Superior Court of Justice – Ontario

Court File No.: CV-20-652315
Date: 2025-01-22

Parties

Village Homes Inc., Plaintiff
Valerie Connelly, Defendant

Before: Todd Robinson

Counsel:
J. Binavince and S. Cullen, for the plaintiff
J. Frustaglio and J. Janmohamed, for the defendant

Heard: 2025-01-20 (by videoconference)

Reasons for Decision (Leave for Trial Witnesses)

Introduction

[1] This lien action has been referred to me for trial. Village Homes Inc. (“Village”) has sued Valerie Connelly for unpaid supply of services and materials for renovation and construction work at her property in Toronto. Ms. Connelly has counterclaimed seeking damages for deficient and incomplete work, as well as costs incurred from project delay. Trial is scheduled to commence in less than three weeks on February 11, 2025.

[2] I ordered a summary trial, but allowed for viva voce evidence in chief if a witness was uncooperative in providing an affidavit. Ms. Connelly failed to comply with the ordered deadline to serve her trial evidence in chief (as extended by consent agreement of the parties). Prior to the deadline, Ms. Connelly had only served a draft copy of her own trial affidavit. A sworn affidavit was served a few days after the deadline following the parties’ unsuccessful mediation. Thereafter, Village booked a case conference with me for directions on Ms. Connelly’s breach. While that case conference remained pending, Ms. Connelly served affidavits for two witnesses and will-say statements for six additional witnesses.

[3] Village consents to late service and admissibility of Ms. Connelly’s own affidavit and the affidavits of the two other witnesses. Village objects to Ms. Connelly calling the remaining proposed witnesses for whom only a will-say statement has been late-served. Ms. Connelly no longer intends to call one of those witnesses, but still wishes to call the remaining five.

[4] This hearing was convened to address several issues in advance of trial, namely:

• whether leave should be granted to Ms. Connelly to call the five disputed witnesses;
• to fix a timetable for remaining steps to trial;
• to finalize estimated examination times for testifying witnesses and non-examination trial times;
• to resolve any disputes over proposed remote testimony by any witnesses; and
• to resolve Village’s claim for costs thrown away from Ms. Connelly’s breach of my trial evidence order.

Leave to Call Disputed Witnesses

[5] With respect to leave to call the disputed witnesses, Ms. Connelly has failed to sufficiently explain her breach of my trial evidence order. Although her breach cannot be ignored, it is a breach that is compensable in costs and by latitude being afforded to Village for viva voce evidence at trial. In my view, barring the witnesses would be unjust in the circumstances. I find it to be in the overall interests of justice to have this case decided on the merits, which means allowing Ms. Connelly to call the disputed witnesses to give testimony within the confines of their served will-say statements.

[6] I am accordingly granting leave for Ms. Connelly to call her proposed viva voce witnesses, except for John Hill, whose will-say statement does not provide a fair summary of his proposed evidence. Village will not be required to serve affidavit evidence in defence of the counterclaim. Instead, Village may tender additional evidence in defence of the counterclaim by viva voce witness testimony and will be afforded latitude on reply evidence following testimony by the witnesses for which leave is being granted. Ms. Connelly shall be required to pay costs thrown away from the breach and, despite her success, Village’s costs of this hearing, fixed in the aggregate amount of $5,336.25 and payable by no later than the commencement of trial.

Analysis

Request for Leave to Call the Disputed Witnesses

[7] Leave is sought by Ms. Connelly to call five witnesses at trial to give viva voce evidence in chief: Guiseppi Forte, Roy Simoes, John Hill, Bledi Lese (a new witness in place of a previously contemplated witness), and Vladimir Samofalov (a new witness not previously contemplated). Trial was ordered and intended to proceed as a summary trial. The context under which the dispute over the five witnesses came before me is important in deciding this motion, so I will briefly review it.

[8] At the hearing for trial directions before me on February 26, 2024, I fixed both the trial dates for this lien action and the witnesses. The parties agreed to a summary trial. My order accordingly directed that all witnesses testify in chief by affidavit. I did provide a practical caveat to that order, though, namely that if a witness was not cooperative such that an affidavit of evidence in chief was not available, and the witness must be summonsed, then a will-say statement was to be served in lieu of an affidavit. Importantly, I specificallyordered as follows:

For all witnesses where a will-say statement is served in lieu of an affidavit, earnest efforts must first be made to obtain an affidavit. Evidence of such efforts may be required at trial, failing which the witness might not be permitted to testify.

[9] A timetable for exchanging trial evidence in chief and other trial materials was not fixed at that hearing. The parties subsequently agreed to a timetable, which I ordered on consent, at the next hearing before me March 25, 2024. The parties had agreed that Ms. Connelly’s affidavits of evidence in chief or will-say statements in defence of the plaintiff’s claim and in support of her counterclaim would be served by October 30, 2024. The parties subsequently agreed to extend that deadline to November 8, 2024.

[10] From the evidence before me, the parties scheduled a mediation for November 11, 2024. Village had insisted that mediation occur after the deadline for Ms. Connelly’s affidavits of evidence in chief. A proposal to serve Ms. Connelly’s affidavit on the morning of the mediation with the balance of the affidavits and will-say statements served within two weeks thereafter was rejected by Village’s lawyers. Prior to mediation, despite the agreed extension and despite a further extension being rejected, Ms. Connelly served only an unsworn affidavit of her trial evidence. No affidavits were served for any other witnesses.

[11] Ms. Connelly does not dispute that she breached my order by failing to serve her evidence in chief by the ordered deadline, as extended by agreement of the parties.

[12] The mediation was unsuccessful. Ms. Connelly served her sworn affidavit of trial evidence later the same day on November 11, 2024. A case conference before me to address Ms. Connelly’s non-compliance was then booked. A further affidavit from another witness was thereafter served on November 27, 2024. The last affidavit and the will-say statements were thereafter served on Sunday, December 1, 2024, the day before the case conference with me.

[13] Village has consented to late service and admissibility of Ms. Connelly’s affidavit and the two other affidavits, but had serious concerns with Ms. Connelly’s failure to serve affidavits for her other trial witnesses. Those concerns were discussed at the case conference. Since I had ordered that earnest efforts must first be made to obtain an affidavit before a will-say statement was served, I directed that a sworn affidavit (or affidavits) outlining the efforts made to obtain affidavits from witnesses be provided. That affidavit, sworn by Ms. Connelly, has been put before me in support of her request for leave to call the five witnesses.

[14] Ms. Connelly’s position is that she made “continuous efforts” and “diligent attempts” to secure affidavits from the five affidavits. I disagree. Her affidavit is general and provides no specific evidence of any attempts to obtain affidavits prior to the deadline for her trial evidence in chief. All but one of the supporting text messages and emails significantly post-date that deadline and follow the case conference with me being booked. Ms. Connelly’s affidavit also tends to support that draft affidavits had not even been started by the deadline for her trial evidence.

[15] There is corroborating evidence of only one communication with a witness prior to the deadline: a text exchange with Vladimir Samofalov on September 24-25, 2024. The exchange appears to relate to a meeting that is not discussed in Ms. Connelly’s affidavit. Her affidavit does not suggest that the exchange and meeting had anything to do with seeking an affidavit from him. Ms. Connelly’s affidavit is completely silent on any specific efforts made to contact any of her proposed witnesses about providing affidavits prior to the ordered deadline, as extended. It refers to efforts generally and without any specific timeline that would permit me to find that there were, in fact, material efforts to comply.

[16] Ms. Connelly had over seven months to serve her trial affidavits from the date the timetable was agreed to the extended deadline on November 8, 2024. The lack of any specific evidence of efforts by Ms. Connelly, her lawyers, or anyone else on her behalf to obtain the affidavits in that period is stark.

[17] Ms. Connelly argues that permitting her to call the witnesses is a matter of trial fairness. She points to and relies on the decision in 1269016 Ontario Limited v. Ellis, 2013 ONSC 846. In that case, Master Albert granted leave to the defendant owners to call viva voce evidence of witnesses at trial without having delivered affidavits of evidence in chief or statements of anticipated evidence, contrary to her pretrial orders.

[18] In my view, that case does not assist Ms. Connelly. It evidently turned on the fact that the defendants were self-represented. Master Albert expressly held, at para. 14, that had the defendants been represented by counsel, she would have enforced her pretrial orders requiring affidavit evidence in chief and outlines of anticipated evidence for witnesses under summons by the ordered deadline. The plaintiff contractor is also noted at para. 16 to have “reluctantly agreed” to proceed in the absence of compliance by the defendants.

[19] The facts of this case are entirely different. I reject Ms. Connelly’s submission that there are any similar access to justice concerns here. There are not. Ms. Connelly is represented by competent counsel. They reasonably understand the procedural and evidentiary rules that will govern the trial and the significance of compliance with my pretrial orders. They are also quite capable of assisting Ms. Connelly in preparing trial affidavits, document books, and other trial materials. They have done so and are continuing to do so. I agree with Village that impediments to accessing the civil justice system are typically financial resources, knowledge, language, and disability. There is no evidence before me of any such impediments here. In my view, with the assistance of her lawyers, Ms. Connelly has and continues to have the ability to meaningfully participate in this litigation process.

[20] Importantly, through her lawyers, Ms. Connelly agreed to a summary trial and consented to a deadline of October 30, 2024 to serve her affidavits or, if they could not be obtained, will-say statements. I clearly and unequivocally ordered that earnest efforts to obtain affidavits would be required. Nevertheless, despite seven months to obtain witness evidence and a consent extension to November 8, 2024, Ms. Connelly failed to make any material efforts to secure trial affidavits from her witnesses. She is not self-represented, yet there is no evidence of her lawyers or anyone else making any efforts on her behalf.

[21] Ms. Connelly points to her personal circumstances as explaining her default, namely ongoing health concerns and care of her mother and serious medical issues suffered by her father starting in late September through October. I have tremendous sympathy for Ms. Connelly’s personal circumstances and accept that these circumstances are indeed beyond her control. However, in my view, they do not exonerate her from breaching my trial order. I say this for several reasons.

[22] First, the health circumstances of Ms. Connelly’s mother have been ongoing since Village was working on site. It is undisputed that a primary intention for the renovation work was to benefit Ms. Connelly’s mother. Nothing is outlined in Ms. Connelly’s affidavit supporting any material change in circumstances with her mother’s health or care in the period leading up to September 2024.

[23] Second, I have no reason to doubt Ms. Connelly’s evidence that she was preoccupied with assisting her father throughout September and October 2024. Ms. Connelly’s evidence is that her father faced significant health concerns, underwent a major surgery, and thereafter suffered serious post-surgery complications. However, that does not explain the absence of evidence on efforts to secure trial affidavits prior to September. Ms. Connelly also only requested an extension in her deadline to serve trial evidence to November 8, 2024. Requesting a 9-day extension seems inconsistent with the position now taken on the extent of hardship faced at that time.

[24] Third, even if I accept that Ms. Connelly was unable to secure the witness affidavits herself, she is represented by counsel. I am unconvinced that Ms. Connelly’s lawyers were not fully capable of coordinating affidavits with the other witnesses while working with Ms. Connelly when she was available. Notably, Ms. Connelly and her lawyers were able to complete a sworn affidavit of her own evidence during that period.

[25] Ms. Connelly further argues that the failure of the witnesses to provide affidavits after the deadline supports that those same efforts would have been unsuccessful had she made them before the deadline. Essentially, Ms. Connelly argues that I should ignore her breach because the post-breach circumstances support that affidavits could not have been obtained. The argument ignores the fact that if Ms. Connelly knew that the five disputed witnesses would not provide affidavits, then will-say statements could still have been prepared and served by the deadline in compliance with my order.

[26] There is no question that Ms. Connelly breached my order. In my view, she has failed to adequately explain that breach. Nevertheless, I agree with Ms. Connelly that the court’s preference is to have trials decided on the merits of the case and that, in this case, it is in the overall interests of justice to permit unplanned viva voce evidence in chief at trial.

[27] There is a tension between having claims and defences adjudicated on their merits and ensuring that the administration of justice is not undermined by litigants failing to comply with court orders. In deciding whether to grant leave to call the disputed witnesses, I must balance procedural and substantive fairness to Village with substantive fairness to Ms. Connelly, as well as weighing the nature and severity of Ms. Connelly’s breach.

[28] Subrule 52.01(2)(b) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) provides that where the plaintiff attends trial, but the defendant fails to attend, the court may dismiss a defendant’s counterclaim, if any, and allow the plaintiff to prove its claim. I have previously agreed with the view of my colleague that, in a summary lien trial, trial effectively begins with service of affidavit evidence in chief and a defendant’s failure to tender ordered trial evidence amounts to a failure to appear at trial for the purpose of subrule 52.01(2)(b): Northstone Homes Ltd. v. Wu, 2021 ONSC 5173, paras. 17-19 (citing New Generation Woodworking Corp. v. Arviv, 2021 ONSC 228).

[29] Village argues that Ms. Connelly has effectively failed to attend trial by failing to deliver her trial evidence in compliance with my order. However, this is not the same situation as in Northstone or Arviv. Ms. Connelly did serve trial evidence, albeit late. Village has not opposed and is not opposing admissibility of Ms. Connelly’s affidavits.

[30] Village further argues that I should consider the law under rule 60.12 of the Rules, which allows the court to sanction a party’s non-compliance with an interlocutory order. Village points to factors identified by the Court of Appeal in Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310 (as reiterated in Advanced Farm Technologies-JA v. Yung Soon Farm Inc., 2021 ONCA 569) as well as pointing to my own prior decisions in Ponnampalam v. Thiravianathan, 2023 ONSC 1361 and Tenoes Construction v. Pinto, 2023 ONSC 3787. Village submits that denying leave to Ms. Connelly to call the disputed witnesses would be consistent with my prior decisions.

[31] All of the cases cited by Village deal with motions to strike for non-compliance with procedural obligations and court orders. There is no such motion before me here. Regardless, all of the cases are distinguishable on their facts.

[32] Both Falcon Lumber and Ponnampalam involved motions by the respective plaintiffs seeking to strike the defendants’ statement of defence for ongoing breaches of procedural obligations under the Rules and, in the case of Ponnampalam, ongoing breach of court orders. Neither involved trial evidence. In Ponnampalam, my decision to strike the defence followed several opportunities being afforded to the defendant to explain his breaches and ongoing non-compliance. The defendant had breached his production obligations, failed to attend examination for discovery, breached two consent orders affording him further opportunities to comply, and failed to pay ordered costs. No explanation was ultimately provided. In my view, Ms. Connelly’s conduct in this reference and her breach of my trial evidence order are not of the same calibre.

[33] Tenoes involved a situation where the lien claimant plaintiff had disengaged from the litigation. He repeatedly breached court orders and ultimately failed to appear at or oppose the motion brought by the defendants to discharge his lien, dismiss the claim, and strike the defence to counterclaim. There was similar conduct by the defendant in Advanced Farm Technologies, where the Court of Appeal noted that the defendant “had absented itself from the litigation” and remained in ongoing and potentially deliberate breach of court orders that had prevented the litigation from proceeding. Although my trial evidence order is not the first order that Ms. Connelly has breached in this reference, there is no equivalent pattern of breaches to that in Tenoes and Advanced Farm Technologies. Ms. Connelly has also not disengaged from this litigation.

[34] Village argues that there will be little or no prejudice to Ms. Connelly from denying leave. Ms. Connelly has first-hand knowledge of the work performed by the disputed contractor witnesses. Village also has not opposed the affidavit of Yu Ching Lai, a professional engineer whose alleged role was inspecting, observing, and assessing the renovation work. Mr. Lai is argued to have first-hand knowledge of the work performed and better knowledge than Guiseppi Forte, the City’s building inspector at the time.

[35] I cannot agree with Village’s submission. There is insufficient material before me to assess the evidentiary value of testimony from the five disputed witnesses. Although I have been directed to the Scott Schedule and certain emails that will presumably be tendered into evidence at trial, Ms. Connelly’s trial affidavit is not before me. The will-say statements for each of the disputed witnesses include items of expected testimony on their own personal observations and involvement. Ms. Connelly cannot testify to matters beyond her personal knowledge, such as what deficiencies the City’s inspector may have observed and, potentially, the specific work performed by completion contractors. That would be inadmissible hearsay.

[36] Village further argues that if leave is granted, it will be required to provide its evidence with respect to Ms. Connelly’s counterclaim without knowing the particulars of the evidence she will tender to support it. That is argued to be procedurally unfair and will afford Ms. Connelly a tactical advantage at trial. However, my trial evidence order specifically bifurcated Village’s evidence in support of its claim and evidence in defence of the counterclaim. Only the former has been served. The latter was deferred pending this hearing. Village’s fairness concern is alleviated by setting aside my prior order for affidavit evidence and permitting Village to address evidence in support of its defence to the counterclaim through viva voce evidence.

[37] Village’s further concern is that it will have only hours or minutes to marshal evidence to address testimony from the disputed witnesses, rather than weeks. I disagree. The purpose of the will-say statements is to provide fair notice of the anticipated testimony to be given. Provided they are a fair summary, then Village also has the evidence obtained through discovery. Village does accordingly have weeks to consider both cross-examination and whether additional evidence from Village’s witnesses may be required.

[38] That is precisely Ms. Connelly’s argument on prejudice, namely that there is no prejudice to Village since it has been aware of the anticipated evidence from each of the five disputed witnesses since their will-say statements were served on December 1, 2024, and that all documents relied upon by Ms. Connelly have already been produced.

[39] In assessing the positions on prejudice, I have reviewed the will-say statements in context of my order in Trial Directions #5, which required that any will-say statement comply with the following requirement:

Any will-say statement required to be served shall provide a summary of the evidence proposed to be adduced from the witness, to avoid surprise at trial. If a fair will-say statement or summary of anticipated evidence is not served, then evidence given by the witness may be held inadmissible or given reduced weight at trial.

[40] Although greater detail could likely have been included, I am satisfied that the will-say statements generally reflect a sufficiently fair summary of the anticipated evidence, with one exception. They outline with some particularity the scope of remedial work performed by each witness or the scope of the witness’ observations on which evidence will be given. Most of the will-say statements include general statements about the witnesses providing their “observations as it relates to the deficient and defective work performed by Village Homes.” However, those general statements are, in my view, sufficiently contextualized by the balance of the will-say statements, which summarize the nature of work performed and involvement in the project for each witness.

[41] Undoubtedly the will-say statements do not include the evidentiary detail of an affidavit, but I am not convinced that such level of detail is required to give fair notice to Village of the evidence likely to be tendered. That is particularly true in a case such as this one where the parties have exchanged a detailed Scott Schedule and productions, and examinations for discovery have occurred. I am also satisfied that the proposed evidence of the disputed witnesses is relevant and necessary to Ms. Connelly’s position at trial, particularly since that evidence would likely be inadmissible hearsay if tendered through any of the three affiant witnesses.

[42] The one exception is the will-say statement of John Hill. I am unable to determine if Mr. Hill’s evidence is necessary or probative to any specific issues at trial. The summary of his proposed testimony is generic and non-specific. The will-say statement provides only three bullet points of anticipated evidence, none of which give any details on how specifically Mr. Hill was involved in the project, what he is said to have observed with respect to Village’s work, and what (if any) work he performed. I note the following:

• Mr. Hill is stated to have “assisted and advised Valerie [Connelly] with respect to the renovation work that was being performed at the Project.” It does not indicate what “assistance and advice” was given, or even on what topics.
• It is stated that Mr. Hill will give evidence “that Village Homes did not perform the renovation work at the Property free from defects and in a good and workmanlike manner.” Mr. Hill is not being tendered as an expert. There is no indication as to what portions of Village’s work Mr. Hill reviewed or are likely to be the subject matter of his evidence on alleged defects and workmanship issues.
• It is stated that Mr. Hill will give evidence “of the general-contractor-like work that he performed” and “his observations and/or assessments as it relates to the deficient and defective work performed by Village Homes.” Unlike the other contractor witnesses, nothing is stated about Mr. Hill’s actual scope of work and how that work relates to Village’s scope of work.

[43] In my view, Mr. Hill’s will-say statement does not provide a fair summary of the evidence proposed to be adduced from him. Nothing has been provided to specifically identify or contextualize the issue(s) on which Mr. Hill will be testifying. I am not satisfied that Mr. Hill’s will-say statement complies with my prior order. Our civil litigation system does not condone surprise at trial. Mr. Hill’s evidence appears to be an unclear, moving target. I find that it would be procedurally unfair to Village to permit Ms. Connelly to call Mr. Hill in these circumstances. I am accordingly denying leave to call him.

[44] I am satisfied, though, that it is in the overall interests of justice to grant Ms. Connelly leave to call the remaining four witnesses. In my view, the substantive unfairness to Ms. Connelly from denying leave outweighs any procedural unfairness to Village from granting it. Ms. Connelly’s breach of my trial evidence order is compensable in costs and by affording Village additional latitude in tendering its defence to counterclaim evidence at trial. Additionally, I am satisfied that viva voce evidence in chief from these witnesses will not extend trial beyond the currently-scheduled five days.

[45] I am accordingly granting leave to Ms. Connelly to call the other four witnesses to provide their evidence in chief by viva voce testimony, provided that their evidence remains within the ambit of their respective will-say statements.

Revised Timetable to Trial

[46] The next contemplated step in the trial timetable is service of Village’s defence to counterclaim affidavit(s) of evidence in chief. Given the proximity to trial, Village would need to serve them in short order. Ms. Connelly proposed that Village’s deadline for further affidavits be the day after the hearing. Village requested until next Monday.

[47] As noted above, one of Village’s concerns with the disputed witnesses stems from Ms. Connelly having Village’s complete affidavit evidence in chief before trial when Village does not know precisely what evidence the disputed witnesses will actually give. In the circumstances, I find that it would be unfair to compel Village to deliver affidavits of its defence to counterclaim evidence. I accept that knowing which witnesses were being permitted directly impacts the evidence that Village may wish to tender. In my view, the indulgence being afforded to Ms. Connelly should not result in Village being forced to incur the time, stress, and expense of a short turnaround for further affidavit evidence, regardless of whether any draft affidavits have already been prepared.

[48] I am accordingly setting aside my prior order requiring that Village serve sworn/affirmed affidavits of evidence in chief or will-say statements in defence of the counterclaim. Time will be afforded to Village to conduct additional viva voce examination in chief of its witnesses and latitude will be given on the scope of reply evidence following testimony of the witnesses for which I am granting leave. A revised, final timetable for remaining trial materials is being fixed, as ordered below.

Finalization of Trial Times

[49] The parties are not in agreement on allocation of trial time. Ms. Connelly made a proposal that was provided shortly before the hearing. There was insufficient time at the hearing to resolve their dispute. Village has submitted a competing proposal.

[50] I will be reviewing the parties’ proposals more closely in light of my decision above on which witnesses will be permitted to testify at trial. A separate endorsement will follow with revised trial times and directions on any reallocation of time.

Remote Testimony of Witnesses

[51] The parties have agreed that two witnesses will testify remotely by videoconference. There have been no other requests for remote testimony by other witnesses. At this point, counsel should discuss any additional requests and disputes may be addressed at the outset of trial.

Costs Thrown Away

[52] The parties were unable to resolve costs thrown away from Ms. Connelly’s breach of my trial evidence order. Village seeks costs thrown away of $500 plus Village’s half of the mediation cost, namely $1,125, plus HST. Village seeks those amounts based on the parties’ agreement (and Village’s insistence) that Village should have received Ms. Connelly’s evidence prior to mediation. Village’s position is that her failure to provide the evidence impacted the mediation.

[53] Ms. Connelly submits that costs should be reserved to the ultimate determination of the action. Alternatively, any costs thrown away should be nominal and ordered payable in any event of the cause. She disputes that the mediation was wasted and points out that there is nothing before me supporting that the mediation was not fruitful or that the lack of trial evidence caused the parties’ ultimate impasse on settlement.

[54] I am not convinced that reimbursement of Village’s portion of the mediation fee is appropriately ordered as costs thrown away. There is nothing before me supporting that the parties would reasonably have settled or that the mediation would have been more productive had Ms. Connelly complied with my order. However, there were clearly costs incurred by Village following the breach that it otherwise would not have incurred, notably communications between counsel and the case conference before me on December 2, 2024. In my view, given the significance of Ms. Connelly’s breach and the indulgence being granted, those costs are properly recoverable by Village on a full indemnity basis.

[55] I do not have the hours spent by Village’s lawyers leading up to the case conference, but I do have the rates of both of Village’s lawyers from the costs outline submitted for this hearing. I have no hesitation in finding that the actual costs thrown away would match or exceed the $1,625, plus HST, that Village is seeking. I reject Ms. Connelly’s request that I defer costs to trial or make only a nominal award. I award costs thrown away in the amount of $1,625, plus HST.

Costs

[56] Ms. Connelly seeks her partial indemnity costs of this hearing in the amount of $1,957.65, payable in any event of the cause. Village’s position is that it should be entitled to its costs, regardless of the outcome. It seeks partial indemnity costs in the amount of $3,886.87.

[57] Ms. Connelly has been successful in obtaining leave to call all but one of the disputed witnesses. However, it is a significant indulgence by the court. I have not accepted that she made earnest efforts to comply with the deadline to serve her trial evidence. There was an admitted breach, which remained unremedied until after Village had requested and booked a case conference before me for directions on Ms. Connelly’s non-compliance. Ms. Connelly herself took no steps to obtain a further extension from me when Village refused to agree to one. Most of the efforts to obtain affidavits outlined in Ms. Connelly’s affidavit followed the December case conference, at which point I had already directed that evidence be served outlining the efforts taken to comply.

[58] In the circumstances of Ms. Connelly’s breach, Village’s opposition to leave to call the disputed witnesses was reasonable. Ms. Connelly required leave in any event and would thereby have incurred costs of seeking leave regardless of Village’s opposition. In my view, Ms. Connelly is not entitled to any costs of this hearing as against Village.

[59] Subrule 57.01(2) of the Rules provides that the fact that a party is successful in a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. In my view, this is a proper case to award costs against the successful party.

[60] Parties who fail to comply with a step or deadline set in a timetable order do so at their own peril: 1870553 Ontario Inc. v. Kiwi Kraze Franchise Co. Ltd., 2015 ONSC 1632, para. 55. By granting leave to call viva voce witnesses, there will be fair trial on the merits. However, it is appropriate that Ms. Connelly’s insufficiently explained breach of the trial evidence order be sanctioned. It would be contrary to the administration of justice to simply ignore it. In my view, awarding only costs thrown away for legal costs leading to and including the December case conference would be doing just that. Ms. Connelly is being afforded a significant indulgence in permitting her to call witnesses at trial whose evidence has not been tendered in compliance with my orders. The price of that indulgence is costs of this hearing.

[61] Village’s costs claim is reasonable. I do not find the time claimed to be “high”, as argued by Ms. Connelly. Although higher than Ms. Connelly’s own costs, Village prepared a supporting affidavit and factum, which was properly done given the importance of the issues and the circumstances of the breach. I nevertheless agree with Ms. Connelly that reasonable expectations are a factor. I must also make a costs award that accounts for the requirement in s. 86(2) of the Construction Act, RSO 1990, c C.30 that parties take the least expensive course of action.

[62] In all the circumstances, I fix costs of this hearing payable by Ms. Connelly to Village in the amount of $3,500, including HST.

Disposition

[63] For the foregoing reasons, I order as follows:

(a) Leave is granted for Ms. Connelly to call each of Guiseppi Forte, Roy Simoes, Vladimir Samofalov, and Bledi Lese as witnesses at trial to testify in chief by viva voce evidence, subject to the following:

(i) Each witness shall be limited to testimony in chief within the ambit of the will-say statement served. Evidence given beyond the scope of the will-say statement may be held inadmissible or given limited weight.

(ii) Each will-say statement shall be made independently available for use at trial in the event of any challenges or objections during a witness’ examination. Ms. Connelly shall separate each witness’ will-say statement into its own document, without modification, serve that copy on Village, and ensure that it has been uploaded to Case Center for trial.

(b) Leave is denied for Ms. Connelly to call John Hill as a witness at trial.

(c) The order requiring Village to serve affidavit evidence in defence of the counterclaim is hereby set aside.

(d) Village shall be entitled to tender its defence to counterclaim evidence by way of viva voce examination of witnesses at trial, provided that the prior order requiring leave to add new witnesses continues to apply.

(e) The following timetable shall apply for outstanding trial documents in accordance with Trial Directions #5:

(i) Document books from each party shall be served by January 24, 2025.

(ii) Written letters of objection to authenticity or admissibility of documents, if any, shall be served by January 31, 2025.

(iii) Briefs of anticipated read-ins shall be served by January 31, 2025.

(iv) Statements of law and books of authorities, if any, shall be served by January 31, 2025.

(v) Positions on trial issues shall be exchanged by February 4, 2025.

(vi) Village shall prepare and submit the trial brief by February 4, 2025.

(f) Ms. Connelly shall pay to Village costs in the aggregate amount of $5,336.25 by no later than the commencement of trial, comprised of the following:

(i) costs thrown away fixed in the amount of $1,836.25, including HST; and

(ii) costs of this hearing fixed in the amount of $3,500.00, including HST.

(g) This order, which forms part of my procedure book for this reference, is effective without further formality.

Todd Robinson
Date: January 22, 2025