Executive Summary: Key Legal and Evidentiary Issues

• The Plaintiff tenant sought to examine Alex LaCivita, who it alleges held himself out as Panattoni’s construction manager, as the Defendant landlord’s representative at discovery.
   
• Rule 31.03(2)(a) limits corporate representatives to officers, directors, or employees, and Mr. LaCivita held none of those roles with the Defendant entities.
   
• Case law permits extending that definition to non-employees only in limited circumstances, including where the issues arise from external matters on which the proposed person is the critical witness.
   
• Evidence disclosed that the Landlord corporations had no employees and that Panattoni personnel carried out the project, with significant overlap between Panattoni and the Defendant entities.
   
• Objecting to Mr. LaCivita while raising no similar objection to Ms. Ribeiro, who the court found similarly situated, diminished the force of the Defendant’s position.
   
• Two cancelled discovery dates for the Plaintiff led the court to order it to produce a representative within 30 days.
   

Facts of the case

Highlight Motor Freight Inc. (the Plaintiff) was to lease a building being constructed at Highway 50 and 7 in Brampton, Ontario, from Highway 50 & 7 Equities Inc., Pangreen Limited Partnership, 9404635 Canada Inc., GreyCan 7 Properties Limited Partnership, and GreyCan 7 Properties GP, Inc. Collectively the owners of the property, these entities shared counsel and were treated as a single Defendant/Landlord for the motions. The Plaintiff alleges the Landlord failed to complete construction in accordance with the lease, a fundamental breach that it says entitled it to terminate the lease and sue for damages. It terminated the lease on June 30, 2024, and commenced the action seeking, among other things, the return of its $1.6 million deposit. In its counterclaim, the Defendant seeks damages for breach of contract, alleging the Plaintiff abandoned the premises, damaged them and failed to pay rent.

According to the Plaintiff, it understood the lands were being developed by Panattoni Development Company (Panattoni). After the lease was executed, Alex LaCivita introduced himself to the Plaintiff’s president as the person responsible for constructing the building. The Plaintiff alleges that all later negotiations, discussions and correspondence about construction were with or included him, and that he held himself out as Panattoni’s Construction Manager. It also noted that the lease was signed by Wade Dobbin, one of Panattoni’s three founding partners, and that Carl Panattoni, another founder, is or was listed as an officer or director of GreyCan 7 Properties GP, Inc.

Two motions were heard by video conference on May 15, 2026. In the first, the Plaintiff moved to examine Mr. LaCivita on the Defendant’s behalf. In the second, the Defendant moved to compel a representative of the Plaintiff to attend discovery.

Policy and legislative provisions at issue

Rule 31.03(2)(a) of the Rules allows an examining party to examine “any officer, director or employee on behalf of the corporation.” Before the examination, the corporation may move for an order that the examining party examine a different officer, director or employee. Read strictly, the rule would prevent compelling someone without that legal status to testify for a corporation, as noted in Robinson v. London Health Sciences Centre, 2013 ONSC 6340. According to the Defendant, the proper route to examine Mr. LaCivita was a motion to examine a non-party under Rule 31.10.

Reasoning and analysis

The Defendant argued that Mr. LaCivita was not an officer, director, or employee of any Defendant entity and could not bind it. It would therefore be prejudiced if forced to accept his evidence as binding. It also maintained that the lease and the parcel register made ownership readily ascertainable. In its view, there could have been no misunderstanding that the parties to the lease were the Landlord entities, not Panattoni. A corporate representative need only have sufficient knowledge of the facts or be an appropriate person to obtain it, and may give undertakings for information outside their direct knowledge. One of its proposed witnesses was a property manager who handled the administration of the lease. She was not directly employed by the Landlord but was employed through a property management company, CAP Ontario Inc.

The Plaintiff countered that none of the Landlord’s directors or officers were involved in the matters giving rise to the dispute. In its submission, Mr. LaCivita was the only individual with direct knowledge of the alleged construction delays and deficiencies. It relied on Bell v. Klein (No. 3), which drew on Elliott v. Holmwood & Holmwood, Ltd., to urge a broad reading of “officer” and to argue that Mr. LaCivita was the person “best informed” on the matters in question.

The court then reviewed how other courts have treated similar requests:

• Mr. Pallett Inc. v. Sadler & Van Santen Insurance Services Inc. One Ontario decision adopting the broader approach allowed a third-party fire inspector, who had direct involvement in all matters related to the fire, to be treated as an employee for discovery.
• Motorola Inc. v. Or, 2010 ONSC 1787. The Defendant relied on this case as distinguishing Mr. Pallett. It described such orders as arising from peculiar facts and circumstances, suggesting they are rarely granted.
• Robinson. The court accepted that an independent contractor could be included only in limited circumstances. The factors were whether the issues arise from external matters where that person is the critical witness or from internal corporate decisions, whether the person acted as an independent contractor or employee at the material time, and whether a statutory duty to provide the information exists. The test was sufficient knowledge, not better knowledge. The order was refused because significant internal matters could be addressed by the hospital’s proposed witness.
• Joseph Silaschi General Contracting (Kitchener) Ltd. v. Kitchener (City). This decision held that Holmwood does not support reading “employee” so liberally as to include an independent contractor. It distinguished the “conduit pipe theory” applied in Cdn. Indemnity Co. v. A.G.B.C., where a servant of an agent association of corporations that were controlling members of the sued corporation was treated as that corporation’s servant for discovery.

The court found comparable features in this case. The Landlord corporations had no employees of their own, and Panattoni personnel carried out the development and construction. Certain Panattoni officers held executive roles in one or more Defendant entities, and the project was handled externally rather than internally. On that basis, the court concluded this was one of the rare cases warranting the relief. It stressed that the result turned on a unique factual matrix and that such requests will continue to be granted only in exceptional circumstances.

The Defendant’s selective reliance on the rule added further support. It raised no similar objection to Ms. Ribeiro, notwithstanding that, in the court’s view, she was similarly situated. The court found that ordering the examination would advance the truth-seeking function of discovery and may help narrow the issues.

On the second motion, the Plaintiff’s discovery had been scheduled twice without proceeding. The first date was cancelled because the Plaintiff needed more time to review productions. The second was cancelled because the Plaintiff refused to produce a representative until Mr. LaCivita was produced. The court saw no further impediment to discovery of both parties once the first motion was decided, but the procedural history led it to grant the Defendant’s request.

Ruling and overall outcome

Both motions were granted. Mr. LaCivita is to be examined on the Defendant’s behalf, and the Plaintiff must produce Mr. Kirk Kalinitchenko as its representative for examination for discovery within 30 days or any extension the parties agree to in writing. While each side succeeded, the court found the Plaintiff’s motion took precedence and treated the Plaintiff as largely the more successful party.

For costs on a partial indemnity basis for both motions, the Plaintiff sought $45,000.00 and the Defendant sought $41,000.00. Consistent with figures both parties called reasonable in oral submissions, the court fixed costs at $23,000.00 plus HST to the Plaintiff and $16,000.00 plus HST to the Defendant. Costs are payable within 30 days and are not to be set off unless the parties agree. No single combined amount was stated.