  
This is not a proper  
question. The decision  
whether to prosecute is  
in the discretion of the  
Crown.  
994-1005  
262-264 Why did you not take action to Irrelevant. The Plaintiff’s actions  
31.  
speak to the Crown or to appeal in relation to the criminal charges  
to restore the criminal charges  
have no bearing on the civil  
lawsuit.  



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