Court File and Parties

Court File No.: CV-20-652315
Date: 2025-03-27
Court: Ontario Superior Court of Justice

In the matter of the Construction Act, RSO 1990, c. C.30, as amended

Between:

Village Homes Inc.
J. Binavince and S. Cullen, for the plaintiff
Plaintiff

-and-

Valerie Connelly
J. Frustaglio, for the defendant
Defendant

Heard: February 20, 2025

Reasons for Decision (Mid-Trial Motion to Strike Evidence)

Robinson A.J.

Introduction

[1] Trial in this lien action commenced on February 11, 2025. This mid-trial motion was brought by the plaintiff challenging the affidavit evidence of the defendant’s witness, Yu Ching Lai, and seeking an order striking portions of both Mr. Lai’s affidavit and his report dated September 13, 2020. The impugned portions of Mr. Lai’s affidavit deal with the issue of whether rebar and concrete were present in the north concrete block wall constructed by the plaintiff at the subject premises and Mr. Lai’s observation of cracking in that wall. Proper construction of the wall is a significant disputed issue at this trial. The plaintiff also requested that I exclude further evidence from Mr. Lai on the impugned portions of his affidavit and the appended report.

[2] This trial was originally scheduled for five days. The evidentiary phase was scheduled to be completed within the first four days. That has not happened. There have been ongoing objections, voir dires, evidentiary challenges, and multiple substantive admissibility rulings following submissions. This motion needed to be heard before Mr. Lai was called as a witness. As a result of these various mid-trial issues, additional trial dates became necessary to complete the evidentiary phase of trial and closing submissions.

[3] Given the nature of the plaintiff’s objection to Mr. Lai’s evidence, motion materials were needed. To expedite hearing this motion, I directed the exchange of supporting affidavits and written legal submissions on an abridged timetable, with cross-examination on affidavits to be conducted before me. Both of the defendant’s two responding affiants – the defendant herself and Mr. Lai – were cross-examined. I thereafter heard the parties’ submissions and granted the motion, but only in part. I provided brief oral reasons and advised the parties that more fulsome written reasons would follow.

[4] Specifically, I was satisfied that Mr. Lai had no direct personal information, knowledge, or observations with respect to whether rebar and concrete was (or was not) placed in the disputed north concrete block wall. Despite a statement in Mr. Lai’s trial affidavit that he “personally witnessed” those deficiencies during site visits, his cross-examination testimony on this motion supported that his observations were based on hearsay from a video taken during demolition of the wall at a time when he was not present. That video was provided to him by the defendant. Given his lack of personal knowledge, I held that Mr. Lai was not a competent witness to comment on the presence or lack of proper rebar and concrete and struck paras. 10(f) and 10(g) from his affidavit. I also excluded evidence from Mr. Lai on the purported observation set out in his site report dated September 13, 2020 with respect to a lack of full-length rebar and hollow cores.

[5] I accepted, though, that Mr. Lai should be permitted to testify on his personal knowledge and observations on the north wall cracks that he observed. I found insufficient prejudice to the plaintiff from allowing Mr. Lai’s evidence on that issue to warrant excluding it.

[6] I now provide my written reasons for that disposition in advance of the closing submissions at the trial.

Analysis

[7] The plaintiff’s argument for excluding Yu Ching Lai’s evidence is based on the defendant’s alleged failure to meaningfully comply with an undertaking argued to require her to obtain and produce Mr. Lai’s file and her refusal to produce her communications with Mr. Lai. The plaintiff argues that the defendant failed to make meaningful efforts to satisfy with her undertaking and breached her disclosure and production obligations by refusing to produce relevant communications with Mr. Lai. The defendant submits that she did not breach her undertaking and that her refusal of the specific production request was proper.

[8] At the first hearing for trial directions before me in this reference, I granted leave for documentary discovery and examinations for discovery. However, the parties did not exchange traditional affidavits of documents. Rather, I ordered a modified form of documentary discovery. Documents on which a party’s claim or defence were based, in whole or in part, were to be referenced in the relevant item in the parties’ Scott Schedules and provided when serving them. As a result, several requests were made during examinations for discovery for additional documents that were not produced with the Scott Schedules.

[9] The defendant was examined for discovery on November 2 and December 13, 2022. During her examination, the plaintiff made the two production requests that are the basis for this mid-trial motion. I deal first with the refusal. The specific exchange matters, so I reproduce it below:

294. MR. BINAVINCE: Okay. I would like you to disclose to me all your communications with YCL Structural Designs Ltd., please, both e-mail and text.
     MS. KWINTER: I am going to take that under advisement.

295. MR. BINAVINCE: Okay.
     MS. KWINTER: What is the relevance?

296. MR. BINAVINCE: I see relevance, but you have...this is the consultant that did the drawings and is critiquing my client's work. So, I think it is [relevant].
     MS. KWINTER: Okay, so if you want communications about certain subjects, I may be able to help you.

297. MR. BINAVINCE: No, no, I don’t want you to determine what is relevant. I want to determine what is relevant, so that is the request, you will give me what you give me.
     MS. KWINTER: Okay, to be clear, you see relevance but you are not going to tell me what that relevance is?

298. MR. BINAVINCE: I say the communications between the owner and the consultant are relevant.
     MS. KWINTER: I understand, but are you not going to tell me why?

299. MR. BINAVINCE: Well, to me it is obvious.
     MS. KWINTER: Okay, I will take it under advisement.

[10] Although taken under advisement, an answer was not given by the defendant. The question was accordingly deemed refused by operation of subrule 31.07(b) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”).

[11] I agree with the defendant that an answer need not have been provided. The production request as framed was overbroad, which is only underscored by the plaintiff’s lawyer stating that he did not want the defendant to determine relevance, but rather wanted to review the communications and determine what is relevant himself. Mr. Lai’s involvement on this project includes matters that are not at issue in this litigation. The defendant had no obligation to produce irrelevant communications. It was proper for the defendant’s lawyer to request clarification on the asserted relevance, which was done multiple times. The plaintiff’s lawyer did not provide it.

[12] The defendant separately undertook to request Mr. Lai’s complete file, including field notes. That exchange was as follows:

308. MR. BINAVINCE: Okay. I would like you to ask YCL Structural Designs Ltd. for a copy of its complete file with respect to this renovation.
     MS. KWINTER: That is fine. You can have that.

309. MR. BINAVINCE: Pardon me?
     MS. KWINTER: Yes, you can have that undertaking.

310. MR. BINAVINCE: Okay, including all notes, field notes.
     MS. KWINTER: You can have that undertaking. The only caveat that I will make is to the extent that there might be anything litigation privileged in there, obviously we will remove it, but I will let you know if we are claiming privilege over any documents.

[13] Only a partial answer was provided on July 17, 2023, consisting of various undated photographs and the following statement:

Please see tab 1 which enclosed all documents received from the engineer to date. However, we are in the process of seeking further documents from the engineer. A request for same from YCL Engineering was made.

[14] Despite the statement that further documents were being sought from Mr. Lai, no further answer was provided and no further documents were produced by the defendant. Mr. Lai’s file, apparently consisting of hundreds of documents and photographs, was ultimately produced by Mr. Lai himself to the plaintiff in the evening of the first day of trial.

[15] Once the undertaking was given, the defendant had an obligation to answer it. That obligation is expressly acknowledged in subrule 31.07(4) of the Rules, which provides that nothing in the Rules relieves a party who undertakes to answer a question from the obligation to honour that undertaking.

[16] The plaintiff points to Gheslaghi v. Kassis as supporting that the defendant had to make a “real and substantial effort” to seek out what was requested. The plaintiff argues that the defendant’s efforts cannot be characterized as “real and substantial”, since she failed to even explain how she obtained the photographs disclosed in her answers to undertakings. Conversely, the defendant argues that she undertook only “to ask” for the file, not to produce it, and that she had no obligation to obtain and produce it. The defendant’s evidence in response to the motion is that both she and her current lawyers made efforts to ask for and obtain the file, although tendered no evidence of any requests made after July and August 2023.

[17] The specific language of an undertaking matters. In my view, Gheslaghi v. Kassis does not assist the plaintiff. It dealt expressly with the meaning and enforcement of a “best efforts” undertaking. Many of the cases cited to me by both sides deal with “best efforts” undertakings. However, the defendant was neither requested to give nor did she give an undertaking to make “best efforts” with respect to Mr. Lai’s file.

[18] While the defendant may not have been required to make “real and substantial efforts” to obtain and produce Mr. Lai’s file, she was still required to make reasonable efforts to honour her undertaking to request it. The record before me supports fairly minimal efforts to obtain it and an insufficient explanation for why only partial production was made. Importantly, as of July 2023, the defendant’s position was that efforts to request the file were still being made. No update to that answer with what ongoing efforts were being made appears to have been provided until after this mid-trial motion was brought, despite Mr. Lai cooperating in providing a trial affidavit.

[19] Ultimately, when considering the parties’ arguments, I determined that I need not delve too deeply into whether the defendant breached her discovery obligations. Mr. Lai was being tendered at trial as a “participant expert”, not an expert under rule 53.03 of the Rules. Accordingly, Mr. Lai’s impugned opinion evidence must meet the test for admissible opinion evidence by a participant expert.

[20] “Participant experts” have been recognized in case law as witnesses with special skills, knowledge, training, or experience, who have not been engaged by or on behalf of a party to the litigation, and who are permitted to give limited opinion evidence without having to comply with rule 53.03. There are two requirements for their opinion evidence: (i) the opinion to be given must be based on the witness’ observation of or participation in the events at issue; and (ii) the witness must have formed the opinion to be given as part of the ordinary exercise of their skill, knowledge, training and experience while observing or participating in such events: Westerhof v. Gee Estate, 2015 ONCA 206 at paras. 60-61.

[21] During cross-examination on this motion, Mr. Lai confirmed that he was not present when the north concrete block wall at issue was demolished. He further agreed that it was correct that the notations in his report were created following both his review of the demolition video provided to him by the defendant and talking to the defendant. Mr. Lai was not re-examined on his testimony.

[22] The defendant argued that there was only limited cross-examination on Mr. Lai’s inspection of the north concrete block wall and that Mr. Lai should be permitted to testify further on his observations and his report. However, there is no evidence that Mr. Lai personally inspected the wall with respect to the presence or lack of rebar and concrete. His cross-examination confirmed that he formed his opinions based on his review of the video and speaking to the defendant. His opinion was thereby not based on his own observations of or participation in the demolition or his own inspection of the wall. I was satisfied that his opinion on the alleged lack of rebar and concrete went beyond the scope of admissible opinion for a participant expert as set out in Westerhof v. Gee Estate.

[23] With respect to the issue of cracking in the north wall foundation, Mr. Lai testified during his cross-examination that he personally witnessed the cracks. Specifically, Mr. Lai confirmed that he had an independent recollection of attending the site and seeing the cracks “on or about” August 14, 2020. Although his cross-examination did create some uncertainty about the date on which Mr. Lai first observed the cracks and his recollection of the circumstances under which he viewed them, he was consistent in his testimony that he had personally seen them. I was satisfied that his opinions with respect to the cracking were formed after having made his own observations of the cracking on site and that his proposed opinion evidence on the wall cracking fell within the ambit of admissible opinion evidence for a participant expert.

[24] In my view, the date on which Mr. Lai first observed cracks and the timing of his observations were both more properly matters for assessing the reliability and weight of his trial evidence, not matters for the threshold stage of admissibility of the opinion evidence.

[25] Although, in my view, the defendant did not make reasonable and sufficient efforts to satisfy the undertaking to request Mr. Lai’s file, I was not convinced that prejudice to the plaintiff was great enough to exclude Mr. Lai’s evidence on the cracking and bar further testimony on the issue. I accept that the “document dump” from Mr. Lai at the beginning of trial did create some prejudice, but Mr. Lai was the last defence witness to be called and his opinions on the cracking were known throughout the litigation. Cross-examination of Mr. Lai on this motion by the plaintiff’s lawyers also demonstrated that there had been sufficient time to review the file to prepare a proper and competent cross-examination on his observations.

[26] The scramble and no doubt late night work resulting from Mr. Lai’s late production of his file and the minimal efforts of the defendant to obtain it during litigation are matters to be addressed in costs.

Disposition

[27] For the foregoing reasons, I struck paras. 10(f) and 10(g) from Mr. Lai’s affidavit and excluded evidence from him on the purported lack of full-length rebar and hollow cores in construction of the north concrete block wall, but did not strike the remaining impugned paragraphs or exclude evidence on wall cracking. I afforded the plaintiff with the opportunity to further cross-examine on Mr. Lai’s admissible observations, if desired, and for the parties to make submissions as to what weight should be given to Mr. Lai’s evidence in closing submissions.

Associate Justice Todd Robinson
Released: March 27, 2025