ONTARIO SUPERIOR COURT OF JUSTICE. - and -

Transcription

1 Court File No SR/am ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: NELSON BARBADOS GROUP LTD. - and - Plaintiff RICHARD IVAN COX, GERARD COX, ALAN COX, PHILIP VERNON NICHOLLS, ERIC ASHBY BENTHAM DEANE, OWEN BASIL KEITH DEANE, MARJORIE ILMA KNOX, DAVID SIMMONS, ELNETH KENTISH, GLYNE BANNISTER, GLYNE B. BANNISTER, PHILIP GREAVES, a.k.a. PHILP GREAVES, GITTENS CLYDE TURNEY, R.G. MANDEVILLE & CO., COTTLE, CATFORD & CO., KEBLE WORRELL LTD., ERIC IAIN STEWART DEANE, ESTATE OF COLIN DEANE, LEE DEANE, ERRIE DEANE, KEITH DEANE, MALCOLM DEANE, LIONEL NURSE, LEONARD NURSE, EDWARD BAYLEY, FRANCIS DEHER, DAVID SHOREY, OWEN SEYMOUR ARTHUR, MARK CUMMINS, GRAHAM GROWN, BRIAN EDWARD TURNER, G.S. BROWN ASSOCIATES LIMITED, GOLF BARBADOS INC., KINGSLAND ESTATES LIMITED, CLASSIC INVESTMENTS LIMITED, THORNBROOK INTERNATIONAL CONSULTANTS INC., THORNBROOK INTERNATIONAL INC., S.B.G. DEVELOPMENT CORPORATION, THE BARBADOS AGRICULTURAL CREDIT TRUST, PHOENIX ARTISTS MANAGEMENT LIMITED, DAVID C. SHOREY AND COMPANY, C. SHOREY AND COMPANY LTD., FIRST CARIBBEAN INTERNATIONAL BANK (BARBADOS) LTD., PRICE WATERHOUSE COOPERS (BARBADOS), ATTORNEY GENERAL OF BARBADOS, the COUNTRY OF BARBADOS, and JOHN DOES 1-25, PHILIP GREAVES, ESTATE OF VIVIAN GORDON LEE DEANE, DAVID THOMPSON, EDMUND BAYLEY, PETER SIMMONS, G.S. BROWN & ASSOCIATES LTD., GBI GOLF (BARBADOS) INC., OWEN GORDON FINLAY DEANE, CLASSIC INVESTMENTS LIMITED and LIFE OF BARBADOS LIMITED c.o.b. as LIFE OF BARBADOS HOLDINGS, LIFE OF BARBADOS LIMITED, DAVID CARMICHAEL SHOREY, PRICEWATERHOUSECOOOPERS EAST CARIBBEAN FIRM, VECO CORPORATION, COMMONWEALTH CONSTRUCTION CANADA LTD. and COMMONWEALTH CONSTRUCTION, INC. Defendants

2 This is the Continued Cross-Examination of K. WILLIAM McKENZIE, taken at the offices of VICTORY VERBATIM REPORTING SERVICES, Suite 900, Ernst & Young Tower, 222 Bay Street, Toronto, Ontario, on the 8th day of February, APPEARANCES: LORNE S. SILVER GERALD L.R. RANKING ANDREW J. ROMAN SEAN DEWART EMMELINE MORSE -- for the Defendant, Richard Cox et al -- for the Defendant, PwC East Caribbean Firm -- for the Defendant, Iain Deane et al -- for the Witness

3 INDEX OF PROCEEDINGS K.W. McKenzie PAGE NUMBER K. WILLIAM McKENZIE, resumed Continued Examination by MR. RANKING Index of Exhibits 270 Index of Undertakings 271 Index of Refusals 272 Certification 273

4 K.W. McKenzie K. WILLIAM McKENZIE, resumed 2 CONTINUED EXAMINATION BY MR. RANKING : Q. Good morning, Mr. McKenzie. 4 A. Good morning Q. This is the continued 6 cross-examination which commenced on Wednesday, 7 February 3rd. I remind you that you are under oath, 8 correct? 9 A. I am reminded Q. When we A. Let me just stop you for one second. 12 I just have two things to say Q. Yes? 14 A. One is...i never got it written 15 down, but my understanding was, I was to check my 16 cell phone bills to see about inbound calls. I 17 pulled one out on the weekend, and found they are 18 not recorded, the number of an incoming call is not 19 recorded Q. Okay. 21 A. So, that is the best I can do for 22 you. The other thing is, you asked me about a hotel 23 on my trip to Anchorage...Vancouver Airport, 24 Toronto, the hotel that I was at was in Richmond, 25 right near the airport. I didn't make that clear; I

5 K.W. McKenzie just wanted to tell you that Q. Were you going to produce the hotel 3 receipt? 4 MR. DEWART: No, that was not an 5 undertaking. 6 7 BY MR. RANKING: Q. With respect to your cell phone, 9 have you used the same cell phone provider today 10 that you were using in 2006 and through the duration 11 of this lawsuit? 12 A. Yes Q. And what provider is that? 14 A. Rogers Q. Thank you. Anything else 16 from...carry over from the last time? 17 MR. DEWART: I am just looking at my 18 notes, and it is unclear as to whether it 19 was an undertaking or a refusal, but it was 20 to produce the airline ticket from 21 Vancouver to Toronto. Does anyone recall 22 if that was MR. RANKING: Yes, as I MR. DEWART:...August 8th MR. RANKING: As I recall, there is a

6 K.W. McKenzie dispute about whether or not an undertaking 2 to that effect was given. We will have to 3 check the transcript. 4 THE DEPONENT: I flew, but... 5 MR. DEWART: Just wait for the 6 questions. 7 8 BY MR. RANKING: Q. When we concluded on our last day, I 10 had been asking you about the agreement that was 11 pleaded in paragraph 46 of the Amended Statement of 12 Claim, and I had referred to that, and I will 13 continue to refer to it as the security agreement. 14 MR. DEWART: Do you mind...let me have a 15 quick look at 46, just because I don't 16 remember what it says MR. RANKING: Sure. 18 MR. DEWART: I am sure I have the 19 pleading, but I am not sure I have the 20 amended claim with me MR. RANKING: That is okay. 22 MR. DEWART: Carry on BY MR. RANKING: Q. Just for your benefit...again, I

7 K.W. McKenzie can't pass mine across because my pleading has 2 handwriting on it, but that paragraph states, and I 3 quote: 4 "...The plaintiff has security over and 5 ownership rights and common shares of the 6 defendant Kingsland. The security includes 7 the right to share in the increase in the 8 value of those common shares, as well as 9 dividends or other payouts to shareholders 10 by Kingsland..." 11 I think it has been marked as Exhibit number Your counsel has provided you with a copy? 13 A. Yes Q. Now, you indicated when you met with 15 Mr. Best that you reviewed the agreement. Can you 16 tell me what the agreement said with respect to 17 dividends? 18 A. No Q. Can you tell me what it said with 20 respect to other payouts? 21 A. No Q. And did the agreement, to the best 23 of your recollection, identify the shareholders of 24 Kingsland? 25 A. These are just details I can't

8 K.W. McKenzie remember Q. Because I just note in paragraph 46, 3 you speak of the increase in the value of those 4 common shares, as well as dividends or other payouts 5 to shareholders by Kingsland. Do you recall who the 6 shareholders were? 7 A. Same answer Q. You can't recall? 9 A. I just don't recall details such as 10 that Q. Did Mr. Best tell you how he came to 12 obtain a copy of this agreement? 13 A. I don't recall. He just showed it 14 to me in the context of giving advice Q. I am sorry, in the context of A. Our conversation Q. To the best of your recollection, 18 you can't recall any discussion as to how he came 19 into possession of the agreement? 20 A. No Q. And did you discuss who actually 22 prepared the agreement? 23 A. I can't remember Q. Did you discuss whether it was 25 prepared by him or by a legal office?

9 K.W. McKenzie A. I can't remember Q. And after the discussion you had 3 with Mr. Best concerning this agreement, did you 4 discuss it with John Knox? 5 A. I discussed...perhaps the best thing 6 is, I confirmed that there was an agreement Q. And that was with John Knox? 8 A. With John Knox, yes Q. When did you speak to John Knox 10 about the existence of this agreement? 11 A. I am sorry, can you just remind me 12 of the date of his affidavit? Was it November 2007? Q. John Knox's affidavit A. Yes? Q....was sworn the 22nd of November , I believe. 17 A. Okay, well, it would have been 18 before that Q. I apologize, it was the 12th of 20 November, A. 2007? Q. Yes. 23 A. Yes, it would have been prior to 24 that Q. Do you recall where you discussed

10 K.W. McKenzie this with Mr. Knox? 2 A. No, not specifically Q. Was anybody else present? 4 A. I can't remember Q. And what did Mr. Knox... 6 MR. DEWART: I didn't hear that answer MR. RANKING: "I can't remember". 8 9 BY MR. RANKING: Q. And what did Mr. Knox tell you about 11 the terms of the agreement? 12 A. He confirmed that there was a deal Q. Yes, you have given me that 14 evidence, but what did he tell you as to the terms 15 of the deal, if anything? 16 A. I have to...there is something about 17 this in his affidavit. I have to refresh my memory, 18 but I was looking to see what evidence I had to 19 prove a case Q. Yes? 21 A....and in our discussions, I was 22 satisfied that my version, my opinion, the 23 allegation as in the Statement of Claim could be 24 proven, by evidence, including Mr. Knox Q. All right. Do you recall discussing

11 K.W. McKenzie the terms of the agreement with Mr. Knox? 2 MR. DEWART: He said he would have to 3 refresh his memory by referring to Mr. 4 Knox's affidavit. 5 6 BY MR. RANKING: Q. All right. Would you do that? 8 A. Well, I don't recall specifically 9 discussing its terms Q. And can you take me to the paragraph 11 that you say deals with the security agreement in 12 Mr. Knox's affidavit? 13 MR. DEWART: I don't have that with me. 14 THE DEPONENT: I didn't say that. 15 MR. DEWART: Again, his evidence is that 16 there is some kind of a deal BY MR. RANKING: Q. And you are saying to me that that 20 is set forth somewhere in his affidavit, sworn 21 November 12th, 2007? 22 A. Well, more particularly that it was 23 evidence that he would have given...had we ever 24 gotten to the merits of the case, and I think that 25 is the...

12 K.W. McKenzie Q. No, but I am concerned to ensure 2 that I understand your answer, and that I can then 3 reference it to the affidavit. Is there a 4 reference...and to be fair to me, the affidavit to 5 which you referred me is some 43 pages long with paragraphs. Is it your evidence that Mr. Knox 7 referred to this security agreement in this 8 affidavit? And if so, can you refer me to the 9 paragraph? 10 A. That is not what I was saying. I 11 was saying...you were asking me questions, I really 12 can't remember a lot of the details. I thought a 13 referral to the affidavit might help me recall our 14 conversations Q. All right. Perhaps we can do it 16 this way: You don't have a copy of the affidavit 17 before you. If I could ask you to reflect, and if 18 you have any further recollection following our 19 cross-examination, you will let me know? 20 MR. DEWART: About what? MR. RANKING: About the terms of the 22 security agreement that he may have 23 discussed with Mr. Knox. 24 MR. DEWART: No, he didn't say he 25 may...he said he did discuss with Mr. Knox,

13 K.W. McKenzie and then you got into what Mr. Knox told 2 him about the terms, if anything MR. RANKING: I was asking about the 4 terms. 5 MR. DEWART: Yes, right, and Mr. Knox 6 confirmed there was a deal MR. RANKING: You don't need to...either 8 you will give me the undertaking or not, 9 Mr. Dewart. 10 MR. DEWART: Before I determine whether 11 or not I am going to do that, I need to 12 know precisely what it is you want. That 13 is my point MR. RANKING: All right. I would like 15 to know...i think there are shifting sands 16 here. I had understood Mr. McKenzie to 17 give evidence that the affidavit referred 18 to, in some way, the security agreement. 19 What I now understand Mr. McKenzie to be 20 saying is that the affidavit in its 21 entirety might assist his recollection as 22 to the discussion he had with respect to 23 the security agreement. And my question 24 is, to the extent that Mr. McKenzie doesn't 25 have the benefit of the security agreement

14 K.W. McKenzie before him, and the fact that we started 2 some 35 minutes late, would he please 3 review the affidavit, and if his review of 4 the affidavit refreshes his recollection in 5 any way with respect to the discussion he 6 had with Mr. Knox concerning the security 7 agreement, would he advise me? And... 8 THE DEPONENT: It will take me two 9 minutes. 10 MR. DEWART: No, just a minute MR. RANKING: I can do it over the 12 break; that is fine. 13 MR. DEWART: My difficulty has to do 14 with the relevance, and then he tells you 15 about this, and I am just trying to figure 16 out what issue on the pending Rule motion will be advanced by this inquiry. 18 So, I apologize for being long-winded, but 19 the answer is no, I am not giving you the 20 undertaking. /R MR. RANKING: All right BY MR. RANKING: Q. With respect to your meeting with 25 Mr. Knox, you indicated that it was prior to

15 K.W. McKenzie November 12th. Do you recall with any greater 2 precision the date that you met with him and 3 discussed the security agreement? 4 A. I met with him on more than one 5 occasion to discuss the deal Q. When was the first time you met with 7 him to discuss the security agreement? 8 A. I don't recall Q. Did you take any notes of your 10 discussion with Mr. Knox? 11 A. Perhaps, I can't recall Q. Would you review your file and 13 produce them if you made notes? 14 MR. DEWART: Yes, the file is 15 immense...the answer to the question is 16 yes, he will review his file and produce 17 copies of notes of meetings with John Knox, 18 if he is able to locate them. U/T 19 MR. SILVER: Meetings or discussions. 20 MR. DEWART: Mr. Silver? That is fine. 21 I am adding that to the undertaking, but we 22 really are only going to have one counsel 23 asking questions at a time MR. RANKING: And I am particularly 25 interested about meetings or discussions

16 K.W. McKenzie with respect to the security agreement. 2 MR. DEWART: I have given you a broader 3 one. If you want me to narrow it, I am 4 happy to narrow it MR. RANKING: I am not suggesting that 6 it be narrowed, Mr. Dewart. I am just 7 saying that I don't want there to be any 8 misunderstanding as to what it is I am 9 asking Mr. McKenzie. 10 MR. DEWART: I have given an undertaking 11 for him to review his file and produce 12 copies of notes of any meetings or 13 discussions with John Knox, as I say. If 14 you want me to narrow that down, say the 15 word. Otherwise, I would just stick with 16 that undertaking MR. RANKING: Anything more? 18 MR. DEWART: Go ahead, next question BY MR. RANKING: Q. Did you make any notes of your 22 discussions concerning the security agreement when 23 you met with Donald Best? 24 A. I don't recall Q. Do you recall when you met with Mr.

17 K.W. McKenzie Best? 2 A. About the deal? Q. Yes. 4 A. The fall that comes before, when the 5 Statement of Claim was issued. Was that 2006? Q. Yes, fall of 2006? 7 A. Yes. I didn't have my pleadings 8 list today, so the dates are... 9 MR. DEWART: The Statement of Claim was 10 issued in February of THE DEPONENT: Okay, then it was the 12 fall of 2006 when I was determining these 13 things, so yes BY MR. RANKING: Q. And when you say "determining these 17 things", I take it that what you are referring to is 18 determining the contemplated litigation and the 19 parties to the litigation? 20 A. Correct Q. And did you meet with Mr. Best on 22 one or more than one occasion to discuss the 23 contemplated litigation? 24 A. Probably more than once Q. And would that have been earlier

18 K.W. McKenzie than the fall of 2006, or would that have gone into ? 3 A. I can't pin that down now. 4 MR. DEWART: Sorry, Mr. Ranking, what 5 was that last question? I got distracted MR. RANKING: In terms of the timing for 7 his meeting with Mr. Best, whether it was 8 earlier than the fall of MR. DEWART: Thank you. And I am sorry, 10 what was the answer? MR. RANKING: I think it was that Mr. 12 McKenzie doesn't recall. 13 THE DEPONENT: Thank you. I can't pin 14 it down with finality. 15 MR. DEWART: Thank you. I apologize MR. RANKING: Will you undertake to 17 review your file to determine if you have 18 any notes of your meetings with Mr. Best? 19 MR. DEWART: Yes. U/T MR. RANKING: Thank you. 21 THE DEPONENT: Well, I have reviewed my 22 file, and I have no notes. 23 MR. DEWART: There you go BY MR. RANKING:

19 K.W. McKenzie Q. We discussed last day that you had a 2 number of interviews with John Knox and Jane Goddard 3 and Majorie Ilma Knox. Do I understand from your 4 evidence that those interviews also took place in 5 the fall of 2006? 6 A. Yes Q. Did you have... 8 A. Perhaps into I am saying up 9 to this Q. All right. 11 A. Drafting, you know...drafting you do 12 when you are...with the Statement of Claim Q. Right. What I am trying to get a 14 sense of here, Mr. McKenzie, is the date when you 15 formed the view that there was a claim, and 16 recognized that you would be asserting a claim. I 17 take it that that didn't occur any earlier than the 18 fall of 2006? 19 A. In that continuum of 2006 up to the 20 time when we issued the Statement of Claim, I 21 formulated the opinion that there was a lawsuit to 22 be proved Q. And when you talk about the 24 continuum in 2006, are you talking about the fall of forward?

20 K.W. McKenzie A. Yes Q. And so it wouldn't have been prior 3 to the fall of 2006; am I correct? 4 A. That is not the same...i am not 5 trying to be cute here. I am saying the fall of was when I was approached, and started Q. Right. 8 A....you know, what lawyers do to see 9 if there is a claim Q. So, it was the fall of 2006 when you 11 say...that is when you were approached by Donald 12 Best? 13 A. Correct Q. All right. And so I take it that we 15 are going to get to the retainer agreement 16 momentarily, but I take it that the retainer 17 agreement was executed at some point in the fall of ? 19 A. Correct Q. And when you refer to the fall of , do I understand that to be the 22 October/November 2006 time frame? 23 A. And including the whole of November, 24 perhaps part of December Q. All right, so the last quarter of

21 K.W. McKenzie ; is that a fair summary? 2 A. Fair Q. Okay. We will come to the retainer 4 agreement momentarily, but before I do, after you 5 had your meeting with Mr. Best, I understand that 6 you didn't take a copy of the agreement, based on 7 Mr. Dewart's letter of January the 28th. Did you 8 ever ask Mr. Best to provide you with a copy of the 9 agreement? 10 A. Eventually, I asked that he would 11 eventually need to give it to me when we got around 12 to having to worry about proving the claim itself Q. All right. So, that, I take it, 14 would have occurred at the meeting that you had with 15 Mr. Best in the fall of 2006? 16 A. In that continuum Q. Did you ever ask him to actually 18 provide you with a copy of the agreement? 19 A. I think I answered that Q. No, I think what you said is that 21 you told him, "At some point in time, you are going 22 to have to give me a copy of the agreement", but did 23 you ever ask for a copy? 24 A. I have got to explain. I hate 25 paper, and I will never take an original if I can

22 K.W. McKenzie help it. That is the nature of my way. Now, I 2 would have said, take it when we need to do...you 3 know, you give an explanation about an affidavit of 4 documents is, in due course, I will need this all, 5 and whatever the law clerks do, assemble or whatever 6 you call it...so, that is my answer Q. Do I understand from that answer 8 that Mr. Best showed you an original agreement, or 9 did he show you a copy? 10 A. I can't recall Q. Do you know where the agreement 12 exists today, or where it might be located? 13 A. No Q. Did you ever ask Mr. Knox to provide 15 you with a copy of the agreement? 16 A. Not that I recall Q. Okay. Now, I wrote to your counsel 18 following your last examination by letter dated 19 February the 4th. I am passing over a copy of my 20 letter, and I will deal with the retainer agreement 21 in the first paragraph momentarily, but before we 22 get there, I had also asked that inquiries be made 23 of John Knox, Jane Goddard, Kathleen Davis and 24 Majorie Ilma Knox with respect to the security 25 agreement; do you see that?

23 K.W. McKenzie MR. DEWART: I can tell you, he has not 2 seen this. You will be pleased to hear I 3 have not had any discussions with the 4 witness, since he is in the middle of being 5 cross-examined MR. RANKING: Right. 7 MR. DEWART: I can cut this short. 8 There are no properties on a witness, and 9 you are free to approach these people 10 yourself MR. RANKING: Well, you know the Rules 12 as well as I do, Mr. Dewart. The proper 13 procedure, given, in fact, the cooperation 14 agreement that your clients have with the 15 Knoxes is, they are not likely to speak to 16 me, and I am supposed to speak to and try 17 to obtain the undertaking through you. So, 18 I don't want to debate that. 19 MR. DEWART: Fine. It is not a 20 discovery. It is a cross-examination MR. RANKING: Right, and I am 22 cross-examining upon the agreement in 23 paragraph 46, and I would like to know 24 whether or not your client will provide an 25 undertaking to make inquiries of John Knox,

24 K.W. McKenzie Jane Goddard, Kathleen Davis and Marjorie 2 Ilma Knox for the production of what I have 3 referred to as the security agreement? 4 MR. DEWART: And the answer as I say is 5 no, you can approach these people yourself. 6 I would be surprised if your client didn't 7 have it already by virtue of the litigation 8 which is pending elsewhere, but in any 9 event... /R MR. RANKING: What litigation are you 11 referring to Mr. Dewart? 12 MR. DEWART: I understood there is 13 litigation pending in some other 14 jurisdiction MR. RANKING: But what jurisdiction 16 would that be, and what action do you say 17 PricewaterhouseCoopers' East Caribbean firm 18 is involved in that would actually MR. DEWART: I have MR. RANKING: Wait just a minute. Let 21 me finish, please, that would give 22 PricewaterhouseCoopers' East Caribbean firm 23 access to this document. 24 MR. DEWART: I have no particulars for 25 the other litigation which is pending, and

25 K.W. McKenzie if your client is not a party to it, or 2 doesn't have access, that is fine, too. 3 But as I say, you can approach these people 4 if you want that document MR. RANKING: All right, then. Then 6 would you please provide me with the 7 , telephone number and address of 8 John Knox? You have that information, 9 presumably, Mr. McKenzie? We can cut this 10 short. I would like the , telephone 11 number and addresses of each of John Knox, 12 Jane Goddard, Kathleen Davis, and Marjorie 13 Ilma Knox. 14 MR. DEWART: Unless the witness has 15 given them some assurance about 16 confidentiality, I have no problem giving 17 you the contact information MR. RANKING: And would you also MR. DEWART: But you should check with 20 the witness now, whether or not he has done 21 so MR. RANKING: And would you also, 23 please, confirm that I have your authority 24 to contact these individuals and indicate 25 that your counsel has permitted me to make

26 K.W. McKenzie the inquiry, that you have no difficulty 2 with them disclosing information to me. 3 MR. DEWART: You don't need that. There 4 is no relationship between this witness and 5 these people. They are just witnesses MR. RANKING: That is not a fair 7 recitation of the evidence, given what Mr. 8 McKenzie said before, that there is a 9 cooperation agreement. I have not seen the 10 cooperation agreement, I don't know its 11 terms, and I don't know that your summary 12 is, in fact, fair, that there is nothing 13 more than the fact that these are just 14 witnesses. 15 Had there not been a reference to a 16 cooperation agreement, Mr. Dewart, I might 17 have accepted your position, but I don't. 18 So, I will repeat my question. Do I have 19 Mr. McKenzie's undertaking, and you can 20 provide it to me now, that I can advise 21 each of John Knox, Jane Goddard, Kathleen 22 Davis and Marjorie Ilma Knox that they are 23 at liberty to speak with me concerning the 24 matters in issue in this proceeding, and in 25 particular, the security agreement pleaded

27 K.W. McKenzie at paragraph MR. DEWART: You can tell them that Mr. 3 McKenzie has no objection to their speaking 4 with you about anything. U/T MR. RANKING: Thank you. If we could 6 mark my letter to you, Mr. Dewart, as the 7 next exhibit? That will be Exhibit number EXHIBIT NO. 17: Letter from Mr. Ranking to Mr. 11 Dewart dated February 4, BY MR. RANKING: Q. Now, there is also reference, at 15 paragraph 22 of Mr. Knox's affidavit sworn November 16 12th to the trust agreement, the deals with the 17 shares of Kingsland. Do you have a copy of that 18 trust document, Mr. McKenzie? 19 A. No Q. And again, will you make inquiries 21 of John Knox, Jane Goddard and Kathleen Davis and 22 Marjorie Ilma Knox with request to the production of 23 that document? 24 MR. DEWART: No, you should approach 25 them yourself. /R

28 K.W. McKenzie MR. RANKING: All right. 2 3 BY MR. RANKING: Q. Do you know the name of the U.S. 5 attorney in Miami with whom the trust document is 6 lodged? 7 A. I don't know what "lodged" means Q. If I could just... 9 A. They have an attorney Q. Right. Do you know the name of the 11 attorney? 12 A. Michael Dribin Q. When you say they have an attorney, 14 I take it that is the Knox family? 15 A. I don't know who they represent, 16 but Q. And is it Mr. Dribin who is the 18 individual with whom the trust agreement was lodged, 19 and I am using the language that Mr. Knox used in 20 his affidavit. 21 A. No, I am just saying I can't help 22 you Q. What is Mr. Dribin's firm name; do 24 you know? 25 A. Broad Cassel, I believe. Broad and

29 K.W. McKenzie Cassel, maybe Q. Okay. And will you make inquiries 3 of Mr. Dribin, to request that he produce a copy of 4 the trust agreement? 5 MR. DEWART: Now, once again, you can 6 approach them yourself MR. RANKING: All right, and I just want 8 to make sure that I am clear, with respect 9 to the security agreement and contacting 10 the Knoxes, or with respect to the trust 11 agreement and contacting Mr. Dribin, I take 12 it that you have no difficulty...my 13 contacting, and Mr. McKenzie will not 14 object to my contacting any of John Knox, 15 Jane Goddard, Kathleen Davis, Marjorie Ilma 16 Knox or Mr. Dribin with respect to the 17 matters upon which I have been asking my 18 questions this morning. 19 MR. DEWART: You are correct that there 20 is no objection to your approaching these 21 people BY MR. RANKING: Q. I take it that, likewise, you have 25 no objection to those individuals producing the

30 K.W. McKenzie documents upon which I have been asking my questions 2 this morning? 3 A. That is correct Q. Okay, thank you. Now, in paragraphs 5 47 and 48 of the Amended Statement of Claim, which 6 is Exhibit 16, you go on to speak of the damages, 7 which you plead the plaintiff suffered. Do you have 8 any further details or particulars with respect to 9 the damages pleaded in either of those paragraphs, 10 Mr. McKenzie? 11 A. All I can say is, I could have 12 proved the case, had I gotten the opportunity to 13 prove the case, and those are usually experts that 14 you need to do those things, forensic people and Q. But I take it today, sir, you can't 16 provide any further particulars as to the damages? 17 A. Well, your clients have valued years 18 ago the entire company at $800 million US. It had 19 gone up Q. In fact, sir MR. DEWART: No, let him finish. 22 THE DEPONENT: And there are shares and 23 lands, which...i am no expert on real 24 estate in Barbados, but they have enormous 25 value, given their location.

31 K.W. McKenzie BY MR. RANKING: Q. Aside from that answer, sir, do you 3 have any other evidence? 4 A. I have some documents. My law clerk 5 would have copies of a few documents provided...i 6 believe, because you just get past through to...when 7 you have to assemble your Affidavit of Documents. 8 As I say, we never got there, but I think there are 9 some there Q. That indicate the damages that you 11 say were caused by reason of the actions of the 12 defendants? 13 A. They more likely that could prove 14 the damages. As you know, trials are about proving 15 that there is evidence to prove them, yes Q. If you have any documents that prove 17 the damages, I would like to see them. 18 MR. DEWART: Yes. U/T BY MR. RANKING: Q. Do you have any evidence that 22 PricewaterhouseCoopers actually valued the property? 23 It is news to me that my client, an accountant, acts 24 now in the business of valuing property. So, to the 25 extent that you make that comment, if you can tell

32 K.W. McKenzie me the basis upon which you rely, from a factual 2 standpoint, that Pricewaterhouse Coopers' East 3 Caribbean firm is a valuator, I would be obliged. 4 MR. DEWART: So what is the specific 5 question that was in the speech? THE DEPONENT: I am sorry I am not 7 sure MR. RANKING: What facts do you have to 9 support your claim the 10 PricewaterhouseCoopers has valued certain 11 properties at $800 million? 12 THE DEPONENT: The plaintiff's claim, 13 not my claim, just to be clear BY MR. RANKING: Q. No, your claim in your evidence, 17 sir. 18 A. Okay. There is a document published 19 to substantiate that number, yes Q. And you are saying that this is a 21 document that was prepared...a valuation that was 22 prepared and published by PricewaterhouseCoopers? 23 A. It was published by and on behalf 24 of...well, it is hearsay, of course, but the 25 Government of Barbados.

33 K.W. McKenzie Q. Okay. 2 A. I didn't get to prove the case, 3 so Q. Do you intend to commence the action 5 elsewhere, sir? 6 A. Me? Q. Yes. 8 A. No. 9 MR. DEWART: How is that relevant? He 10 has answered the question, go ahead BY MR. RANKING: Q. Indeed, did you ever determine the 14 location of the common shares of Kingsland MR. SILVER: So, was that a refusal? MR. RANKING: No, it would have been a 17 refusal, but the witness got in first and 18 said no. 19 MR. SILVER: I didn't hear that "no" BY MR. RANKING: Q. Did you ever determine the location 23 of the common shares of Kingsland? 24 A. The share certificates? Q. Yes.

34 K.W. McKenzie A. Didn't Mr. Knox say they are in 2 British Columbia? Q. He did. Did you ever take any steps 4 to determine where they were located in British 5 Columbia? 6 A. I don't know where they are located 7 in British Columbia, if they are located in British 8 Columbia. That is his evidence. That is my 9 knowledge Q. All right. And did you ever inquire 11 of Mr. Knox why the shares came to be located in 12 British Columbia? 13 A. No. I mean, he has got his evidence 14 there, and Q. When you say "he has his evidence 16 there", I take it you are referring to his affidavit 17 of November 12th? 18 A. Yes, as I recall, he says "they are 19 in British Columbia". So Q. He says in paragraph 23 that: 21 "...The shares of Kingsland themselves are 22 physically located in Canada as part of the 23 security arrangements discussed above, and 24 any issues with respect to that lodgement 25 are to be litigated in Canada..."

35 K.W. McKenzie A. Okay. So, I will take back what I 2 said, because they are in Canada, that is what he 3 told me. I mean, if it is what is in the affidavit, 4 I don't have as good a recollection as that 5 document Q. And I take it you drafted this 7 affidavit with Mr. Knox? 8 A. Yes Q. And did you ever ask to see the 10 share certificates? 11 A. No Q. Did you ever ask to speak with the 13 individual to whom the share certificates were 14 supposedly lodged? 15 A. No Q. Because I note that you do speak of 17 where the trust documents are lodged in paragraph of Mr. Knox's affidavit, but you don't speak of with 19 whom they are lodged in paragraph 23, correct? 20 A. Again, this is Mr. Knox speaking in 21 his affidavit Q. Yes. 23 A. He tells me things which I have no 24 reason to believe are not true, or I wouldn't let 25 them be in an affidavit, and that is the evidence.

36 K.W. McKenzie Q. Right, but you would agree with me, 2 sir, that the fact of the shares being in Canada is 3 certainly relevant to the jurisdiction motion that 4 was argued before Justice Shaughnessy? 5 A. I would think they would be a factor 6 to be taken into consideration Q. And given that fact, and the fact 8 that Mr. Knox is only making reference to the fact 9 that they are located in Canada, would it not be 10 relevant to you as counsel to determine whether 11 those shares were located in Ontario or elsewhere? 12 A. I am not sure I understand your 13 question Q. Would it not be relevant, sir, to 15 determine whether the shares were actually 16 physically located in Ontario? 17 MR. DEWART: That is what the witness 18 said, and you cross-examined him BY MR. RANKING: Q. I am asking you, sir, when you were 22 preparing this affidavit, did you not consider it to 23 be relevant to determine whether the share 24 certificates of Kingsland were located in Ontario? 25 A. So, what you are asking me is, did I

37 K.W. McKenzie go through his affidavit and run around and make 2 sure everything he said was true, perfectly true, 3 and that I had to see everything? No, I didn't, if 4 that is your question Q. That wasn't my question, but I will 6 ask my question again, and see if I can get an 7 answer this time. My question was, did you make 8 inquiry of Mr. Knox to determine where the actual 9 share certificates were physically located within 10 the country of Canada? 11 A. I don't recall asking him to be 12 specific as to they were in the same deposit box or 13 under his mattress or something, or somebody's 14 mattress. That is what you are asking? Q. That is what I am asking. So, I 16 take it from your answer, sir, you did not determine 17 whether the share certificates were located in 18 Ontario? 19 A. Correct Q. Now, there are certain other 21 allegations through this Amended Statement of Claim, 22 of allegations of conspiracy, in which the 23 allegations are all collectively made against the 24 defendants. Do you have any specific particulars as 25 to the individual defendants that are subject to one

38 K.W. McKenzie part of the conspiracy or another, to supplement 2 this Amended Statement of Claim? 3 MR. DEWART: Any particular...say that 4 again? Any particulars MR. RANKING: Well, there are different 6 allegations of conspiracy, but everybody is 7 all lumped together, Mr. Dewart. I would 8 just like to know whether or not there are 9 any particulars of which defendants 10 participated in the various conspiracies 11 that are pleaded. 12 MR. DEWART: Go ahead. 13 THE DEPONENT: The pleadings were the 14 best we could do at the time they were 15 issued. So, more particulars would have 16 come out of evidence BY MR. RANKING: Q. But you don't have any A. I don't Q. I am sorry; I thought you had 22 finished. 23 A. Of which we never got it all Q. All right. So, I take it you don't 25 have any further particulars today. Is that

39 K.W. McKenzie correct? 2 A. I am sorry, I am just having...i am 3 not sure I understood your question, but I cannot 4 particularize the entire conspiracy today Q. Let me help you. If you turn to 6 paragraph 63, there are specific conspiracies which 7 you allege, but all of them are directed towards the 8 defendants collectively. So, I am sitting here as 9 counsel for PricewaterhouseCoopers' East Caribbean 10 firm. I didn't know, when I read the Amended 11 Statement of Claim, whether you were alleging that 12 PricewaterhouseCoopers' East Caribbean firm partook 13 in all, some, or any of these particular 14 conspiratorial acts that are pleaded in paragraph 15 6(a) through (j). And I am asking you, do you have 16 any further particulars today? Sorry, I stopped at 17 (j); they go on for a number of pages. I apologize. 18 A. I think if you gave me the entire 19 file, I could particularize more or not with 20 evidence that has yet to come to me Q. Can you do it today, sir? Do you 22 have any knowledge today? 23 A. Knowledge? No Q. If I could ask you to turn up 25 Exhibit 6, which is the retainer agreement. I

40 K.W. McKenzie previously marked as Exhibit number 17 my letter to 2 your counsel dated February the 4th, and the first 3 paragraph of that letter confirms a request that I 4 had made by letter dated January 29th to bring the 5 original retainer agreement. Were you able to bring 6 that today, sir? 7 MR. DEWART: No, as I said. No, I did 8 not communicate with the witness about the 9 letter you sent me in the last few days, so 10 he is not aware of the request MR. RANKING: Well, certainly, you would 12 have relayed to Mr. McKenzie my request of 13 January the 29th? 14 MR. DEWART: It is not a foregone 15 conclusion. I have got a lot of files on 16 the go, Mr. Ranking. How is the original 17 relevant? MR. RANKING: It is very relevant, with 19 the greatest of respect, and in fact, your 20 client is obliged to bring originals to an 21 examination. 22 MR. DEWART: I do not see the relevance 23 of the original, unless you are prepared to 24 suggest that my client has perjured 25 himself, and uttered a forged document.

41 K.W. McKenzie MR. RANKING: I don't know what to 2 suggest, Mr. Dewart, until I see the 3 document. 4 MR. DEWART: I don't see how...we are 5 going in circles. I don't see how seeing 6 the original advances any relevant line of 7 inquiry. I take it there is no suggestion 8 that the witness has uttered a forged 9 document MR. RANKING: You are not at liberty to 11 make that assumption, and I am perfectly at 12 liberty to ask for an original, which is 13 what I do in all my cases. So, you 14 shouldn't take anything from it, other than 15 I am doing my job. Will you undertake to 16 produce the original? 17 MR. DEWART: No. /R MR. RANKING: Why not? 19 MR. DEWART: Because, Mr. Ranking, you 20 are loading up the undertakings. It is a 21 great deal of work. It is all at the very 22 periphery of what is relevant on this 23 motion. If I could be permitted to finish, 24 there is no suggestion which has been made 25 in anything in the reams of material which

42 K.W. McKenzie has been served to suggest that this 2 witness has uttered forged documents. That 3 could be the only reason for pursuing this 4 line of inquiry. If you are prepared to 5 suggest on what basis he may have uttered a 6 forged document, I will reconsider our 7 position, but if you are just making a lot 8 of work for me, the answer is no. 9 MR. SILVER: The undertaking was given 10 the last day. 11 MR. DEWART: If that is the case MR. SILVER: It is the case. 13 MR. DEWART: Fine. If I review the 14 transcript, and that is the case, 15 obviously, I will comply with an 16 undertaking. I can't believe I gave it, 17 but if I did, I did. 18 MR. SILVER: It was given right at the 19 time the document was marked. 20 MR. DEWART: That is the beauty of a 21 transcript, Mr. Silver. We will find out. 22 And if I have given the undertaking, I am 23 not suggesting for a moment that I can 24 retract it. 25

43 K.W. McKenzie BY MR. RANKING: Q. I take it that Exhibit number 6 is 3 the same retainer that is referred to at paragraph 9 4 of your affidavit? 5 A. There is only one retainer document. 6 This is it Q. Right. Now, you have the document 8 in front of you. Is that your handwriting, Mr. 9 McKenzie, or is that Mr. Best's handwriting? 10 A. That is my handwriting, except his 11 scrawling Q. All right. And do I read the 13 document correctly when I MR. SILVER: Sorry, I didn't hear. 15 Except his what? 16 THE DEPONENT: Scrawling. 17 MR. SILVER: Where is his scrawling? MR. RANKING: I took Mr. McKenzie to 19 mean his signature, "DB", but I could be 20 wrong. 21 THE DEPONENT: Sorry, which question am 22 I...I am confused. I was looking at MR. DEWART: In fairness, your answer 24 was not clear. I knew what you meant, but 25 explain...what is his scrawl? Point to his

44 K.W. McKenzie scrawl. 2 THE DEPONENT: There are two lines here, 3 which I would have put on the document. I 4 signed. He signed. 5 MR. DEWART: What is his scrawl? Just 6 for the record. The record is not clear. 7 THE DEPONENT: Okay. It is the line 8 above my signature, DB. 9 MR. DEWART: The witness is indicating 10 at the bottom of the document the initials 11 "DB" appear, and I believe he is saying 12 that that is Best's handwriting, but the 13 balance of the handwriting on the document 14 is his BY MR. RANKING: Q. And can you tell me...when did you 18 write this document? 19 A. I met with him. I got the document 20 signed in that period of the fall Q. Where did you meet him? 22 A. I don't recall specifically Q. Was there anybody else at the 24 meeting? 25 A. I don't recall.

45 K.W. McKenzie Q. Do you recall where you met them? 2 MR. DEWART: You just asked that, and he 3 said he didn't recall MR. RANKING: All right, I apologize. 5 6 BY MR. RANKING: Q. And what were the circumstances 8 leading up to your drafting this retainer agreement? 9 A. The usual. Take a look at this. I 10 made some inquiries, went back and said, "Okay, I 11 think you have got a case. I will take it" Q. And so I take it you have an initial 13 discussion with Mr. Best. You then made some 14 inquiries, and you then met with him to agree to 15 take on the case; is that your evidence? 16 A. I think I just said that, but yes Q. And when did you have your initial 18 inquiries with Mr. Best? 19 A. I think this all happened in the 20 fall of that year Q. And what discussion did you have, 22 prior to preparing this document, with respect to 23 the terms upon which you would take on the 24 litigation? 25 A. If I think the case can be proved, I

46 K.W. McKenzie will tell you, and then we will see if you want to 2 hire me. That is the usual banter, I am sure, 3 between lawyers and clients Q. And what steps did you take to 5 determine whether or not, in your view, the case 6 could be proved before you entered into this 7 retainer agreement? 8 A. I listened to him and reviewed his 9 documents, talked to John Knox, perhaps Jane, looked 10 at some other...i made my own inquiries, basically, 11 and was satisfied that there was a case. In my 12 opinion, anyway Q. And when you say you made your own 14 inquiries, what inquiries did you make? 15 A. I think I spoke with a lawyer, Mr. 16 Sheppard, an accountant...joe. It will come to me; 17 I just can't remember the name, and a tax guy Q. Did you discuss with...sorry, just 19 before I go on, you made reference to the fact that 20 you reviewed his document. I take that to be the 21 security agreement upon which I have already 22 examined you? 23 A. Yes Q. And for the purpose of the record, 25 let me just read this into the record. As I

47 K.W. McKenzie understand or decipher your handwriting, it says: 2 "...Don, okay I am prepared to take on this 3 litigation under your terms of security and 4 privacy, but you have to realize success is 5 nowhere near guaranteed - this is full 6 hourly rate, i.e., not contingency. 7 Signed, Bill..." 8 Have I read that correctly? 9 A. Correct Q. All right. Now, was Mr. Best 11 imploring you to take on the...first of all, when we 12 talk about the litigation, I take it we are talking 13 about the claim that was ultimately started in 14 Ontario? 15 A. The real one, not the one I made a 16 mistake on Q. Right. By Nelson Barbados Group 18 Limited? 19 A. Yes Q. All right. And you say: 21 "...Okay, I am prepared to take on this 22 litigation..." 23 What is the backdrop to that phrase? Had he been 24 imploring you to take on the litigation, and were 25 you doing it reluctantly?

48 K.W. McKenzie A. No Q. And you go on to say: 3 "...Under your terms of security and 4 privacy..." 5 What were the terms of security and privacy? 6 A. Well, he has his own, did then, and 7 I am sure it has gotten worse, but, concerns about 8 his personal security, his family, his business 9 dealings. He is a private guy, and privacy. So, he 10 has...as I recall him explaining it to me, is 11 just...you know, I am not...just be careful. I 12 mean, I have my way, and I don't want to use staff, 13 I don't want to...i want to just deal with you, and 14 he just...what I would call his way of doing things. 15 It wasn't onerous, it was just, that was okay that I 16 would honour, perhaps, his requests. They weren't 17 onerous, but they were to be respected Q. And did he actually identify 19 specific terms of security and privacy which he 20 expected you to adhere to? 21 A. Just generally Q. What do you mean by that? 23 A. Well, I knew that he was a very 24 private person who was very concerned about other 25 people knowing about his affairs, perhaps, and it is

49 K.W. McKenzie a normal thing. I mean, he just had a few extra 2 things which were above what you normally see with a 3 client, perhaps Q. Because normally, you would agree 5 that as a solicitor and in the course of a 6 solicitor-client relationship that you have a 7 fiduciary duty to maintain confidence, correct? 8 A. Well, that is for sure, but this was 9 more arrangements than that. He doesn't like 10 , for instance Q. So, what were the additional 12 arrangements that he was insisting upon? 13 A. "Keep me posted. Leave the stuff at 14 the front counter". We went through all these sort 15 of things at my office. "I will have it picekd up". 16 "Don't send me mail", kind of thing. "I will call 17 you if"...on a sort of semi-regular basis. I didn't 18 call him. I didn't have a phone number. I don't 19 think I ever said...i mean, "No mail", that kind of 20 thing Q. Right. So that I understand, he 22 asked you not to send him any mail? 23 A. Our arrangement was that if there 24 was something, a document for his company, right? 25 The company that was the plaintiff, it would be left

50 K.W. McKenzie at the front counter. We have pigeon holes, if you 2 want, under "N" for Nelson Barbados. So, there is a 3 flow of litigation that is...he would tune in, call 4 me, and I would say, "Well, this has happened. Call 5 me next week or two weeks or a month from now", or, 6 "I am going on holiday" or something, whatever Q. All right. So, let me just 8 understand the protocol that he was asking you to 9 follow, according to your evidence. The first was 10 that you were not to send him any mail, correct? 11 And he was to pick up the A. Well, he didn't get Q....correspondence or packages? 14 A. I should do it the other way. He 15 was not giving me an address. The address of the 16 corporation is where it is, at 40-whatever it is 17 Coldwater, and that was the arrangement. In other 18 words, it is more my concern. "How do I get stuff 19 to you?" Q. And in fact, as you know from the 21 review of the incorporating documents and the 22 corporate profile, you understood that he only used 23 a post office box, correct? 24 A. No, the arrangement was 40 Coldwater 25 Street...

51 K.W. McKenzie Q. No, but my point is, you understood, 2 as a consequence of incorporating his company, that 3 Mr. Best did not use a residential address? I can 4 pull it up, if you want... 5 A. I never got his residential address Q. Right. 7 A. We made other arrangements Q. Right. And as can be seen from the 9 order that was in the corporate profile report, he 10 used a post office box. Did you understand that? 11 A. Whatever I was given was used Q. All right. So, just dealing, then, 13 with respect to your arrangements, he did not give 14 you a residential address, correct? 15 A. That is correct Q. All right. He did not give you a 17 post office box, correct? 18 A. He gave me...40 Coldwater was where 19 we would leave stuff. I am saying if there was a 20 piece of paper in a corporation thing that had a 21 post office box in it, or anything else, he didn't 22 give it to me Q. All right. So he didn't give you a 24 post office box address, and he didn't give you an 25 address, correct?

52 K.W. McKenzie A. There was one time...one period, and 2 I think it was at my request, that he had a 3 Hotmail...never really set up a Hotmail, because I 4 had to get something, and I was going to be overseas 5 or something. I am not even sure I used it, but 6 that would be, to the best of my recollection Q. All right. And over what period of 8 time did that remain operative, the Hotmail account? 9 A. I think it was one set of 10 circumstances which Q. And that was because you were out of 12 town? 13 A. I was concerned that...this was me. 14 I was concerned that if he tried to contact me, and 15 I...there was something that I would not be able to 16 be reached...i think it was because...i have a GSM 17 phone, and it didn't work wherever I was going or 18 something like that Q. All right. 20 A. So, that was me just saying, "Just 21 in case" Q. But you were giving him your 23 Hotmail, or did he set up a Hotmail for A. No, I just..."what do we do?" He is 25 the guy that has got these things...to respect your