B. Halfin

In a complex construction delay action regarding the Toronto York Spadina Subway Extension, the plaintiff contractor and defendant transit commission brought cross-motions regarding refusals and undertakings from examinations for discovery.

The court applied the principle of proportionality under Rule 29.2.03 to resolve the remaining disputes.

The court ordered the plaintiff to produce a breakdown of estimated project costs and a sample of 75 Requests for Information, but denied requests for the plaintiff's profit and loss reports and the internal correspondence of its scheduling consultant.

The defendant was ordered to produce the time periods for its liquidated damages claims against contractors at other stations.

The Toronto Transit Commission (TTC) brought a motion for leave to file additional evidence on an upcoming motion regarding litigation privilege over approximately 1,600 documents.

TTC also sought a preliminary ruling on waiver of privilege related to a sealed document.

The court dismissed the motion to file additional evidence, finding it unnecessary, an improper use of an adjournment, and contrary to the rule against case splitting.

The court directed the responding party to inspect the sealed document on a without prejudice basis and adjourned the waiver issue to the return of the main motion.

The plaintiff contractor brought a motion to compel the defendant transit commission to produce an unredacted copy of a project assessment report prepared by a third-party consultant.

The defendant claimed litigation privilege over the redacted portions, arguing they were prepared in reasonable contemplation of litigation regarding delay claims.

The court found that while litigation was reasonably contemplated, the defendant failed to establish that the dominant purpose of the redacted portions was litigation, as the report was primarily commissioned to assess project status, scheduling, and budget to expedite completion.

The motion was granted, and the defendant was ordered to produce the unredacted report.

The applicant commenced an action and an application following the termination of a services agreement, arguing the arbitration clause did not survive termination.

The respondent moved to stay the proceedings in favour of arbitration.

The court applied the competence-competence principle, finding it was arguable that the dispute fell within the arbitration clause and that the clause survived termination.

The court granted the motion to stay the action against the corporate respondent under the International Commercial Arbitration Act, and stayed the action against the individual defendants under the Courts of Justice Act, leaving the jurisdictional challenges to be determined by the arbitral tribunal.