This endorsement addresses nine complex refusals motions involving six parties in a multi-action construction litigation concerning the Toronto York Spadina Subway Extension (TYSSE) project.
The motions primarily involve Walsh Construction Company Canada (WCC) and the Toronto Transit Commission (TTC), along with various subcontractors.
The court applies principles of relevance, proportionality, and litigation privilege under the Rules of Civil Procedure to determine the scope of discovery for numerous documents and questions, including design issues, project schedules, financial information, and subcontractor claims.
Many disputes were resolved by agreement or case management, with the court providing specific directions for further production and inquiry.
interesting_citations_summary: >
The decision provides a detailed application of discovery principles under Rules 31.06, 29.2.03, and 1.04(1)/(1.1) of the Rules of Civil Procedure, emphasizing proportionality in complex litigation.
It also offers a nuanced discussion of litigation privilege, particularly in the context of contractual claims processes running concurrently with active litigation, distinguishing from McNally International Inc. v. Toronto Transit Commission where litigation commenced after the claims process.
The court highlights the need for a document-by-document assessment of dominant purpose for privilege claims.
final_judgement: >
The court issued specific orders and directions for each group of refusals motions, requiring parties to make reasonable inquiries, produce relevant non-privileged documents, and provide clarifications within specified timelines (mostly 30-60 days).
Many refusals were resolved by agreement or narrowed by the court.
The court adjourned some requests pending further production and ordered a supplementary affidavit of documents for privilege claims.
The parties were encouraged to agree on costs or submit written submissions.
winning_degree_applicant: 3
winning_degree_respondent: 3
judge_bias_applicant: 0
judge_bias_respondent: 0
year: 2019
decision_number: 1630
file_number:
- "CV-17-582560"
- "CV-18-598782"
- "CV-15-520309"
- "CV-17-583090"
- "CV-15-543109"
- "CV-16-557406"
source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1630/2019onsc1630.html"
keywords:
- Construction litigation
- Discovery
- Refusals motion
- Proportionality
- Litigation privilege
- Rules of Civil Procedure
- Construction Act
- Toronto York Spadina Subway Extension
- Contract disputes
- Delay claims
areas_of_law:
- Civil Procedure
- Construction Law
- Evidence
cited_cases:
legislation:
- title: "Construction Act, R.S.O. 1990, c.
C.30, as amended"
url: "https://www.ontario.ca/laws/statute/90c30"
- title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194"
url: "https://www.ontario.ca/laws/regulation/900194"
case_law:
- title: "Ontario v. Rothmans Inc., 2011 ONSC 2504"
url: "https://www.canlii.org/en/on/onsc/doc/2011/2011onsc2504/2011onsc2504.html"
- title: "Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917"
url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc917/2013onsc917.html"
- title: "McNally International Inc. v. Toronto Transit Commission, [2005] O.J. No. 1011"
url: "https://www.canlii.org/en/on/onsc/doc/2005/2005canlii7090/2005canlii7090.html"
- title: "Contos v. Kingsway, [2001] O.J. No. 1327 (Ont.
Sup.
Ct.)"
url: "https://www.canlii.org/en/on/onsc/doc/2001/2001canlii62787/2001canlii62787.html"
---
COURT FILE NO S.: CV-17-582560, CV-18-598782, CV-15-520309, CV-17-583090, CV-15-543109, CV-16-557406
MOTION S HEARD: 20190128, 20190129 and 20190130
REASONS RELEASED: 20190222
SUPERIOR COURT OF JUSTICE – ONTARIO
In the Matter of the [Construction Act, R.S.O. 1990, c.
C.30, as amended](https://www.ontario.ca/laws/statute/90c30)
**BETWEEN:**
**WALSH CONSTRUCTION COMPANY CANADA**
Plaintiff
- and-
**TORONTO TRANSIT COMMISSION, YORK UNIVERSITY, UNITED PARCEL SERVICE CANADA LTD., THE REGIONAL MUNICIPALITY OF YORK, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE, and CITY OF TORONTO**
Defendants
**BEFORE:** MASTER M.P. McGRAW
**COUNSEL:**
B. Halfin, G. Smith and M. Mandel
Email: bhalfin@goodmans.ca
-for Walsh Construction Company Canada
E. Morgan and M. Aboud
Email: emorgan@osler.com
-for Toronto Transit Commission
E. Bisceglia
Email: ebisceglia@lawtoronto.com
-for Interborough Electric Incorporated
A. Payne
Email: paynea@bennettjones.com
- for Schindler Elevator Corporation
A. Visheau
Email: avisheau@kmlaw.com
- for Limen Group Const. Ltd. and Limen Structures Ltd.
REASONS RELEASED: February 22, 2019
NOTE: This is a corrected version of the Reasons For Endorsement initially released to counsel.
# Reasons For Endorsement
# I. Introduction
[1] These actions arise from the construction of the Steeles West (Pioneer Village) Subway Station in Toronto (“SW”).
SW is part of the Toronto York Spadina Subway Extension, a $3.184 billion construction project comprised of 6 above ground stations and an 8.6 km subway tunnel running from Sheppard Avenue West in Toronto to the Vaughan Corporate Centre in York Region (the “TYSSE”).
[2] As set out in the Case Management Direction of Justice Koehnen dated December 19, 2017 (the “Direction”), this is highly complex litigation involving over 20 actions, more than 40 parties and 33 sets of lawyers.
[3] Examinations for discovery were conducted almost daily between September 17 and December 7, 2018.
As a result, 9 motions involving 6 parties to compel answers to approximately 680 refusals proceeded before this Court over 3 days.
# II.
The Parties, the Actions and the Motions
[4] Walsh Construction Company Canada (“WCC”) was the successful bidder for the construction of SW (the “Project”).
Pursuant to a Contract with the Toronto Transit Commission (“TTC”) dated September 22, 2011, WCC, as general contractor, agreed to complete the Project for a contract price of $165,925,000 with a substantial performance date of November 4, 2014 (the “Contract”).
However, the Project was subject to significant delays and did not achieve substantial performance until June 15, 2017.
[5] In its Statement of Claim issued September 12, 2017, WCC alleges that TTC is responsible for the significant delays as a result of incomplete and uncoordinated design, delay by other contractors for whom TTC is responsible, inordinate changes and improper administration of the Contract.
WCC claims $218,751,335 from TTC for amounts owing, breach of contract, negligence and failure to act in good faith.
WCC alleges that TTC is responsible for 953 days of delay.
TTC has acknowledged responsibility for 411 days.
[6] In its Statement of Defence and Counterclaim dated January 30, 2018, TTC alleges that WCC and its subcontractors are responsible for any delay and deficiencies.
TTC claims liquidated damages of $22,381,666.34 from WCC, the maximum allowed under the Contract.
[7] Numerous actions related to SW have been commenced against WCC by its subcontractors, and in some cases, by WCC’s subcontractors against TTC, arising from the extended duration of the Project including the following by the subcontractors who are parties to these motions:
i.) 6 actions commenced by Interborough Electric Inc. (“IEI”), 1 of the 4 electrical subcontractors engaged by WCC, including 3 lien actions against WCC in which IEI claims $3,611,979.64; and 3 bond actions including 2 naming WCC and TTC;
ii.) an action commenced by Schindler Elevator Corporation (“Schindler”), the escalator subcontractor for all TYSSE stations, claiming damages of $4,535,275.35;
iii.) an action commenced by Limen Structures Ltd. (“Limen Structures”), WCC’s concrete formwork supplier for SW, claiming damages of $18,986,366.69;
iv.) an action commenced by Limen Group Const. Ltd. (“Limen Group”), a masonry subcontractor, claiming damages of $1,565,491.63.
[8] The 9 refusals motions are as follows:
i.) by WCC as against each of TTC, Schindler, Limen Group and Limen Structures;
ii.) by TTC as against each of WCC and IEI;
iii.) by IEI as against each of WCC and TTC
iv.) by Schindler as against WCC.
# III.
The Law and Analysis
## Generally
[9] Rule 31.06 provides that:
(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action….
[10] Rule 29.2.03 sets out the proportionality factors which apply to both oral and documentary discovery:
(1)In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source.
(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.
[11] Relevance, the scope of discovery and proportionality are summarized by Perell J. in [Ontario v. Rothmans Inc., 2011 ONSC 2504](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc2504/2011onsc2504.html) and [Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917](https://www.canlii.org/en/on/onsc/doc/2013/2013onsc917/2013onsc917.html).
Discovery questions must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact.
Overbroad and speculative discovery and “fishing expeditions” are not permitted ( *Rothmans* at paras. 129 and 154-157).
[12] I am also guided by Rule 1.04(1) which provides that the [Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Further, Rule 1.04(1.1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved in the proceeding.
Given the number of action and parties, the volume of documents already produced and available for production, the significant amounts at issue and the complexity of these proceedings, proportionality and Rule 1.04 are primary considerations on these motions.
This engages a sensitive balancing between large documentary requests which consume significant time resources and claims for substantial damages.
[13] I have also taken into consideration that although there have been significant documentary and oral discoveries to date, in proceedings of this magnitude and complexity, significant efforts are still to come.
With respect to documentary productions, the parties have not reviewed all documents that they have been provided nor have they made inquiries or reviewed many of the documents which are sought on these motions.
The fact that there will be re-attendances on examinations for discovery with the option to ask further questions or questions arising, which may also be done in writing, may provide some additional assistance in resolving refusals.
This is particularly helpful in a case such as this where many of the requests are substantial and multi-tiered.
[14] As set out below, many of the disputed questions were resolved by agreement and/or case management during the motion including questions withdrawn and those which responding parties agreed to answer.
Unless otherwise noted, the balance of all refusals on the motions have been resolved or withdrawn.
Consistent with the Direction, I have attempted to keep all timelines as tight as possible, mostly 30 days, except where it is apparent that more significant searches are required.
Notwithstanding specific timelines, the parties should endeavor to complete the required steps as soon as possible, particularly given the number of multiple and interim steps involved in many of my directions.
Similarly, the parties should be flexible where greater efforts and larger searches are required.
## WCC Motion Re: TTC
[15] Initially, there were approximately 200 disputed refusals on WCC’s motion as against TTC.
As a result of agreements between the parties, case management and questions withdrawn by WCC, approximately 75 questions remain in dispute.
[16] Group 1: TTC Personnel - This grouping relates to agreements between TTC and various consultants with respect to the construction of the TYSSE.
Three refusals remain in dispute in which WCC seeks copies of agreements between TTC and Morrison Hershfield (Refusal #1); the company that engaged Richard Nusink (Refusal #2); and SpadinaLink (Refusal #7).
[17] A recurring theme throughout WCC’s motion as against TTC is the relevance of documents and information with respect to the TYSSE as a whole versus those related only to SW.
In many cases, WCC submits that, because SW is part of the TYSSE, it is entitled to documentation relevant to the TYSSE as a whole and/or some or all of the 5 stations other than SW.
In response, TTC frequently takes the blanket position that WCC is only entitled to information and productions regarding SW and that documents related to the TYSSE as a whole and the other 5 stations are not relevant to WCC’s claims.
[18] As is often the case, both WCC and TTC are taking overly broad positions which do not fully consider the pleadings, the circumstances of these proceedings and the nature of the documents requested.
In my view, a deeper look is required to determine what documents are relevant and proportionate depending on the nature of the request.
[19] Each question and request must be considered on its own merits.
As set out below, because SW is one of 6 stations which comprise the TYSSE, there are circumstances where SW is entitled to production of documents which relate to the entire TYSSE and/or other stations.
For example, documents regarding scheduling or funding related to the TYSSE which directly affect scheduling, funding and related issues at all 6 stations would most likely be relevant.
This is in contrast to documents related to the TYSSE overall which have no demonstrable connection to SW because they have no direct impact on SW and/or relate only to other stations.
[20] With respect to Refusals #1, #2 and #7, the parties have agreed that TTC will make best efforts to locate any relevant, non-privileged documents with respect to SW and produce them.
Once best efforts have been made and any documents produced, WCC will then decide if it wishes to pursue any documents regarding TYSSE.
I am satisfied that this is a reasonable and proportionate resolution.
TTC shall do so within 30 days.
[21] Group 2: Executive Task Force and Independent Engineer – The 3 refusals which remain in dispute are WCC’s requests for: the Request For Proposal sent to the independent engineer for the TYSSE as referenced in the TTC Board Report dated May 11, 2011 (the “TTC Board Report”) (Refusal #18); the TTC policies, procedures, standards and practices in place at the time the Contract was awarded as referenced in the TTC Board Report (Refusal #21); and the authorization by the Joint Executive Task Force (“ETF”) which oversaw the TYSSE to increase the upset limit of Contract A85-75A as set out in the TTC Board Report dated June 24, 2013 (Refusal #22).
[22] With respect to Refusal #18, TTC has agreed to make reasonable inquiries and produce relevant documents regarding the independent engineer with respect to SW only.
I am satisfied that this is a complete response to this question.
In my view, it is not apparent that this Request For Proposal is relevant unless a review of the documents reveals some specific connection to SW.
TTC shall do so within 30 days.
[23] With respect to Refusal #21, I am satisfied that TTC policies, standards and practices in place at the time the Contract was awarded are relevant and producible subject to appropriate narrowing and qualifications.
TTC is not required to produce all policies, standards and practices, but rather only those which are relevant to WCC’s claims in these proceedings including its work under the Contract which gave rise to its claims.
TTC shall make reasonable inquiries and produce relevant documents within 30 days
[24] During the motion, TTC advised that it agrees to produce the document(s) with respect to Refusal #22 regarding the ETF’s budget increase authorization, which it shall do within 30 days.
[25] Group 3: Budget and Funding – There are 9 refusals which remain in dispute in this group with respect to costs estimates, forecasts and funding related to the entire TYSSE (Refusals #30-#38).
All of the questions in this group have now been resolved by agreement.
Although TTC submits that the delays in completing the TYSSE were not affected by its ability to obtain funding, even accepting this as true, this is not the end of the analysis.
The necessity for additional funding with respect to the TYSSE is not only relevant to work delays, but delays in payment and the necessity to obtain financing, which is pleaded by WCC.
TTC has agreed to answer Refusals #30-#35 and #36-#38 for RFQs on WCC’s Scott Schedule.
[26] Group 4: Design – There are 8 refusals which remain at issue with respect to WCC’s allegations that the designs and Contract documents provided by TTC and its design consultant consortium, The Spadina Group Associates (“SGA”), were incomplete, inaccurate, uncoordinated and contradictory.
SGA was comprised of Lea Consulting Ltd., IBI Group Architects (Canada) Inc. and WSP Canada Inc. (collectively, the “Designers”).
Specifically, WCC alleges that during the course of the Project, more than 3,100 revisions were made to the original 1,690 drawings necessitating 2700 Requests For Information (“RFIs”) by WCC and its subcontractors which led to the issuance of almost 900 further changes.
TTC has brought separate Third Party Claims against each of the Designers.
[27] TTC refuses to advise if design issues related to the mechanical and electrical systems were common to both SW and the Finch West Station (“FW”), another station on the TYSSE (Refusal #39) and if errors and omissions regarding the fire alarm system at SW were also errors and omissions at FW (Refusal #41).
TTC also refuses to advise whether the Scope of Services section in the contract between TTC and SGA was included in the design contracts for each TYSSE station (Refusal #42).
TTC further refuses to advise if there was a claim for water egress on FW, if the design specifications for waterproofing were the same on FW and SW, if the claims for water infiltration on FW are similar to those made by WCC on SW, if TTC made inquiries of SGA for water leaking on FW and if the water proofing specifications in certain paragraphs of the Contract were the same on FW (Refusals #53-#57).
[28] WCC alleges that there were significant design issues with the mechanical, electrical and fire alarm systems and waterproofing for SW.
The Designers designed both SW and FW.
There is correspondence on the record which demonstrates that there were similar design and deficiency issues at both SW and FW with respect to the fire alarm system, mechanical issues, platform doors and water proofing.
Specifically, TTC representatives raised concerns in correspondence regarding the use of Mel-Rol Precon waterproofing specifications for both SW and FW, both of which experienced trainway leaking, while other stations, which used alternative products, had achieved “acceptable results”.
[29] I reject TTC’s submissions that the documents and information requested by WCC are irrelevant on the basis that they relate to FW and not SW.
Although WCC’s claims arise from SW, there is some evidence on the record of common design issues at SW and FW.
Given the same issues, on the same larger project, the TYSSE, and the same Designers, I am satisfied that the documents and information sought by WCC are probative of matters at issue in its claims against TTC.
Specifically, these commonalities go to the truth of WCC’s design claims.
TTC shall answer Refusals #39, #41 and #53-#57 within 45 days.
With respect to Refusal #42, given that the comparison advanced by WCC is limited to FW, TTC need only advise if the Scope of Services section in the contract between TTC and SGA was the same for SW and FW, within 30 days.
[30] Group 5: Project Documentation – All questions in this group have been resolved except for 6 questions, most of which also have substantial agreement and/or only require clarification.
[31] TTC has agreed to provide its position with respect to the quantum of WCC’s Notices of Intention to Claim (“NOIC”) a minimum 180 days before trial (Refusal #60).
TTC will also identify each Change Directive Summary and substantiate each RFQ/CD on SW and will produce relevant supporting documentation and analysis regarding the quantum of all unilateral Contract changes on the same terms (Refusals #62-#63).
[32] With respect to Refusal #70, WCC seeks the “risk workshops” and at Refusal #78, agendas for all Monthly Progress Summary Meetings.
WCC submits that these questions are relevant to its claims regarding delays caused by TTC’s subcontractor, OHL-FCL Limited Partnership (“OHL”) which was responsible for the construction of the subway tunnel which runs through SW.
WCC alleges that it was delayed in the extraction shaft at the northern end and the launch shaft at the southern end as a result of OHL’s late turnover.
TTC has agreed to make best efforts and inquiries to locate any of the documents requested with respect to OHL up to the date of the turnover.
I am satisfied that this is reasonable and proportionate and TTC shall do so within 45 days.
[33] With respect to Refusal #76, in a letter dated June 16, 2015, TTC stated that it would review suggestions made by WCC and other contractors and would be open to changes to the TYSSE.
WCC requests if TTC asked contractors on other TYSSE stations for suggestions and to produce copies of the suggestions received.
While I agree with TTC that suggestions by contractors on other stations are not relevant and it would be disproportionate to produce them, I conclude that it is relevant and proportionate for TTC to answer whether or not they asked, and TTC shall do so within 30 days.
[34] Group 6: OHL – TTC acknowledges that delays in OHL’s work delayed the handover to WCC.
TTC also acknowledges the relevance of the remaining 9 disputed questions but submits that narrowing and qualifications are required.
I agree.
[35] TTC has agreed to produce OHL’s recovery schedule referenced in the TYSSE Schedule Recovery Chart dated June 1, 2013 (Refusal #81) and to advise if TTC deducted liquidated damages from OHL for failing to complete the extraction and launch shafts on time (Refusal #85).
TTC shall do so within 30 days.
[36] With respect to Refusal #87, TTC has agreed to answer a narrowed, and in my view, a properly specified question, namely, to advise what delay issues TTC was experiencing with OHL as at February 2012 with respect to the launch shaft.
TTC shall advise within 30 days.
[37] TTC has also agreed to make reasonable inquiries and produce any handwritten minutes or emails recording minutes of meetings between TTC/TYSSE and OHL staff regarding the turnover of the launch shaft (Refusals #89-#90).
TTC has further agreed to make reasonable inquiries and best efforts and produce the notes and records of David Urwin from the commencement of the OHL Contract until the turnover of the launch shaft (Refusal #91) and all Risk Registers created during the period when the launch shaft was being turned over (Refusal #94).
TTC shall do so within 60 days.
[38] Finally, TTC has agreed to produce daily progress reports with respect to the OHL Contract from the commencement of the OHL Contract until the turnover, but specifically limited to delay issues only (Refusal #92).
I agree that this is a properly narrowed, proportionate response.
TTC shall produce these reports within 60 days.
[39] Group 7: Bechtel Canada Co. (“Bechtel”) – In December 2014, given the significant delays, Bechtel was retained by TTC to conduct an in-depth asessment of the TYSSE.
On February 5, 2015, Bechtel delivered the Spadina Subway Extension Project Assessment Report (the “Bechtel Report”).
On March 26, 2015, TTC issued a Staff Action Report which recommended a comprehensive “re-set” of the TYSSE.
In April 2015, TTC engaged Bechtel as an independent third party project manager to carry out the “re-set” and deliver the TYSSE to completion by December 31, 2017.
There remain 13 refusals with respect to issues related to Bechtel including the Bechtel Report.
[40] Refusal #121, WCC’s request for an unredacted copy of the Bechtel Report, affects 13 other refusals.
To date, WCC has only obtained a heavily redacted copy of the Bechtel Report through a freedom of information request.
Counsel for TTC advised on the first day of the motion that they had not seen an unredacted version and did not know if TTC had one but would make inquiries to determine if they had a copy.
On the second day of the motion, TTC advised that it had located an unredacted version but had not had an opportunity to review it to determine if it was prepared to produce a unredacted copy or one with fewer redactions.
In my view, it is reasonable and proportionate that TTC advise within 30 days if it will produce an unredacted version and produce one and/or produce a version with less redactions.
Accordingly, given the possibility that TTC may produce an unredacted version of the Bechtel Report or a version with less redactions which is acceptable to WCC, in the interim Refusals #103, #105-#109, #112-#113, #123, #126, #135-#136 and #141 shall be adjourned until it is determined if these questions are answered by the production of any version of the Bechtel Report or discussions between the parties.
[41] With respect to Refusal #114, WCC asks who from TTC was involved in discussions related to the RFIs referenced in Section 3.1 of the Bechtel Report.
This section refers to the large number of RFIs associated with the designs and that “most participants in the process acknowledge that the designs stamped as IFC were far short of 100%”.
I disagree with TTC that this and other questions regarding the Bechtel Report, are irrelevant because the Bechtel Report addressed the TYSSE as a whole and that assessments and opinions of Bechtel are not relevant to WCC’s alleged entitlement to damages.
While the Bechtel Report relates to the entire TYSSE, Bechtel’s assessments and analysis necessarily included SW as 1 of the 6 stations including on design issues raised in this question.
On a fundamental level, RFIs with respect to SW would have been included in the 8,400 RFIs referenced in the Bechtel Report.
Further, I also disagree that Bechtel’s assessments regarding the TYSSE and the Project are not relevant to WCC’s claims.
Prior to its engagement as an independent third party project manager, Bechtel consulted widely including among TTC staff regarding the status of the already significantly delayed TYSSE in late 2014 and early 2015.
In my view, the information Bechtel obtained and its assessments are probative of the design issues on SW and are likely probative of other claims made by WCC (which must be considered on a case by case basis).
TTC has agreed to advise if it agrees that designs stamped as IFC were far short of 100%, and additionally, I am of the view that TTC should also advise which TTC employees may have relevant information with respect to this answer, within 30 days.
[42] The Bechtel Report refers to TTC’s audits of internal processes of ASTS, a contractor retained by TTC to deal with signaling.
WCC requests TTC’s audits of ASTS’ internal processes dating back to 2009 as referenced in the Bechtel Report (Refusals #115-#116).
TTC has agreed to make inquiries and produce TTC’s audits of ASTS but only back to July 2013.
I am satisfied that this is reasonable and proportionate and TTC shall do so within 30 days.
[43] With respect to Refusal #117, TTC has agreed to confirm if the review by the American Public Transportation System referred to at page 3-7 of the Bechtel Report is the same one included at Tab 9 of WCC’s Supplementary Document Brief.
TTC shall do within 15 days.
[44] For Refusal #118, WCC seeks any notes from a mid-2014 workshop referenced in Section 2.1 of the Bechtel Report which confirmed that the Fall 2016 “revenue service date” was not achievable.
TTC has agreed to make reasonable inquiries to determine what documents are available (excluding notes) and advise WCC, which I am satisfied is reasonable and proportionate and shall be done within 30 days.
[45] Refusals #119, #127 and #147 all relate to WCC’s request for the Project Master Schedule and/or the Fully Integrated Master Schedule (the “Master Schedule”), and all updates.
TTC refuses to produce the Master Schedule on the basis that it relates to the entire TYSSE and is not relevant to WCC’s claims with respect to SW.
Similar to my conclusions above, this is another example of a request by WCC for documentation related to the TYSSE overall which is relevant to SW and WCC’s claims.
The Master Schedule includes milestones and timelines for the entire TYSSE, including SW, before and after the “re-set”.
The Bechtel Report refers to “SW as being on the critical path”.
Further, the Master Schedule is probative of delay specific to SW and at the overall TYSSE level which could have impacted all 6 stations including SW.
Accordingly, I conclude that TTC shall produce the Master Schedule, however, it is not required to produce all updates (which WCC has advised it neither needs nor wants).
TTC shall produce the Master Schedule and advise of the number of updates within 30 days.
TTC shall do the same with respect to the “three month rolling schedules” referenced at page 2-9 of the Bechtel Report (Refusal #128) and Bechtel’s Critical Path Schedule (Refusal #140).
With respect to the Master Schedule and all schedules, WCC and TTC shall continue to work together to ensure the most reasonable and proportionate production of schedules and updates.
[46] WCC also seeks production of the analysis undertaken to arrive at the $263.3 million budget figure in Table 5.1 of the Bechtel Report (Refusal #132) and whether the budgets for the TYSSE in Section 5 of the Bechtel Report covered the potential exposure for costs claims on SW (Refusal #133).
While, for the same reasons set out above, I conclude that the budgets in question are relevant to WCC’s claims and SW, TTC has agreed to first determine if breakdowns for SW are available and I am satisfied that this is a proportionate first step which TTC shall do within 30 days.
With respect to the quantum of the “budget re-baseline” referred to in section 6.5 of the Bechtel Report (Refusal #137), TTC has agreed to confirm whether this is the same number as from the Contract Summit Meeting and shall do so within 30 days.
[47] Similarly, TTC has agreed to make reasonable inquiries to determine what documents are available with respect to the “reset reports” created by the TTC Delivery Team referenced in Section 7.1.2(i) of the Bechtel Report (Refusal #143) and the Bechtel Spadina Project Executive Summary referenced in Section 7.1.2 (ii) of the Placement of Personnel Agreement between TTC and Bechtel dated April 10, 2015 (the “Bechtel Agreement”), the operative agreement between TTC and Bechtel (Refusal #144).
TTC shall advise what its best efforts are able to locate and shall produce any “reset reports” specific to or with references to SW or which affect all 6 stations and the Executive Summary, all within 30 days.
TTC has also agreed to make best efforts to locate the “Project Final Cost Forecasts” (Refusal #149) and the budget-cost variance analysis referenced at page 19 of the Bechtel Agreement (Refusal #150) and produce any documents specific to SW or those which affect all 6 stations, which they shall do within 30 days.
[48] TTC also refuses to advise whether Bechtel met all of the Milestones listed at page 22 of the Bechtel Agreement including Milestone 9 (whether the TYSSE came in under the re-baselined budget)(Refusals #153-#154).
Similar to my conclusions above, I am satisfied that whether or not Bechtel met the Milestones set out in the Bechtel Agreement is probative of timing and delays with respect to the overall TYSSE which, in turn are probative of delays impacting WCC and SW.
TTC shall advise within 30 days.
[49] Refusals #159-#161 are addressed in Group #9 below.
[50] Finally, TTC has agreed to make best efforts to locate and produce Bechtel’s agreement with its sub-consultant, Navigant (not all of Bechtel’s sub-consultant agreements as initially requested by WCC which I am not satisfied are relevant or proportionate).
TTC shall do so within 30 days.
[51] Group 8: Schindler – Schindler was the sole source escalator provider for all 6 TYSSE stations.
As set out above, Schindler has commenced an action and WCC has counterclaimed against Schindler and crossclaimed against TTC.
Schindler and TTC entered into an Indemnity Agreement dated April 1, 2015 (the “Indemnity Agreement”) pursuant to which TTC directed Schindler to reallocate resources from the TYSSE, including SW, to Union Station in order to complete improvements to Union Station in advance of the Pan-Am Games.
[52] The only refusal at issue is WCC’s request that TTC advise if Schindler has provided notice of a claim under the Indemnity Agreement (Refusal #168).
I reject TTC’s argument that the Indemnity Agreement is irrelevant because WCC’s entitlement to damages is not related to the Indemnity Agreement.
In my view, the issue is not whether WCC’s entitlement to damages turns on the Indemnity Agreement, but rather, whether the Indemnity Agreement is relevant to any matters at issue in the litigation including whether it may apply to any claims made by WCC against Schindler with respect to the reallocation of resources.
Similar to the availability of insurance, it may also may facilitate settlement discussions.
Accordingly, TTC shall advise if Schindler has delivered notice under the Indemnity Agreement within 30 days.
[53] Group 9: TTC’s Schedule and Critical Path Analysis and Review of WCC Contractual Claims – There are 9 disputed refusals with respect to TTC’s analysis of the schedule delivered by WCC to TTC following the execution of the Contract which included critical task activities that could impact WCC’s ability to achieve Substantial Performance (the “Contract Schedule”).
[54] TTC initially refused to advise whether it prepared a time impact analysis for SW (Refusal #170) on the basis that it would be subject to litigation privilege.
TTC has now agreed to make reasonable inquiries and produce contemporaneous, ordinary course documents prepared outside of any time frame which could be covered by litigation privilege claims regarding Refusal #170 and additionally has agreed to make best efforts to locate the scheduling file of Kim Boon (Refusal #182) and advise what documents are available.
In my view, this approach is consistent with the case law, reasonable and proportionate.
TTC shall respond within 30 days.
[55] Similarly, after initially asserting that the documents were the subject of expert evidence, TTC has agreed to make best efforts and produce contemporaneous, ordinary course documents regarding whether it has done a critical path analysis (Refusal #199); to advise if the critical path analysis was used by TTC to calculate 307 calendar days in CD 30 (Refusal #201); to produce TTC’s critical path analysis for SW for 2013-2017 to the extent it is different from the analysis set out in SW’s Red Book and Blue Book claims (as set out below)(Refusal #202); to advise what critical path TTC is referencing at paragraphs 87 and 101 of its Statement of Defence (Refusals #203 and #206); to advise if TTC has done a critical path analysis for the fire alarm system at SW and what it says the critical path for the fire alarm system was, all as set out at paragraph 97 of the Statement of Defence and what it says the critical path for SW was in 2017 (Refusals #204-#205 and #207).
I am satisfied that this is reasonable and proportionate and TTC shall advise within 30 days.
[56] There are an additional 10 refusals in Group 9 (Refusals #185-#186, #188-#189, #191-#194), in addition to Refusals #159-#161 from Group 7, arising from TTC’s claims of litigation privilege over its review of WCC’s claims under the process pursuant to the Contract (the “Claims Process”).
In some cases, TTC also takes the position that WCC’s requests are not relevant.
In these refusals, WCC seeks, among other things, documents related to TTC’s review of WCC’s claims under the Claims Process (the “Contract Claims”) and the names of TTC employees who reviewed them.
[57] General Condition 31 of the Contract sets out the process by which WCC could advance the Contract Claims.
Pursuant to General Condition 31.5 of the Contract, if WCC did not submit the Contract Claims, it would give up its right to do so.
On August 14, 2014, pursuant to General Condition 31.4, WCC submitted its “Claim for Adjustment of Contract Price and Extension of Time” (the “Red Book”) for all claims related to SW up to and including December 31, 2013.
In the Red Book, WCC sought an increase in the Contract Price of $136,959,126.34 and an extension of 694 days.
On September 19, 2017, four days after commencing this action against TTC, WCC delivered an updated claim entitled “Claim #2 For Adjustment of Contract Price and Extension of Time” for all claims up to an including December 31, 2016 (the “Blue Book”, collectively with the Red Book, the “Books”).
Pursuant to General Condition 31.7, TTC was required to respond to the Books within 60 days.
[58] WCC submits that TTC has not responded to the Books let alone provided responses which are compliant with its obligations under the Contract.
TTC disputes this assertion.
In any event, WCC submits that because TTC has not responded to the Books it has not received any documents relevant to the Contract Claims.
TTC claims litigation privilege over all documents sought by WCC with respect to TTC’s review of the Books.
TTC submits that since IEI commenced an action against TTC on February 25, 2013 and WCC crossclaimed against TTC on May 6, 2013, and WCC crossclaimed in IEI’s main action on August 15, 2014, all documents with respect to the Books are subject to litigation privilege.
In short, as WCC had already commenced litigation against TTC before it delivered the Red Book, all documentation with respect to the Books was generated for the dominant purpose of litigation when there was a reasonable prospect of litigation and therefore, is protected by litigation privilege.
[59] In [McNally International Inc. v. Toronto Transit Commission, [2005] O.J. No. 1011](https://www.canlii.org/en/on/onsc/doc/2005/2005canlii7090/2005canlii7090.html), Master Dash considered litigation privilege in circumstances similar to the present case, including a contractual claims process and a Dispute Review Board (“DRB”) involving TTC:
“5. 4.
None of the items in the group were refused on the basis of relevance.
It is therefore first necessary to determine when litigation was reasonably contemplated, and secondly whether communication was made or documents were created for the dominant purpose of assisting the Defendant in defence of that litigation, as opposed for example for the purpose of investigating and assessing the Plaintiff's claim for extras.
With respect to the first question it is not necessary that litigation be certain, or even probable, but rather whether there was a reasonable prospect of litigation.
This must be more than a mere suspicion or speculative possibility.
6 In my view there could be no reality to the reasonable prospect of litigation on March 30, 1998 when the Plaintiff advised it would be making a claim for excess costs or even March 23, 1999 when the Plaintiff's formal detailed and documented claim was made.
Actions taken from then until May 20, 1999 when the claim was denied in my view were for the dominant purpose of investigating the claim for extras and determining whether to accept it, although possibly with a secondary purpose of considering that a claim, if denied, may have to be defended.
Claims for extras are a regular part of most construction projects and it could not be said that each time a claim is presented there is a reasonable prospect of litigation.
7 In my view the reasonable prospect of litigation arose some time between May 25, 1999 when the Plaintiff advised that they did not accept the Defendant's Engineer's rejection of their claim and "consider[ed] this matter in dispute" and requested the referral to the Dispute Review Board (DRB) as allowed under the contract, and February 1, 2001 when the Plaintiff rejected the DRB's non-binding recommendations.
I do not accept that the reasonable prospect of litigation arose only on the date of service of the Statement of Claim, May 2, 2003.
I note that the Defendant first consulted outside counsel on July 28, 1999, during the "informal" DRB hearing and more than a year before the formal DRB hearing on September 12 and 13, 2000.
Although in answers to undertakings the Defendant claims counsel was retained regarding the matters disputed in this litigation, I do not find this particularly helpful in determining the role of counsel and in fact begs the question whether litigation privilege arose before or after the DRB hearing, since as in [Contos v. Kingsway, [2001] O.J. No. 1327 (Ont.
Sup.
Ct.)](https://www.canlii.org/en/on/onsc/doc/2001/2001canlii62787/2001canlii62787.html), it is uncertain whether counsel was retained to assist with the mediation type process or with anticipated litigation.
8 The burden of establishing litigation privilege is on the party asserting it.
Plaintiff's counsel relies on Contos v. Kingsway to assert that in the absence of convincing evidence as to when the Defendant reasonably contemplated litigation and for which dominant purpose actions were taken and documents produced, I should conclude that the appropriate date is the date of actual litigation.
While clearly an affidavit from the TTC would have been preferable, I am left with the evidence before me, including correspondence and DRB documentation, various other documentation and the pleadings.
9 In my view there was a reasonable prospect of litigation on May 25, 1999 when the dispute as to the Engineer's decision was made and the DRB hearing requested.
There is a divergence of jurisprudence on whether commencement of a mandatory mediation process, such as to FSCO for accident benefits, provides a date for the reasonable prospect of litigation and clearly it is dependent on the facts or circumstances of the case.
In any event the DRB hearing is quite different from the FSCO mediation.
It appears both parties treated the DRB hearing seriously and presented documentary evidence and argument over two days.
The DRB provisions of the Contract provide a right to be heard and present evidence and there are detailed provisions for the conduct of the hearing.
At the conclusion the Board makes non-binding Recommendations to help resolve the dispute.
10 I note that the claim advanced by the Plaintiff before the DRB is virtually identical to the Claim advanced in this litigation.
The types of strategies and decisions in preparation for and at the DRB are akin to a form of litigation.
It would be most unfair if the Plaintiff could access the Defendant's notes and documentation made in preparation for the DRB hearing, which essentially deals with the same claims as advanced in this action, under the guise of preceding the reasonable contemplation of litigation.
In my view, even though there was no certainty litigation would follow an unfavourable Board recommendation, there was a reasonable prospect of litigation from the time the DRB hearing was requested.
11 Therefore all documents requested and questions asked dealing with events prior to May 25, 1999 will be produced.
Documents from after that date need not be produced if they were made for the dominant purpose of defending the claims advanced herein (including at the DRB).
Since I do not have the detailed Schedule B or the documents themselves, no decisions can be made on individual post May 25, 1999 documents.
If, after a detailed Schedule B is provided, issues remain whether any specifics document was created for the dominant purpose of litigation, this can be addressed at a future motion.”
[60] One important distinction between *McNally* and the present case is that, unlike *McNally*, litigation was commenced by WCC against TTC before the Books were delivered under the Claims Process.
This is further complicated by the fact that it was, at least initially, litigation commenced by one of WCC’s subcontractors, IEI, and WCC’s crossclaim, followed by the claims of other subcontractors.
This raises the prospect of multiple dates for the purposes of this analysis.
However, the date on which there was a reasonable prospect of litigation is not, on its own determinative of TTC’s assertion of litigation privilege.
[61] As set out in *McNally*, as the party asserting litigation privilege, TTC bears the evidentiary burden of not only establishing that there was a reasonable prospect of litigation as of a particular date but that the documents sought were created for the dominant purpose of litigation.
Therefore, it must be determined whether the documents sought by WCC were generated for the dominant purpose of reviewing the Books and determining whether to accept it as part of the Claims Process or for defending and/or advancing claims in this litigation.
It must also be determined whether review for the purpose of litigation was a secondary purpose if the Contract Claims were rejected and litigation was likely to follow.
As stated in *McNally*, contractual claims are a regular part of most construction projects and where one exists, there is not a reasonable prospect of litigation each time a claim is filed.
In fact, as the Contract states at section 21.3, the explicit purpose of the contractually mandated DRB is to avoid litigation.
[62] The main difficulty in applying the relevant factors and conducting the necessary analysis in the present case is that WCC commenced litigation in the IEI Action before the Red Book was delivered, meaning that TTC was reviewing the Red Book at the same time as it was defending litigation commenced by and related to WCC.
The Contract Claims are also substantially similar to those in these proceedings, which is similar to the DRB documents in *McNally*.
Further, TTC has not yet made the necessary inquiries or identified or reviewed any of the documents sought by WCC.
It is likely the case that different conclusions apply to different documents depending on the nature and timing of claims made by WCC and its subcontractors, the timing of TTC’s review of the Books and other factors.
It is helpful that WCC accepts that since the Blue Book was delivered after it commenced litigation against TTC, documents generated by TTC in its review of the Blue Book are subject to litigation privilege.
However, given that the Blue Book was delivered in September 2017, this only addresses a small portion of the documents in question.
Given the complexity of the circumstances, in my view, TTC’s privilege claims can only be reviewed on a document by document basis and more efforts are required by the parties, particularly TTC.
[63] Accordingly, having considered the relevant factors and circumstances, I am unable to, on the record before me, determine when litigation was reasonably contemplated and whether the documents sought by WCC were created for the dominant purpose of litigation.
In my view, a reasonable, proportionate and cost effective interim, first step is for TTC to, within 60 days, review all documents which are relevant to the refusals at issue regarding their privilege claims and produce a Supplementary Affidavit of Documents setting out the relevant documents at Schedules “A”, “B” and “C”, as applicable in compliance with the Rules.
WCC shall review the Supplementary Affidavit of Documents and the parties shall have further discussions with respect to what documents will be produced by agreement and what documents are in dispute.
The parties may then seek further directions from the Court, whether by further motion or case management.
[64] Group 10: Liquidated Damages – There are approximately 9 outstanding refusals with respect to TTC’s counterclaim against WCC.
[65] With respect to Refusal #212, TTC has agreed to produce any contemporaneous or ordinary course of business documents regarding the impact which those RFQ/CDs on WCC’s Scott Schedule had on the milestone and completion dates or upon which WCC otherwise relies, all with respect to paragraph 27 of its Statement of Defence.
TTC shall do so within 30 days.
[66] Refusals #213 and #224-#225 all relate to requests with respect to the Master Schedule.
In my view, the production of the Master Schedule ordered above in Group 7 is fully responsive to these refusals.
Similarly, WCC’s requests regarding a discussion about a May 2016 revenue service date (Refusal #220) and the July 2015 Master Schedule (Refusal #221), shall, to the extent not answered by the productions in Group 7, also be provided within 30 days.
[67] With respect to Refusal #231, WCC requests the analysis of all delays by all contractors at all TYSSE stations.
In my view, this request is overbroad, disproportionate and not probative of issues relevant to WCC’s claims with respect to SW.
I also conclude that information that is probative to this request is already being provided, namely through the production of the Master Schedule and other productions regarding overall delay.
With respect to Refusals #232-#233, TTC submitted that if I ordered the Master Schedule to be produced, that it would answer these questions.
To the extent to which it does not, TTC shall answer the necessary clarifying questions.
## TTC Motion Re: WCC
[68] TTC was initially moving on approximately 200 refusals as against WCC.
As set out below, approximately 59 questions remain at issue.
The balance have been resolved by agreement including TTC withdrawing questions.
[69] Group 1: Pleadings Confirmation – There are 10 questions which remain in dispute with respect to WCC’s pleadings.
Substantially all of the confirmations sought were provided by WCC during submissions.
[70] WCC has agreed to confirm no later than 180 days before trial what documents it will be relying on in support of its position that there were errors and omissions in the Contract documents in addition to those already identified (Refusal #1).
Similarly, WCC confirms that it will confirm any additional documents it is relying on minimum 180 days before trial in addition to the following refusals: WCC relies on the RFIs with respect to its assertion that the Contract documents were incomplete, inaccurate, uncoordinated and/or contradictory as set out in its Statement of Claim (Refusal #2); WCC has provided its drawing log to TTC (Refusal #3); TTC can ask any additional or clarification questions regarding what IFC drawings were not coordinated on re-examination (Refusal #4); WCC has no further examples of drawings where the Designers did not incorporate the as-built conditions at this time (Refusal #5); WCC has nothing further than the Delay Impact Analysis set out in the Books at this time (Refusal #6); WCC has no further examples of TTC’s failure to properly incorporate previous revisions (Refusal #7) or failed to highlight what change had been made (Refusal #8) as set out at paragraph 33 of its Statement of Claim at this time; and there is nothing further with respect to documents related to how changes delayed and disrupted WCC as alleged at paragraph 118 of its Statement of Claim other than what is included in the Books although WCC agrees to make inquiries and determine what additional documents may exist (Refusal #12).
[71] With respect to Refusal #9, TTC requests logs and records regarding WCC’s increased Contract price claim at paragraph 14 of WCC’s Statement of Claim, however, it has already agreed to provide an undertaking to provide a breakdown and WCC has now further agreed to produce specific logs and records requested by TTC after it reviews the breakdown (Refusal #9).
In my view, this is a reasonable and proportionate resolution in the circumstances.
[72] Group 2: Schedule and Delay Analysis – There are 6 disputed refusals at issue in this group.
Another recurring theme in this and other groups is WCC’s frequent assertion that all relevant documents with respect to many questions are already included in the Books.
TTC submits that this is insufficient and does not constitute proper discovery in accordance with the Rules and the case law.
Specifically, TTC highlights that the Claims Process did not require WCC to produce all documents relevant to its claims, therefore, it only included documents in the Books which are favourable or supportive of its claims, rather than the proper scope of discovery under the Rules which requires all relevant documents to be produced, subject to proportionality.
I agree with TTC that, in numerous cases, WCC’s blanket assertion that TTC should simply review the Books for the relevant documents in question is insufficient and not consistent with the proper scope of discovery.
The fact that the Red Book and the Blue Book contain 6 and 19 volumes of documents, respectively, is not a sufficient response.
In many instances, at the very least, WCC should make additional inquiries and best efforts to determine what other relevant documents may exist.
As always, this is appropriately addressed on a question by question basis.
At the same time, this must be balanced against what, in numerous cases, are overbroad and disproportionate requests by TTC for all documents where it is not clear that all are required and more narrow requests are appropriate.
[73] TTC’s seeks all documents and correspondence which WCC exchanged with its scheduling consultant, Milestone, which assisted WCC in the preparation of the Red Book (Refusal #10); to advise if there were drafts of the Red Book and to produce them (Refusals #14 and #15); to produce the 12 documents related to the work conducted by Pearson, WCC’s scheduling consultant, in the summer of 2014 (Refusal #16); and to produce “what-if” (contingency) schedules prepared by WCC (Refusal #18).
[74] In my view, the request for all documents with respect to Milestone in Refusal #10 is overbroad and requires narrowing.
As WCC has agreed to do with respect to other questions, WCC shall make reasonable inquiries and advise what relevant documents are available within 30 days and advise TTC so that TTC can consider a more specific, proportionate request.
[75] With respect to Refusals #14 and #15, I am not satisfied that there is any probative value to the drafts of the Red Book.
What is relevant is the final version of the Red Book that was delivered with 6 volumes of supporting documents.
In any event, correspondence and other documentation regarding the preparation of the Red Book will likely be produced in response to Refusal #10.
[76] With respect to Refusal #16, WCC submits that the documents requested are not relevant because WCC has already advised that Pearson did not analyze the schedule.
There appears to be some disconnect between the parties given that TTC is seeking 12 documents related to work conducted by Pearson.
In order to move this refusal towards a resolution, TTC shall identify the 12 documents and WCC shall make reasonable inquiries and advise if the documents are available and WCC’s position within 30 days.
Similarly, with respect to Refusal #18, WCC has agreed to make reasonable inquiries and determine what “what-if” schedules and documents exist for what periods and advise TTC so that TTC can consider a more specific, targeted request.
WCC shall do so within 30 days.
[77] Group 3: Financial Information – All 3 remaining refusals in this group were resolved during the motion.
WCC has agreed to produce all relevant financial information and documentation in support of its claims (Refusals #21-#22) and, as offered by WCC, TTC shall identify the specific types of reports generated by Neena Sagray with respect to SW and WCC will make reasonable inquiries and produce the relevant reports (Refusals #23).
These steps shall be completed within 45 days.
[78] Group 4: Subcontractors – Payment – There are 10 refusals with respect to claims being made by WCC’s subcontractors against WCC for non-payment which WCC has advanced, “flowed through” or “carried” against TTC by crossclaim.
In response to WCC’s allegations that the delays with respect to SW were caused by design and coordination issues attributable to TTC and its subcontractors, TTC alleges that any additional costs incurred by WCC were incurred as a result the failure of WCC and its subcontractors to properly complete and coordinate work in accordance with the Contract.
TTC also alleges that, in some circumstances, TTC has paid to WCC amounts owing to WCC’s subcontractors, however, WCC has not paid its subcontractors.
[79] TTC seeks information with respect to who at WCC was processing payments to its subcontractors (Refusal #26) and the process for reviewing requests for payment by WCC’s subcontractors (Refusals #27-#28).
WCC advises that it has resolved claims with all of its subcontractors except those involved in these motions.
In my view, given TTC’s allegations, documents related to the process with respect to subcontractors with whom WCC has not settled are probative and shall be produced within 30 days.
[80] Further, WCC has agreed to make best efforts to determine the authors’ understanding of an email message dated May 13, 2015 with respect to New Alliance Ltd. (“New Alliance”) (Refusal #31); confirms that it does not dispute the contents of the email from IEI dated March 17, 2014 regarding the downsizing of its crew (though the reasons behind the downsizing are a question for IEI, not WCC)(Refusal #34); and will advise if it disputes the email chain between WCC and Gemstar Canada Inc. (“Gemstar”), the terrazzo supplier within 30 days (Refusal #35).
[81] With respect to Refusals #32 and #39, I am satisfied that the amount of holdback paid by WCC to its subcontractors and the length of time it was held are probative of issues raised by TTC with respect to amounts paid by WCC to its subcontractors.
WCC asserts that these refusals should be answered by Statements of Account to be produced by WCC.
To the extent to which they do not, WCC shall provide this information by way of follow-up questions.
[82] Group 5: Subcontractors – Delays and Deficiencies - WCC submits that it has provided all documentation regarding delay to TTC which its subcontractors have provided.
WCC also asserts again that significant documentation has been provided in the Books.
While I am mindful of WCC’s submission that it has not been provided with a response to the Books under the Contract, as set out above, I am not satisfied that WCC has made sufficient production efforts including best efforts and reasonable inquiries.
There are 11 refusals which remain in dispute in this group.
[83] With respect to Refusal #40, WCC has agreed to first answer an undertaking regarding whether Ritz, its porcelain subcontractor, and then, if necessary, answer a rephrased question such that it will confirm if the circumstances in question were out of Ritz’s control.
Similarly, WCC has agreed to first answer Refusal #45 regarding the location of concrete where certain issues arose, then the parties will determine if it is necessary to answer Refusal #44 regarding problems which can arise when water is added to concrete.
WCC shall provide these answers within 30 days.
With respect to Refusal #47, WCC has agreed to ask Mr. O’Connell, and advise if, as he suggested, he was “positioning” when Limen Structures was asked to perform its work on the saddle slab within 45 days, a response which WCC shall provide within 30 days.
[84] At Refusals #48-#49, TTC seeks all records and analysis regarding WCC’s tracing of delay notices including to the extent to which it involves WCC’s subcontractors.
These questions arise from email chains between WCC and Limen Structures.
WCC has agreed to make reasonable inquiries to determine what documents exist specific to Limen Structures, both on a look ahead and actual basis, which I am satisfied is reasonable and proportionate in the circumstances and which WCC shall do within 30 days.
[85] WCC has agreed to advise when the work referenced in the statement regarding the lack of proper concrete consolidation in the trainway walls in a letter from WCC to Limen was commenced and concluded (Refusal #51), which it shall do within 30 days.
[86] In my view, Refusal #52, wherein TTC asks whether WCC provided a proper schedule to IEI, is not properly posed to WCC.
Whether or not the schedule was considered proper is a question for IEI which TTC may address on its motions with IEI.
[87] At Refusal #56, TTC asks if WCC had considered terminating IEI by June 5, 2013.
WCC was terminated on April 4, 2014.
WCC has already produced the default letter, however, I am satisfied that IEI’s termination is probative of claims made by both WCC and TTC and therefore, WCC shall make reasonable inquiries and best efforts and produce relevant documents with respect to the discussions and lead up to IEI’s termination within 30 days.
[88] WCC had previously offered, and TTC now agrees, that TTC will identify specific documents that it wishes WCC to put to Mr. O’Connell (Refusal #64).
WCC also agrees to make best efforts to determine the date when Gemstar advised WCC that it would not have sufficient manpower for SW (Refusal #65) and will make reasonable inquiries and best efforts to produce documents regarding delays and deficiencies referred to in section 4.4 of the Blue Book which have not already been produced, recognizing that WCC has already reviewed 33,000 internal emails (Refusal #68).
[89] Group 6: Subcontractors – Management, Coordination and Communications – The 3 remaining questions in this group seek information and communications regarding “issues”, complaints with subcontractors or how they were “treated”.
In my view, these questions are too vague such that they cannot be answered.
It is not clear what TTC is seeking and it has not reframed or narrowed their questions.
[90] Group 7: RFIs – There are 4 questions remaining in this group with respect to the analysis, communications and review process by WCC with respect to the approximately 2,700 RFIs received by WCC (Refusals #74-#77).
While the RFIs are relevant, the issue is that TTC’s requests are broad and in many cases, disproportionate particularly considering that WCC has already explained how the RFI process worked and produced the RFI log.
Notwithstanding the amounts claimed, to order the production of all that is sought is disproportionate and it is not clear what all this would add.
As a start, I am satisfied that WCC’s proposal for TTC to identify 10 RFIs from the RFI log and WCC will make reasonable inquiries and best efforts to obtain and produce the internal analysis, communications and relevant documents created when they reviewed the 10 RFIs in question is a reasonable, proportionate start.
TTC shall identify the 10 RFIs within 15 days and WCC shall respond within 30 days.
[91] Group 8: Inflated Daily Work Activity Sheets – There are 2 questions which remain at issue.
WCC has agreed to advise of its position as to whether it would be improper for New Alliance to inflate its DWASes as mentioned in an Email from New Alliance dated August 15, 2013 (Refusal #79) and to make reasonable inquiries and best efforts to determine and advise if anyone at New Alliance advised anyone at WCC verbally and if anyone at WCC advised TTC (Refusal #81) which shall be done within 30 days.
[92] Group 9: Building Information Model (“BIM”) – WCC developed the BIM, a computer visualization tool, to assist with the coordination of its work on SW.
There are approximately 3 remaining refusals in this group (Refusals #91-#93).
TTC previously had access to the BIM, however, was denied further access due to its refusal to pay access fees requested by WCC.
I am satisfied that given its claims for deficient design, delay and other allegations, the BIM, as WCC’s own visualization tool which it relied on, is relevant.
As a reasonable and proportionate resolution of these refusals, WCC has agreed to provide TTC with access to the BIM on terms to be agreed upon between counsel without prejudice to TTC’s rights to move on the outstanding refusals in the future, if necessary.
[93] Group 10: WCC Project Documentation and Reporting - All 5 refusals in this group remain outstanding.
TTC seeks a broad range of reports, memos and other documents regarding the claims in the Books.
As a first, proportionate step, WCC has agreed to make best efforts to determine what documents exist with respect to Refusals #94-#98 which WCC shall do within 60 days.
WCC has confirmed that there are no board minutes in response to Refusal #99.
[94] Group 11: Miscellaneous – With respect to the 2 remaining refusals, WCC has previously agreed to provide all Contract billings and related information (Refusal #101) and has agreed to make best efforts to identify, in broad categories, the kinds of documents available on WCC’s server for SW (Refusal #104) so that TTC may consider more targeted, specific document requests.
WCC shall do within 30 days.
## WCC Motion Re: Schindler
[95] There were initially approximately 29 refusals at issue on WCC’s motion as against Schindler.
Approximately 12 questions remain at issue.
[96] Refusals #3-#4 and #10 regarding Schindler’s schedules are adjourned on consent given that they may be answered by other documents being produced by Schindler, without prejudice to WCC’s right to pursue these requests if the information sought is redacted or otherwise not provided.
Similarly, Refusals #16-#20 have been adjourned pending other productions.
[97] Refusal #13 with respect to the Indemnity Agreement and the reallocation of Schindler staff to Union Station remains at issue.
While TTC is producing documentation between TTC and Schindler by way of undertaking, WCC seeks Schindler’s internal correspondence.
Schindler has agreed to produce internal correspondence regarding the reallocation of employees to Union Station excluding any documentation regarding the actual work they were doing at Union Station, which is not relevant.
Schindler shall do so within 30 days.
[98] With respect to Refusals #25-#28, WCC seeks particulars regarding various statements made at paragraph 8 of Schindler’s Statement of Claim regarding Schindler’s allegations against TTC of improper design, poor project management, failure to provide feedback and unreasonable demands for changes.
Given that Schindler worked on all 6 stations, WCC seeks these documents for SW and all 5 other stations.
Similar to my conclusions above on WCC’s motion as against TTC with respect to TYSSE as a whole versus SW only, the same principles apply.
Namely, Schindler shall make reasonable inquiries and produce documents with respect to the TYSSE as a whole to the extent they affect all 6 stations (including SW) and in the interests of proportionality, Schindler is not required to produce any documents already being produced by TTC.
Schindler shall respond within 60 days.
## Schindler Motion Re: WCC
[99] There are only 2 refusals at issue on Schindler’s motion as against WCC (Refusals #1-#2).
In both cases, Schindler seeks any cash flow statements showing when WCC received and paid out funds on SW.
This is relevant to WCC’s “pay when paid” defence and the fact that WCC stopped payments to Schindler in 2017.
In my view, these refusals are probative of Schindler’s claims of non-payment and WCC’s pleaded defence and WCC shall produce this information within 30 days.
## WCC Motions Re: Limen Group and Limen Structures
[100] There are 4 refusals at issue on WCC’s motion as against Limen Group and 2 refusals as against Limen Structures, with significant overlap.
[101] Refusals #1-#2 on the motion as against Limen Structures and Refusals #3-#4 on the motion as against Limen Group are adjourned on consent.
Neither Limen Group nor Limen Structures are currently advancing claims for overhead therefore, WCC does not require this information at this time.
[102] With respect to Refusals #1-#2 on the Limen Group motion, as a proportionate resolution, Limen Group has agreed to produce relevant bid documents including forecasts which are relevant to its claims for additional labour and equipment.
Limen Group shall do so within 30 days.
## IEI Motion Re: TTC
[103] IEI’s motion with respect to TTC is related to approximately 149 refusals.
Many of these refusals may be resolved as a result of my disposition on the motions by WCC and TTC as against each other.
This motion is adjourned on consent pending the release of these Reasons For Endorsement and further discussions between IEI and TTC.
## IEI Motion Re: WCC
[104] There were initially 92 under advisements and refusals at issue on IEI’s Motion as against WCC.
There are 5 under advisements and 9 refusals which remain at issue.
[105] WCC has agreed to make inquiries and produce copies of monthly packages sent by WCC to TTC to request draws and answer any questions arising (Under Advisement #1); to make reasonable inquiries to locate and produce any statutory declarations on SW not already produced from the beginning of the Project until May 2014 (Under Advisement #2); and to answer questions arising from the production of documents related to WCC’s invoice approval process in 2013-2014 which it has already undertaken to do (Under Advisement #8).
WCC has also agreed to provide all electrical expenses as of March 31, 2014 (Refusal #23) and to advise regarding costs amounts with respect to ALL Crane and Amherst Crane (Refusal #24).
All of these refusals shall be answered within 30 days.
[106] With respect to Refusal #4, IEI asks WCC’s deponent Michael O’Connell to review his cell phone and the cell phones of 3 other WCC employees for text messages dealing with IEI.
While I am satisfied that, to the extent to which any cell phones were the accepted method of communication between IEI and WCC, there may be relevant messages, WCC is not certain whether the cell phones continue to exist.
Accordingly, as a reasonable and proportionate first step, WCC shall make reasonable inquiries internally and of the appropriate cell phone providers and advise what cell phone records are available.
[107] The parties have agreed that WCC’s agreement to produce all documents which it relies upon in its Counterclaim against IEI is a complete response to Under Advisements #16 and #20 and Refusals #18-#22.
WCC shall do so within 60 days.
[108] With respect to Refusal #16, IEI seeks particulars regarding all charges set out in Exhibit 342 (which shows payments to all 4 of WCC’s electrical subcontractors) for IEI’s scope of work.
IEI submits that since WCC’s counterclaim is three times more than IEI’s main claim, it requires the total costs of IEI’s scope of work from start to finish, including when IEI itself was doing it pre-termination, and when the other electrical subcontractors were doing it post-termination.
WCC submits that it has already agreed to make inquiries and produce all documents in support of its counterclaim against IEI.
While this would seem to be responsive to Refusal #16, to the extent to which it is not, IEI may ask follow up questions.
WCC shall do so within 60 days.
# III.
Order
[109] Counsel may submit a form of Order for my review and approval through the Masters Administration Office.
[110] To the extent to which the parties cannot agree on the terms of an Order or require clarification regarding my orders and directions, a telephone case conference may be scheduled for that purpose.
If the parties cannot agree on the costs of these motions, a timetable for written costs submissions can be spoken to on a future attendance.
[111] As set out in my Telephone Case Conference Endorsement dated February 14, 2018, refusals motions by and against TTC and the Designers are scheduled to proceed before me on February 25 and 26, 2019.
If necessary, IEI’s refusals motion as against TTC may proceed on the same day.
[112] I am available for a telephone case conference to speak to any issues in advance of these attendances from 1:30 p.m.-5:30 p.m. on Friday, February 22, 2019.
Counsel may contact the Masters Administration Office to schedule.
Alternatively, any issues can be spoken to at the commencement of the attendance on February 25.
Released: February 22, 2019
(original signed)
Master M.P. McGraw
