D. Leduc

The parties in a complex construction dispute involving multiple actions and counterclaims submitted a consent Discovery Plan to the case management judge.

The court ordered that the Discovery Plan, which sets out key dates for the exchange of affidavits of documents, virtual examinations for discovery, and detailed e-discovery protocols including search terms and metadata load file requirements, applies to the proceeding.

The applicant, HMI, brought a motion to refer a consolidated construction lien action, involving seventeen liens totaling over $42 million, to a single private arbitration and to stay the court proceedings.

The consolidated action was divided into three streams (A, B, C) based on contractual relationships.

The motion was opposed by various lien claimants and other parties.

The court dismissed the motion, finding that a consolidated arbitration could not be ordered due to significant conflicts in arbitration clauses across the different contracts, the inclusion of third parties who had not consented to arbitration, the failure to follow contractual dispute resolution protocols (including mediation), and potential for increased costs and delays for some parties.

The court emphasized the consensual nature of arbitration and declined to impose non-consensual amendments to contracts or stay the court action.