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1 Court File No. 07-CV-326246 PD2
2
3 ONTARIO
4 SUPERIOR COURT OF JUSTICE
5
6 B E T W E E N:
7
8 KAREN BARBER by her Litigation guardian DEBBIE DODGE
9
10 Plaintiff
11 - and -
12
13 LOBLAW COMPANIES LIMITED, YORKTOWN PROPERTY
14 MAINTENANCE INC., ARCTURUS REALTY CORPORATION,
15 COMMUNITY LIVING TORONTO, FAIRFAX ADULT DEVELOPMENT
16 PROGRAM and GOLDEN MILE SHOPPING CENTRE
17
18 Defendants
19
20 -------------------------------------------------------
21 -
22 This is the Examination for Discovery of
23 JOHN TALEVSKI, on behalf of the Defendant YORKTOWN
24 PROPERTY MAINTENANCE INC. herein, taken at the offices
25 of Network Reporting & Mediation, One First Canadian
26 Place, Suite 800, 100 King St. West, Toronto, Ontario,
27 on the 7th day of July, 2009.
28 -------------------------------------------------------
29 -
30
31 A P P E A R A N C E S:
32
33 RENEE VINETT Solicitor for the Plaintiff
34
35 PAUL E.F. MARTIN Solicitor for the Defendant
36 (LOBLAW COMPANIES LIMITED)
37
38 COLIN S. JACKSON Solicitor for the Defendant
39 (YORKTOWN PROPERTY MAINTENANCE INC.)
40
41 MATTHEW J.M. LEFAVE Solicitor for the Defendant
42 (ARCTURUS REALTY CORPORATION)
43

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1 JOHN TALEVSKI - 2
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1 T. CRAIG EDWARDS Solicitor for the Defendants
2 (COMMUNITY LIVING TORONTO,
3 FAIRFAX ADULT DEVELOPMENT PROGRAM)

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1 I N D E X O F P R O C E E D I N G S

3 DESCRIPTION PAGE NO.

4 JOHN TALEVSKI; Sworn. 3

5 EXAMINATION BY MS. VINETT 3

6 EXAMINATION BY MR. LEFAVE 40

7 EXAMINATION BY MR. MARTIN 50

8
9

10 INDEX OF UNDERTAKINGS

11 REFERENCE NO. PAGE NO.

12 --- UNDERTAKING NO. 1 .................................11

13 --- UNDERTAKING NO. 2 .................................28

14 --- UNDERTAKING NO. 3..................................39

15

16

17 INDEX OF REFUSALS

18 REFERENCE NO. PAGE NO.

19 --- REFUSAL NO. 1......................................38

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1 --- Upon commencing at 12:40 p.m.

2 JOHN TALEVSKI (Sworn)

3 EXAMINATION BY MS. VINETT:

4 1. Q. Okay, could you state your full name?

5 A. John Talevski.

6 2. Q. Okay, and your last name is spelled T-A-L-E-

7 V-S-K-I?

8 A. That’s correct.

9 3. Q. Okay, and have you been sworn to tell the

10 truth today?

11 A. Yes, I have.

12 MS. VINETT: Okay, and Counsel, just

13 confirming that Mr. Talevski is here as a

14 representative of Yorktown Property Maintenance Inc.

15 and that his answers are binding on the corporation?

16 MR. JACKSON: Yes.

17 BY MS. VINETT:

18 4. Q. Okay, Mr. Talevski, what is your role at

19 Yorktown. Your role, what is your position or role?

20 A. I’m one of the directors.

21 5. Q. Are there –- okay, are you a president? Do

22 you have an office, particular title, president?

23 A. President, yes.

24 6. Q. Okay. Is this –- how many directors would

25 there be?

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1 A. Three.

2 7. Q. Three, is it a family run company?

3 A. Yes.

4 8. Q. Okay, so the other directors would be ---

5 A. My brothers.

6 9. Q. Okay. And where do you reside?

7 A. In Scarborough.

8 10. Q. And the head offices for Yorktown are where?

9 A. 21 Bertrand Avenue.

10 11. Q. Twenty-one?

11 A. Bertrand, B-E-R-T like Tom, R-A-N-D.

12 12. Q. And what are your responsibilities with the

13 company?

14 A. General responsibilities?

15 13. Q. Yes.

16 A. To open the shop every day, make sure

17 the equipment is fit for the wintertime and during the

18 wintertime make sure the job is done properly.

19 14. Q. Okay, and how many –- at the time of this

20 incident, it was an accident that occurred on January

21 24th, 2005, how many employees would you have had at

22 that time?

23 A. Four.

24 15. Q. And who are they?

25 A. That was Mike Talevski, Lewis Talevski,

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1 myself and Willis Martin.

2 MR. EDWARDS: What was that last name, sorry?

3 THE DEPONENT: Martin.

4 BY MS. VINETT:

5 16. Q. Okay, so Mike and Lewis, I take it, are your

6 brothers?

7 A. Um-hmm. That’s correct.

8 17. Q. And in particular which one of these

9 individuals would be responsible for the winter

10 maintenance at the Golden Mile Shopping Centre?

11 A. That was me, Mike and Willis.

12 18. Q. And I understand that you were –- that you

13 dealt directly with the property manager through

14 Arcturus for Golden Mile Shopping Centre that would be

15 Debora Heath, is that right.

16 A. When you say directly what do you mean

17 I don’t understand that.

18 19. Q. Did -- was she the one –- was she your

19 contact person for the property?

20 A. Yes, she was, yes.

21 20. Q. Okay. And can you tell me what your

22 relationship with Debora Heath was prior to this

23 incident in 2000 -- in January 2005?

24 MR. JACKSON: Sorry, I don’t understand the

25 question?

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1 BY MS. VINETT:

2 21. Q. Just -- okay, I’ll clarify. I’m not

3 suggesting anything weird here, I just, I -- okay,

4 what I’m asking is how often would you have

5 communications with Debora Heath?

6 A. Not very often.

7 22. Q. You never had communications with her?

8 A. We have but not -- maybe once a month.

9 23. Q. So, you would be in contact with her

10 approximately once a month before this accident?

11 A. Sometime more than once a month.

12 24. Q. Okay, and can you tell me what the reasons

13 for your contact once a month or sometimes more?

14 A. Well, I don’t really have to contact

15 her. She will see me in the parking lot every

16 morning. She used to be only person -- she used to

17 arrive there about 5:30, 6:00 in the morning.

18 25. Q. And did you speak with her those mornings?

19 A. Every time I was in the parking lot she

20 was there so I did, she will approach me.

21 26. Q. Can you just tell me, you know, just

22 generally what the content of your conversation would

23 be -- and I’m just really talking specifically about

24 if it had anything to do with the maintenance of the

25 parking lot?

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1 A. Yes. She would say there was a lot of

2 snow last night, this looks great, don’t forget to

3 salt the areas, don’t forget this, the same, the usual

4 things. Never a problem.

5 27. Q. Okay, I understand that, but first of all

6 what was your understanding as to Yorktown’s

7 responsibilities at the Golden Mile Shopping Centre?

8 A. Whatever the contract specify.

9 28. Q. Okay.

10 A. That’s was our understanding.

11 29. Q. And were you the person who negotiated the

12 contract?

13 A. I was.

14 30. Q. Okay. Can you tell me what you recall was

15 the -- were the terms -- in terms of your

16 responsibilities of the winter maintenance of that

17 property?

18 A. Sure.

19 31. Q. Okay.

20 A. To control the property during extended

21 snowfalls, to be there in the mall making sure that

22 all entrances and exits are open for the people.

23 After every snowfall, salt the complete parking lot

24 areas, entrance and exit again and the sidewalk areas,

25 clear the snow and salt, and the snow to be stacked

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1 high up to the contract area’s specifications.

2 32. Q. As far as you knew, was Yorktown the only

3 company –- or were you guys the only ones responsible

4 for the winter maintenance of that property?

5 A. Yes, we were.

6 33. Q. Okay, so you didn’t expect that any of the

7 shop owners in the mall would do any type of winter

8 maintenance?

9 A. I wouldn’t know.

10 34. Q. You don’t know about that?

11 A. I don’t know about that.

12 35. Q. Okay, did you expect that any of the

13 employees of Arcturus would salt the areas in the

14 parking lot or surrounding the mall?

15 A. I don’t know. That wasn’t in the

16 contract that they will be doing so -- I don’t know.

17 36. Q. Okay, would you have expected that they were

18 doing it?

19 A. Not really.

20 37. Q. Okay, your understanding was that Yorktown

21 was the only one responsible for that?

22 A. I knew we were responsible for the

23 parking lot area and the sidewalks, I knew that.

24 38. Q. Okay, and we do have some records, well, let

25 me just try to make some sense myself of this. With

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1 respect to the contract that you entered into with

2 Arcturus on behalf of Loblaws. I understand the term

3 of the contract was from November 1st, 2004 to April

4 30th, 2007 and that it was basically six months each

5 year from November 1st to April 30th would be the

6 period where you would be providing service, is that

7 correct?

8 A. That’s correct.

9 39. Q. Okay, and there is no question that you were

10 providing service on January 24, 2005?

11 A. That’s correct.

12 40. Q. Okay, in Paragraph 11 at page 4 of the

13 contract there was -- there is a provision for

14 insurance and the one that I think is the most

15 important is subparagraph B, where it talks about the

16 contractor role during the term maintained at least

17 comprehensive general liability insurance, automobile

18 liability insurance and quote all risks contractor

19 equipment insurance and it goes on. It goes on and

20 then eventually says for the performance of the

21 services. So you did in fact have active insurance at

22 the time of this incident?

23 A. Yes, we did.

24 41. Q. Okay, and who was your insurer?

25 A. I don’t know right now.

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1 MS. VINETT: Do you know, Counsel?

2 MR. JACKSON: Aviva.

3 MS. VINETT: Counsel, do you know what the

4 third party liability limits are?

5 MR. JACKSON: I’m advised that they’re five

6 million.

7 MS. VINETT: Okay, could you provide us with

8 a copy of the declaration page?

9 MR. JACKSON: I will ask for that.

10 --- UNDERTAKING NO. 1

11 MS. VINETT: And do you know if Arcturus or

12 O&Y Properties, a former name, or Loblaws were named

13 insured under that policy?

14 THE DEPONENT: I don’t know.

15 MS. VINETT: Do you know?

16 MR. JACKSON: Yes, there were additional

17 insureds under the policy, one was O&Y Enterprise and

18 the other was -- sorry the other was Arcturus Realty

19 Corp. and the other was Loblaw Properties Limited.

20 BY MS. VINETT:

21 42. Q. Okay, and there is –- do you know if you

22 provided Arcturus with copies of all the insurance

23 policies that related to the property?

24 A. To my knowledge I think we did because

25 they expected proof of insurance.

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1 43. Q. There is a release and indemnity clause at

2 Paragraph 12, that’s at the bottom of page 4, what was

3 your understanding about this provision about this

4 release and indemnity?

5 MR. JACKSON: Are you asking for a legal

6 interpretation?

7 MS. VINETT: No, I am asking for his

8 understanding of what the release and indemnity clause

9 meant to him.

10 THE DEPONENT: I don’t know.

11 BY MS. VINETT:

12 44. Q. You don’t know and -- but you were the one

13 who negotiated this contract?

14 A. Yes, I have, yes, I have.

15 45. Q. Okay, and you were the one who signed the

16 contract if I’m not mistaken, I’m trying to see if

17 I’ve got a ---

18 A. Yes, that’s me, yes.

19 46. Q. Yes, okay, so you confirm that you did sign?

20 A. Um-hmm.

21 47. Q. How long has Yorktown been in business?

22 A. For 25 years.

23 48. Q. Okay, and I just want to confirm did you

24 read this contract before you signed it?

25 A. You have to read it because the manager

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1 will go with you, with me, so it has to be -- and then

2 I will take it back to the office and read it again.

3 49. Q. Okay, and when you say we took it back to

4 the office and we read it again who would read it with

5 you?

6 A. Me and my brothers.

7 50. Q. Okay, and there is a provision in here and I

8 just -- it talks about that the contractor being

9 Yorktown was releasing O&Y and the centre which would

10 be Loblaws for cost, any losses, cost, expense, injury

11 or claim that it has or might require in any way

12 arising from or connected with its activities, so,

13 pursuant to this contract, so anything with respect to

14 snow removal maintenance -- winter maintenance of the

15 parking lot and walkways and entranceways. It has a

16 clause here and if you want to just look at it

17 yourself it’s at one, two, three, four, five, six, it

18 starts at line six of Paragraph 12 A and it says,

19 well, the line before pursuant to this contract that’s

20 –- I’ve already read about their –- you’re releasing

21 them from any liability, it says pursuant to this

22 contract regardless of how caused and whether or not

23 O&Y Properties or a released person is or are

24 negligent, do you see that?

25 A. Yes, I do.

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1 51. Q. Okay, did you have any understanding as to

2 what that meant when you signed this contract?

3 A. Not a 100 percent.

4 52. Q. Well, what did you understand even if it

5 wasn’t 100 percent?

6 A. Okay, I understand that if it was any

7 lawsuits against the company, their property manager

8 would be excluded from any lawsuits.

9 53. Q. Okay, so when you say against the company

10 are you talking about against your Yorktown?

11 A. No.

12 54. Q. Against Arcturus?

13 A. Yes.

14 55. Q. And I guess would that include Loblaws?

15 A. I can’t tell you that --

16 56. Q. Okay.

17 A. -- because I don’t know. I was more ---

18 57. Q. Okay, and it goes on to say -– if you follow

19 that same line it says like in parentheses sub

20 Paragraph 2, indemnifies O&Y Properties Inc. and each

21 release persons against all loss, cost, expenses,

22 claims and all injury arising out of activities of the

23 contractor in performing the services or any breach by

24 the contractor. Did you understand -- what did that

25 mean to you?

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1 A. Basically then if you neglected the

2 property doing a snowfall or doing a snow operation

3 that we would be responsible for any losses or any

4 falls or ---

5 58. Q. And there -- if you will return to Schedule

6 A of the contract, it’s got a description of services.

7 At Paragraph 1 it says that the contractor will apply

8 salt and plough to ensure that the centre is in safe

9 condition and free of hazards at all times with, and

10 I’m just pulling out key phrases, at all times without

11 any prior direction from O&Y enterprises. So, you

12 were -- correct me if I’m misinterpreting this but was

13 it your understanding that -- you were the one -- your

14 company were the ones to determine when service was

15 needed and to provide that service without waiting for

16 a call from Arcturus or Loblaws?

17 A. Correct.

18 59. Q. Okay, and Paragraph 2 says unless weather

19 conditions dictate otherwise, that the work, and I’m

20 paraphrasing but, the work would be performed between

21 7:00 pm and 7:00 am, seven days a week, however the

22 last line says this service is to be performed as

23 necessary on a 24 hour basis, do you see that?

24 A. Um-hmm.

25 60. Q. Okay, so did you understand that you were

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1 required to maintain the property 24 hours a day,

2 seven days a week?

3 A. Yes.

4 61. Q. Did you receive a schematic of the parking

5 lot area and the entranceways of the Golden Mile

6 Shopping Centre?

7 A. Yes.

8 62. Q. Okay, could you provide us with a copy of

9 that?

10 A. I -- I don’t know where it is now. I

11 don’t have it on file right now.

12 63. Q. Okay, I understand that you’re no longer

13 doing the maintenance for the Golden Mile Shopping

14 Centre?

15 A. Yes.

16 64. Q. Okay, so you don’t believe you still have a

17 copy of that?

18 A. No.

19 65. Q. Okay.

20 A. But I know I was given one.

21 66. Q. Okay, would you just look and see if you by

22 chance have it.

23 A. The Golden Mile has it. I know they

24 still have the files.

25 67. Q. Okay.

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1 A. If you need that one, I don’t know if I

2 can find it.

3 68. Q. Okay, well, I don’t know, just best efforts.

4 MR. JACKSON: Well, I don’t know what that

5 entails, so let’s ask. Do you have a box around

6 somewhere that has the Golden --

7 THE DEPONENT: No.

8 MR. JACKSON: -- Mile maintenance records?

9 So where would you look?

10 THE DEPONENT: In a file or something.

11 MR. JACKSON: But what file would you still

12 have?

13 THE DEPONENT: I still have some papers.

14 MR. JACKSON: Okay, and can you access them

15 easily without too much trouble.

16 THE DEPONENT: No.

17 MR. JACKSON: Where are they?

18 THE DEPONENT: In storage.

19 MR. JACKSON: Okay, how do you get them back

20 from storage?

21 THE DEPONENT: I have to arrange to go there

22 and see if I can find it.

23 MR. JACKSON: Okay.

24 MS. VINETT: Well.

25 MR. JACKSON: Can we not see if Golden Mile

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1 has it first?

2 MS. VINETT: Exactly, yes, yes, I’ll ---

3 MR. JACKSON: Thank you.

4 MS. VINETT: Maybe just go off the record

5 for a second.

6 --- OFF THE RECORD DISCUSSION---

7 BY MS. VINETT:

8 69. Q. Now, under Paragraph 3, it says that a crew

9 will be left on-site during heavy snowfalls, was ---

10 A. Where is -- number three?

11 70. Q. Yes, number three.

12 A. Yes.

13 71. Q. And was there any need for -– did you leave

14 a crew there during heavy snowfalls?

15 A. That was me.

16 72. Q. Oh that was you, okay, so you would, you’d

17 just stay there until the job was done.

18 A. The shop is very close by, it’s about

19 five minutes drive.

20 73. Q. Okay.

21 A. So, I would be there.

22 74. Q. Okay.

23 A. And they have a coffee shop in there

24 too.

25 75. Q. Okay, in Paragraph 8, the contractor will

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1 maintain accurate logs as to the times and dates of

2 their attendance and their duties performed, do you

3 see that?

4 A. Yes.

5 76. Q. Okay, and it goes on to say that those logs

6 would be submitted monthly to the manager -- were

7 those logs produced monthly to the manager?

8 A. I don’t remember if they were produced

9 at the time of this contract, so I’m not sure.

10 77. Q. Okay, Counsel, if I could see your logs.

11 MR. JACKSON: Yes.

12 MS. VINETT: You’ve got a copy there that

13 you can show your client?

14 MR. JACKSON: I have.

15 BY MS. VINETT:

16 78. Q. Okay, I’ve been given what looks like a

17 maintenance log and the first date on the log is

18 January 17, 2005, do you see that?

19 A. Yes, I do.

20 79. Q. Okay, and who would have prepared this

21 document?

22 A. Myself.

23 80. Q. And I see there’s various dates, on each

24 date, I mean is this a document that was prepared each

25 day?

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1 A. Yes.

2 81. Q. Okay, and was it recorded at the time that

3 the services were being provided?

4 A. Ninety percent of the time.

5 82. Q. And if it -– the other ten percent of the

6 time, when was it made?

7 A. Back in the shop.

8 83. Q. Would that -- would it still be on the day

9 that the service was provided?

10 A. Yes.

11 84. Q. Okay, and if I just go to -– on the bottom

12 of page -- of the first page it says January 22nd,

13 2005 and it goes on to talk about.

14 MR. JACKSON: Sorry, Counsel, did you say.

15 MS. VINETT: January.

16 MR. JACKSON: Twenty-two.

17 MS. VINETT: Yes.

18 MR. JACKSON: Thank you, got it.

19 BY MS. VINETT:

20 85. Q. 2005 and it -- your entry is you went

21 salting all the malls, heavy salt, if I’m reading that

22 correctly and correct me if I’m wrong, ---

23 A. It is.

24 86. Q. --- at 6:00 am, start to snow in the

25 morning, very cold, at night ploughed all malls,

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1 finished at 5:30 am, then went salting, very cold

2 temperature minus 38, right. There -- on the second

3 page there is a -- an entry that said `sun came out,

4 help melting slush.’ Is that for January 22nd, that

5 that entry is?

6 A. No.

7 87. Q. What date is that for the sun coming out?

8 A. According to this, it’s January 24.

9 88. Q. Okay. Okay, when you say that the sun came

10 out and helped melting slush, would that involve some

11 type of melting of the snow or slush that was on the

12 ground?

13 A. No, that wasn’t on the ground, it’s the

14 slush from the snow piles, so when there’s sun outside

15 it will start melting and go to the parking lot area.

16 89. Q. Okay, and at the time of this incident on

17 January 24, 2005, did -- were there any of these snow

18 piles near the main entrance to the Golden Mile?

19 A. No, they won’t allow us to put it there.

20 90. Q. Okay, and on January the 24th, there appears

21 to be two entries. It says -– the first one says

22 ‘went salting all malls only morning’ was that ---

23 A. Early morning, yes.

24 91. Q. Oh, is that early or only?

25 A. Early, early.

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1 92. Q. Early, okay.

2 A. Yes.

3 93. Q. Early morning and then the next entry says

4 ‘went salting all malls 2:00 pm’.

5 A. That’s correct.

6 94. Q. Okay. When you say all malls what malls are

7 you referring to?

8 A. I was referring to Parkway Mall.

9 95. Q. So, it would be parkway as well as the

10 Golden Mile?

11 A. I don’t understand, it was a different

12 mall.

13 96. Q. Okay, so is this entry – ‘went salting all

14 malls early morning’, does that refer to salting

15 Golden Mile?

16 A. Yes.

17 97. Q. Okay, as well as the other mall?

18 A. That’s correct.

19 98. Q. And you went salting all malls again at 2:00

20 pm it says. Was there a reason why you attended at

21 2:00 pm?

22 A. I won’t remember today, but if it’s

23 there it’s because it needed to be salted again.

24 99. Q. How did you know that it needed to be salted

25 at 2:00 pm?

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1 A. Because we -- like I said, we only five

2 minutes, ten minutes from the shop so we patrol the

3 area.

4 100. Q. Okay.

5 A. Yes.

6 101. Q. And do you have a record of your

7 patrols?

8 A. Some, not all the time.

9 102. Q. Do you have a record of the patrols

10 that are -- were conducted on January 24, 2005?

11 A. No.

12 103. Q. And can you tell me, in January of

13 2005, was there some sort of a schedule for patrolling

14 that you can remember?

15 A. No, not -- we don’t have a schedule,

16 like I said to you before we are only like five, ten

17 minutes from the mall, so if it snows in my property,

18 I’m quite sure it will snow on the Golden Mile.

19 104. Q. Okay.

20 A. You know like for five minutes

21 difference.

22 105. Q. Sure.

23 A. If it was from the airport to the –-

24 yes, then you have to have very different schedules to

25 do that, but for you know -- like I said, I can walk

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1 to the mall from the shop, so if it really snows in my

2 shop and I see that it’s not dry in the parking lot, I

3 think I should go there.

4 106. Q. And do you have any records or any

5 information, knowledge or belief as to why you believe

6 it needed salting at two o’clock on January 24, 2005?

7 A. At this time, no, ma’am, I won’t know

8 but after doing it for 24 years, I think I knew what I

9 was calling for but at this time like today I won’t

10 remember why.

11 107. Q. So this other mall that you were

12 salting, the Golden Mile, what -- I miss the name of

13 the other mall.

14 A. Parkway Mall.

15 108. Q. Parkway Mall and how far apart would

16 Parkway Mall be from Golden Mile?

17 A. The Golden Mile is five to ten minutes,

18 Parkway Mall fifteen to twenty.

19 109. Q. So, fifteen to twenty from your office?

20 A. From the shop.

21 110. Q. From the shop?

22 A. Yes.

23 111. Q. And from Golden Mile, how far away

24 would Parkway Mall be?

25 A. Probably 15 minutes or 20 minutes.

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1 112. Q. So if this entry says 2:00 pm which

2 mall did you go to first?

3 A. My responsibility was the Golden Mile.

4 113. Q. So, this is your entry strictly for the

5 Golden Mile?

6 A. No, for both, if I say both malls then

7 it’s two.

8 114. Q. Okay but you would have attended only

9 at Golden Mile?

10 A. That’s correct.

11 MR. JACKSON: I understand his evidence,

12 Counsel, is that there were two separate crews, I

13 think. Is that right?

14 THE DEPONENT: That’s right.

15 BY MS. VINETT:

16 115. Q. Okay, and on the day of this particular

17 incidence January 24, 2005 who was -- what members --

18 I know you said that one of your brothers, and Willis

19 I believe, as well as yourself were responsible for

20 the Golden Mile property, did -- who maintained that

21 property on January 24th, 2005?

22 A. At Golden Mile?

23 116. Q. Yes.

24 A. Myself.

25 117. Q. Only you?

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1 A. Only me.

2 118. Q. And is there any record of how much

3 salt you used that day or at two o’clock when you went

4 to?

5 A. That is about between eight and ten

6 tonnes.

7 119. Q. Is there any record of that?

8 A. I don’t understand what you mean,

9 record for what?

10 120. Q. Do you have a record that you salted,

11 do you have a record as to what amount of salt you

12 used when you salted?

13 A. Well, every time we salt it, it was

14 between eight and ten tonnes, we didn’t put any less.

15 121. Q. Okay.

16 MR. LEFAVE: Sorry, did you say you can’t

17 put any less?

18 THE DEPONENT: Well, you could but you’re

19 not going to do a good job.

20 MR. LEFAVE: Okay.

21 BY MS. VINETT:

22 122. Q. And how was the salt applied to the

23 walkways and the -- the entranceways.

24 A. The entranceways? Mechanically.

25 123. Q. With what?

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1 A. With a truck.

2 124. Q. What kind of a truck, a regular size

3 truck?

4 A. That would be full tandem truck.

5 125. Q. Full tandem truck?

6 A. Yes.

7 126. Q. Okay, and I know that your counsel has

8 some photographs of the entrance to Golden Mile that

9 he’s showing you. Now, and Counsel, since we’ve used

10 these photographs a lot throughout the various

11 discoveries, would you be willing to produce a copy of

12 them to us?

13 MR. JACKSON: Yes, I’m happy to waive

14 privilege on the actual photographs you’ve also – the

15 photographs are mounted on what’s described as a photo

16 sheet which I’m not waiving privilege for but yes, I’m

17 content to produce the actual photographs.

18 MS. VINETT: Okay, that would be very

19 helpful, thank you. So, if you could provide ---

20 MR. JACKSON: Do you want -- I mean ---

21 MS. VINETT: I’m sorry.

22 MR. JACKSON: Do you want a photocopy or do

23 you want a laser copy?

24 MS. VINETT: I think that now laser color

25 copies are always better.

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1 MR. JACKSON: Okay, so you have the

2 recourses to pay for that I presume?

3 MS. VINETT: Yes.

4 MR. JACKSON: Anybody else?

5 MR. LEFAVE: Sure.

6 MR. MARTIN: Yes.

7 MR. EDWARDS: Sure.

8 MR. JACKSON: Okay, laser copies for

9 everyone at their expense.

10 --- UNDERTAKING NO. 2

11 BY MS. VINETT:

12 127. Q. Thank you. If you could look at the

13 photographs there, I think they’re numbered one

14 through five and, not that I have them completely

15 memorized or anything but the entranceway, maybe I’ll

16 just walk around and make sure that we’re talking

17 about the same thing, okay? The entranceway that’s

18 depicted in photograph three of the series of five

19 photographs, there appears to be two cement columns in

20 the front part there, do you see those?

21 A. Yes, ma’am.

22 128. Q. Okay, and -- so the salting -– and in

23 the centre, if it’s fair to say, there’s a glassed

24 area that as I understand it, to the right or left of

25 that area would be sliding doors.

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1 A. That’s correct.

2 129. Q. Okay. So when you’ve referred to

3 salting of the entranceway, are you referring to

4 salting in front of these doors, on either side of the

5 entrance?

6 A. Ma’am, in here, if you see this line.

7 130. Q. Yes.

8 A. That’s the sidewalk.

9 131. Q. Okay.

10 A. After this bollard, that’s the roadway,

11 in here would be done with a salt spreader and by hand.

12 132. Q. Okay, so just for the record.

13 A. Yes.

14 133. Q. You’re referring to photograph four and

15 in photograph four there is like a tire track if you

16 will.

17 A. No, no, it’s like a curve.

18 134. Q. Oh it’s like a curve okay.

19 A. Not really, ma’am.

20 135. Q. But there’s a line there.

21 A. It’s – it’s a line like it’s separating

22 the roadway with the sidewalk.

23 136. Q. Okay, so the line that --

24 A. Yes.

25 137. Q. -- that’s there is separating the

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1 sidewalk which would be to the right side of the

2 photograph -– no, the driveway would be to the right

3 side of the photograph and the sidewalk would be to

4 the left side?

5 A. That’s correct.

6 138. Q. Okay, and so what you’re saying is is

7 that the roadway would be salted with a tandem salting

8 truck?

9 A. Yes, with a -- yes, with a truck, yes,

10 mechanically.

11 139. Q. Okay, and the sidewalk portion would be

12 salted by hand?

13 A. Will be salted by hand and with a

14 spreader --

15 140. Q. Okay.

16 A. -- like a fertilizers, that type of a

17 spreader.

18 141. Q. That just would --

19 A. Yes.

20 142. Q. -- spray it around, it would swirl it

21 around.

22 A. Yes, it would then go in that area

23 especially all these area because I want to make sure

24 these cars are accessible to people to put them back

25 and take them out.

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1 143. Q. Okay.

2 A. Yes.

3 144. Q. Okay, and you would’ve done that actual

4 salt spreading yourself?

5 A. I would do the truck.

6 145. Q. You would do the truck?

7 A. Yes, I was only in the truck, I don’t

8 do the sidewalk.

9 146. Q. Okay, who did the sidewalk?

10 A. Willis.

11 147. Q. Willis did sidewalks, so on the day ---

12 MR. JACKSON: Okay, just to correct that and

13 I didn’t want to jump in but you indicated earlier in

14 a question by my friend that you were the only one

15 there that day.

16 THE DEPONENT: It’s a mistake.

17 MR. JACKSON: I understand.

18 THE DEPONENT: I’m sorry.

19 MS. VINETT: That’s okay.

20 THE DEPONENT: Yes, yes.

21 BY MS. VINETT:

22 148. Q. So Willis would have been the --

23 A. Yes.

24 149. Q. -- individual who actually took care of

25 the sidewalks?

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1 A. That’s his job.

2 150. Q. Okay.

3 A. When it snows that was his job. I’m

4 sorry.

5 151. Q. That’s okay.

6 A. Now I know why you guys get paid big

7 bucks, now I know.

8 152. Q. Is Willis still employed with your

9 company?

10 A. Yes, ma’am.

11 153. Q. Okay. Would Willis have kept any

12 records separate from the records that you’ve shown

13 us?

14 A. The only records he kept, ma’am, was

15 his hours that he can get paid.

16 MS. VINETT: Okay, and Counsel, have you got

17 any statements from Willis as, with respect to the

18 accident incident?

19 MR. JACKSON: No.

20 BY MS. VINETT:

21 154. Q. Okay, if you -- there is a –- now, if

22 this says 2:00 pm, how long would you have actually

23 been at the premises that day at Golden Mile, how long

24 would it take?

25 A. Ma’am, roughly, you take maybe an hour,

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1 an hour and a half to do the proper job. That’s just

2 for salting though.

3 155. Q. Salting only.

4 A. An hour -- only, yes.

5 156. Q. And on this day, this was just a

6 salting operation?

7 A. Just salting, let me just double check

8 here ma’am. Salting, yes, just salting.

9 157. Q. And there is an incident report that is

10 -– your counsel has a copy of it, but the real issue

11 is that there is some information that after –- well,

12 first of all do you know where this person fell?

13 A. No, ma’am.

14 158. Q. When were you first notified of the

15 accident?

16 A. I think it was a few months later.

17 MR. JACKSON: Well, I’ll correct that later,

18 if necessary if I should do it now ---

19 MS. VINETT: Yes, go ahead.

20 MR. JACKSON: I think his evidence is that

21 he first became aware of it when he was served, his

22 company was served a Statement of Claim. Am I right

23 about that.

24 THE DEPONENT: That’s correct.

25 MS. VINETT: Okay.

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1 MR. JACKSON: Which I don’t think was until

2 2007.

3 BY MS. VINETT:

4 159. Q. Okay. Okay, and there seems to be an

5 indication by some of the witnesses that there was a

6 property worker, I don’t know who they are referring

7 to but they call it a property worker who started

8 salting the area around the girl who fell.

9 A. After or before ma’am?

10 160. Q. After she fell.

11 A. After she fell?

12 161. Q. She was still on the ground is what

13 they seem to be saying here and that the worker asked

14 Karen how she was several times. Do you have any

15 knowledge, information or belief with respect to

16 whether that was you or Willis who was salting?

17 A. No ma’am.

18 162. Q. You have no information?

19 A. Willis -- Willis would never go by

20 himself or I won’t go –- it’s always the truck and the

21 pickup truck behind.

22 163. Q. So, and you have no recollection of

23 anyone falling on January 24, 2005?

24 A. No, ma’am.

25 164. Q. And Willis never told you that he saw

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1 someone fall or was there when someone -- after

2 someone had fallen? No?

3 A. No, no, we always went together and

4 left together because if I needed salt, we have to go

5 and load, if he needed it -- so it’s never one guy

6 alone.

7 165. Q. And did Yorktown ever leave salt on the

8 premises for the use of you know, the property

9 managers or security guards or anybody on the property

10 to be used in between times that Yorktown ---

11 A. It was never requested, ma’am.

12 166. Q. Okay, so you never did leave any there?

13 A. No, not in the premises.

14 167. Q. Do you have any information knowledge

15 or belief with respect to who may have salted the area

16 around this person when she fell?

17 A. No, ma’am.

18 168. Q. Following this incident were you

19 contacted by Arcturus to discuss the accident?

20 A. No, ma’am.

21 MS. VINETT: I don’t have a copy of these

22 but I know that there is –- I’ve seen the Environment

23 Canada, I just want to confirm your understanding of

24 what the temperature was on the day of this incident

25 and your counsel has that document.

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1 MR. JACKSON: That’s fine Counsel, and

2 obviously it’s not his record so he can read it as you

3 can read it.

4 MS. VINETT: Oh okay, I didn’t –- did you ---

5 MR. JACKSON: Sorry.

6 BY MS. VINETT:

7 169. Q. Okay, I’ll back up then, that’s fair

8 enough. Did you obtain reports from any weather

9 service?

10 A. No, ma’am.

11 170. Q. Okay, so.

12 A. When you say weather, the only thing I

13 know when it’s in the radio, in the news, it’s going

14 to snow, what time, we get ready hours before that,

15 that’s the only source --

16 171. Q. Of -- of the.

17 A. -- that we know, yes.

18 172. Q. Okay, okay. If we could just go off

19 the record for a second.

20 --- OFF THE RECORD DISCUSSION---

21 BY MS. VINETT:

22 173. Q. At any time during the course of this

23 particular contract which I believe commenced on

24 August 12, 2004, did Arcturus or anyone from that

25 organization or any patrons of the Golden Mile, I say

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1 patrons -- I mean tenants of the Golden Mile Plaza, if

2 they ever contacted you with any complaints or

3 concerns with respect to the service you were

4 providing for the winter maintenance?

5 A. Tenants or people that work for the

6 Golden Mile?

7 174. Q. Yes, anyone affiliated with the Golden

8 Mile?

9 A. Okay, yes couple times.

10 175. Q. Who contacted you?

11 A. Mr. -- the maintenance supervisor Steve.

12 176. Q. And what did -- do you know when that

13 occurred?

14 A. Can I answer this ma’am?

15 --- OFF THE RECORD DISCUSSION---

16 177. Q. And can you tell me what the

17 circumstances were of Steve contacting you?

18 A. Yes, one time he phoned me saying if I

19 could remove some snow from the receiving areas in the

20 back for the trucks.

21 178. Q. Okay, any other reasons for him to

22 contact you?

23 A. No.

24 179. Q. Just to confirm, you weren’t contacted

25 by anybody affiliated with Golden Mile, tenants or

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1 property management or anything like that, with

2 respect to the sidewalks?

3 A. No, ma’am.

4 180. Q. Okay, what about the roadway?

5 A. No.

6 181. Q. Okay, parking lot?

7 A. No.

8 182. Q. Other than of course what you already

9 told us. Are you aware of any prior accidents at

10 Golden Mile during the course of the August 12, 2004

11 contract?

12 MR. JACKSON: Don’t answer the question.

13 --- REFUSAL NO. 1

14 MS. VINETT: You can’t blame a girl for

15 trying.

16 MR. JACKSON: I don’t blame you at all for

17 trying.

18 BY MS. VINETT:

19 183. Q. Could you tell me if there was anyone

20 in particular who was overseeing the work that was

21 being done by Yorktown through Arcturus?

22 A. Yes, ma’am.

23 184. Q. Who was doing that?

24 A. That would be the manager.

25 185. Q. Okay, Debora Heath?

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1 A. Yes, ma’am like I said before she used

2 be there sometime 5:00, 5:30 by the parking lot and

3 approach me, close to my truck, park beside my truck.

4 At six o’clock Steve, the maintenance supervisor in

5 charge of the operation, he will ask me if I want a

6 coffee and that everything looks good and then every

7 time was a snowfall or light dusting or freezing rain,

8 they always were there, especially the manager, that’s

9 why not too many meetings in the office because I use

10 to see them in the parking lot.

11 MS. VINETT: Counsel, could I have an

12 undertaking that you would produce the names and

13 addresses of any witnesses you intend to call at trial

14 to go through the summaries of their evidence?

15 MR. JACKSON: Yes.

16 --- UNDERTAKING NO. 3

17 MS. VINETT: Counsel, any problems with

18 coverage with respect to the policy?

19 MR. JACKSON: No.

20 MS. VINETT: Okay, any surveillance of my

21 client?

22 MR. JACKSON: No.

23 MS. VINETT: Any experts’ reports?

24 MR. JACKSON: No, other than the reports --

25 other than the medical reports that you have provided

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1 as part of the medical brief.

2 MS. VINETT: Okay. Do you have any witness

3 statements?

4 MR. JACKSON: No. I’d like to correct

5 something I indicated earlier, I told you the limit is

6 for five million.

7 MS. VINETT: Yes.

8 MR. JACKSON: They’re two.

9 MS. VINETT: Other than the evidence that

10 I’ve heard from your client and what we’ve heard thus

11 far in the examinations and probably will here at

12 future examinations what evidence are you relying upon

13 to support the denial of liability?

14 MR. JACKSON: Nothing other than you’ve

15 heard so far.

16 MS. VINETT: Thank you. I believe that

17 those are my questions subject to any -- questions

18 arising from the answers to the undertakings.

19 EXAMINATION BY MR. LEFAVE:

20 186. Q. Dickie was the franchisee of the No

21 Frills store?

22 A. That’s what I’m aware of.

23 187. Q. Do you know Dickie, would you have seen

24 him?

25 A. Never met him.

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1 188. Q. What do you know of him, if any?

2 A. That he’s very strict.

3 189. Q. And when ---

4 A. That ---

5 190. Q. Sorry, go ahead.

6 A. He wanted to make sure that the plaza

7 and the entrance was black during the winter.

8 191. Q. Where did you learn that from if not

9 Dickie himself?

10 A. From the maintenance supervisors and

11 the two employees he hired himself to make sure all

12 the shopping carts are available, there was two all

13 the time.

14 192. Q. Those two employees that he hired to

15 deal with the shopping carts, did you ever notice them

16 with any salt?

17 A. No.

18 193. Q. Did you ever notice them do any

19 maintenance outside of the -- outside of --

20 A. For sure.

21 194. Q. -- outside of the shopping centre?

22 Okay, and when you were doing your duties, were you

23 mindful of that of Dickie’s insistence that the

24 entranceway be kept clear?

25 A. Yes, I was, because he told me if he’s

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1 not happy you’re not going to get the contract.

2 195. Q. Right, you mentioned earlier that you

3 would bring eight to ten tonnes of salt to do the job,

4 yes?

5 A. Yes.

6 196. Q. When Willis would go distribute the

7 salt on the sidewalk by hand, he would take from the

8 same pool of sand -- excuse me, of salt, it would

9 still come from that eight to ten tonnes?

10 A. No, no.

11 197. Q. He had a separate?

12 A. It’s just a pickup truck in the back.

13 198. Q. Right.

14 A. And he will have a spreader --

15 199. Q. Yes.

16 A. -- or a shovel.

17 200. Q. Okay, and you would follow behind him

18 when you would do sidewalks?

19 A. No, I would follow behind or he would

20 follow me from the shop to the mall.

21 201. Q. Okay.

22 A. We would drive together.

23 202. Q. Once you got there you would do your

24 thing, he would do his?

25 A. He does his own thing.

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1 203. Q. Would you have an opportunity while you

2 were doing your job to physically see Willis put the

3 salt on the entranceway?

4 A. Yes, sometime -- yes, all the time

5 because I used to bring him coffees and sandwiches,

6 we’ll stop have a cigarette and then we keep going.

7 204. Q. Do you have a specific recollection of

8 -- of this day watching Willis put the salt in front

9 of the entranceway? Like sitting here today do you

10 remember?

11 A. No, no.

12 205. Q. You mentioned earlier that you would go

13 through the contract and that is the snow removal

14 contract that you and Ms. Heath went through -- you

15 went through that with Ms. Heath and what sorts of

16 things would she bring to your attention or do you

17 remember?

18 A. I don’t remember.

19 206. Q. Okay.

20 A. I do remember some of the things like

21 she goes -- the most clear things that she wanted the

22 snow and the area she specified --

23 207. Q. Right.

24 A. -- I want the snow here, I don’t want

25 to close this, I knew she was very strict about that --

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1 208. Q. Okay.

2 A. -- wanted the snow to be accumulated.

3 209. Q. Okay, and -- but you do remember

4 sitting down with her and going over it.

5 A. Yes, yes, I do.

6 210. Q. And you do remember going back to your

7 office later and going over it with your brothers, the

8 contract?

9 A. Yes.

10 MR. LEFAVE: Okay. Counsel, earlier you

11 indicated that Arcturus and O&Y were additional

12 insureds under the policy.

13 MR. JACKSON: Yes.

14 MR. LEFAVE: And you’ve undertaken to

15 provide a copy of the declaration page, do you have a

16 copy of the declaration page?

17 MR. JACKSON: I don’t, the problem I have,

18 if I had it today I’d produce it but what they’ve sent

19 me is a dec page for a later policy period.

20 MR. LEFAVE: Okay, but you’re confident that

21 that was in place at the time?

22 MR. JACKSON: Yes.

23 BY MR. LEFAVE:

24 211. Q. Okay. You may have already answered

25 this, but you didn’t speak with any security guards

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1 that day on site the day of the fall?

2 A. No, sir.

3 212. Q. Would you know if Willis did?

4 A. No.

5 213. Q. You wouldn’t know?

6 A. If something happens --

7 214. Q. Yes.

8 A. -- he’s going to bring it to my

9 attention.

10 215. Q. Yes, you’re very confident that he

11 wouldn’t have spoken to them?

12 A. No.

13 216. Q. Okay. Would you --

14 A. Excuse me what time did the accident

15 happen, sir?

16 217. Q. That’s a good question.

17 A. Okay.

18 218. Q. Some -- we think at two o’clock in the

19 afternoon but there is some indication it might have

20 been in the morning around ten o’clock.

21 A. Because if it was two o’clock, there’s

22 a lot of people around there.

23 219. Q. Yes.

24 A. What was the day, like, Friday,

25 Wednesday, what was it?

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1 MS. VINETT: Monday, I think.

2 THE DEPONENT: Monday.

3 MR. JACKSON: Monday.

4 THE DEPONENT: Monday is a busy day.

5 BY MR. LEFAVE:

6 220. Q. Yes. Let me back up a moment. I think

7 you said that every day there is some snow or ice that

8 would fall, Ms. Heath would be there early in the

9 morning.

10 A. Always, yes.

11 221. Q. How about Steve or Slobodan, is it the

12 same man?

13 A. No, that was Steve Kotevski or

14 something like that.

15 222. Q. Okay.

16 A. He’s still working there, now.

17 223. Q. Yes, would he be there every day that

18 ---

19 A. Oh yes.

20 224. Q. Okay, and he would come slightly later

21 maybe at six o’clock in the morning?

22 A. 6:00, quarter to 6:00.

23 225. Q. And they would meet you in the parking

24 lot?

25 A. Well, first Debora.

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1 226. Q. Yes.

2 A. Then she would leave --

3 227. Q. Yes.

4 A. -- and then with Steve ---

5 228. Q. Yes.

6 A. -- come with his truck, minivan that he

7 lock and goes.

8 229. Q. Right.

9 A. Very good, that’s it.

10 230. Q. Did you carry any pager or cell-phone

11 with you while you worked?

12 A. Only cell-phone.

13 231. Q. Cell-phone? And did Debora and Steve

14 have that number?

15 A. Yes, they do.

16 232. Q. Other than what you’ve told us already

17 did they ever call you to come to remove snow on your

18 cell-phone? The one time you mentioned ---

19 A. Can you specify that, to remove what,

20 snow like sometimes they want snow removal?

21 233. Q. Yes.

22 A. Like you have to understand, when you

23 say remove snow, sometimes it’s extra charge if you

24 say I want the snow removed from here to here, that’s

25 -- or remove snow when it fell on the parking.

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1 234. Q. That’s what I mean.

2 A. No.

3 235. Q. Okay. Did you ever receive a call on

4 your cell-phone with respect to coming back to place

5 more salt?

6 A. No.

7 236. Q. Did you know that Debora and Steve had

8 an office on the premises?

9 A. Yes.

10 237. Q. You knew where that was?

11 A. Yes.

12 238. Q. And you knew if you had any problems

13 that you could go to that office and discuss things

14 with them?

15 A. Yes.

16 239. Q. Do you know if you used the entire load

17 of salt that day, that is the eight or ten tonnes of

18 salt, you would use it all before you leave?

19 A. I would use it all, yes. Sir, --

20 240. Q. Yes.

21 A. -- why wouldn’t you use it all?

22 Because if you leave it and you park the truck, the

23 salt will freeze like cement.

24 241. Q. Yes.

25 A. So, it would be really stupid for

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1 anybody in the business to leave salt.

2 242. Q. Waste your salt.

3 A. No, not waste it, it becomes like

4 cement.

5 243. Q. Yes.

6 A. So, you can’t use it again.

7 244. Q. Right, it’s wasted

8 A. No, you couldn’t use the truck --

9 MR. JACKSON: It would damage the truck.

10 THE DEPONENT: -- because it would freeze

11 the chains.

12 BY MR. LEFAVE:

13 245. Q. Got you.

14 A. Yes, sorry.

15 246. Q. My fault. Okay. Let’s just go off the

16 record.

17 --- OFF THE RECORD DISCUSSION---

18 MR. LEFAVE: Counsel, in light of the fact

19 that my client is a named insured under your policy

20 and that there is a provision at Paragraph 12 of the

21 services agreement which indicates that even in the

22 event that my client is negligence -- negligent,

23 excuse me for the duties undertaken under the contract

24 what information are you relying upon in support of

25 your cross claim against my client.

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1 MR. JACKSON: The coverage that your client

2 is afforded under my principle’s policy with respect

3 to the operations of its insured Yorktown, it does not

4 cover for any conduct on the part of your client.

5 MR. LEFAVE: Well that’s with respect to the

6 policy ---

7 MR. JACKSON: Yes, I’m going to get to

8 those, the second part of your question.

9 MR. LEFAVE: Sorry.

10 MR. JACKSON: The answer to the second part

11 of your question is that it is my client’s position

12 that the clause upon which your client relies in

13 attempting to exculpate its own liability or

14 negligence is unenforceable in law.

15 MR. LEFAVE: Okay, subject to any questions

16 arising from answers to undertakings, those are all my

17 questions.

18 EXAMINATION BY MR. MARTIN:

19 MR. MARTIN: What are the grounds for

20 unenforceable in law for your position?

21 MR. JACKSON: Well you can read the case law

22 as easily as I can but my position is -- my client’s

23 position is the case authorities do not support the

24 proposition that you can contract out of

25 responsibility for your own negligence.

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1 BY MR. MARTIN:

2 247. Q. How many malls are you looking after

3 these days?

4 A. None.

5 248. Q. Oh you got totally out of the business?

6 A. Last year was with Golden Mile, that

7 was in 2007.

8 249. Q. But prior to the accident you were in

9 the business for about 25 years.

10 A. Yes.

11 250. Q. And were you always the President of

12 the company or -- it was always that company, right --

13 A. Yes, yes.

14 251. Q. -- and you were always the president of

15 the company. Was it common that you would have a

16 number of malls going at the same time for winter

17 season?

18 A. Well, it was never too many, maybe

19 three.

20 252. Q. Right, two or three, yes.

21 A. Yes, you can’t do more than you ---

22 253. Q. Was it your understanding that in most

23 of those cases or if in all of those cases that the

24 centre would -- or that the mall would require written

25 contacts?

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1 A. All the malls had different contracts.

2 254. Q. Okay, but they had written contracts or

3 something.

4 A. Yes, yes, sometime we supply our own

5 contract --

6 255. Q. Okay.

7 A. -- and they will sign our contract.

8 256. Q. Right. Those are my questions.

9 MR. EDWARDS: I have no questions.

10 MR. JACKSON: Thank you gentlemen.

11

12

13

14 --- WHEREUPON THE EXAMINATION WAS ADJOURNED

15

16 I hereby certify that this is the

17 examination of JOHN TALEVSKI, taken before

18 me to the best of my skill and ability on

19 the 7th day of July, 2009.

20
21 ------------------------------------

22 MEGAN SELF - Court Reporter

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