Court of Appeal for Ontario

Date: 2019-10-02 Docket: C66141

Judges: Juriansz, Benotto and Miller JJ.A.

Between

Southside Construction (London) Limited Plaintiff/Defendant by counterclaim (Respondent)

and

The Corporation of the City of Windsor Defendant/Plaintiff by counterclaim

and

Montgomery Sisam Architects Inc., J.P. Thomson Associates Ltd., JMR Electric Ltd., Jemini Construction Ltd., Forest City Forming Ltd., Bravo Cement Contracting Inc., Artisan Masonry Inc., Prestressed Systems Inc., Plaza Ontario Marble & Tile Incorporated, Trend Millwork & Cabinets Inc., D & M Glass & Mirror Ltd., Flynn Canada Ltd., and Williams Food Equipment Company (1998) Limited and Robson Acoustics & Drywall (2002) Inc.

Third Parties to the counterclaim (Respondents)

Counsel

David B. Williams, for the appellant, Keith Bannon

James A. Leber and Eric Grigg, for the respondent, Southside Construction (London) Limited

P. John Brunner, for the respondents, Montgomery Sisam Architects Inc. and J.P. Thomson Associates Ltd.

Heard and released orally: September 23, 2019

On appeal from: the order of Justice J. Paul R. Howard of the Superior Court of Justice, dated October 16, 2018.

Reasons for Decision

[1] This is an appeal by the non-party, Keith Bannon, from the order dated October 16, 2018 ordering him to attend to be examined as a witness in a motion pending before the Superior Court of Justice. Mr. Bannon is a lawyer of record for the City of Windsor in the proceedings. An appeal of the order by the City would not lie to this court. Counsel advised that the City had applied to the Divisional Court for leave to appeal and that leave was refused without reasons.

[2] Counsel for Mr. Bannon did not indicate any reason why Mr. Bannon cannot attend the examination or any interest of his that would be compromised by his attendance. Rather, the submissions advanced were those one would expect to have been made on behalf of the City. In any event, assuming the issues raised are properly before us, we see no merit in the submissions advanced.

[3] Counsel acknowledged that the case management judge recognized the order was extraordinary. In fact, the case management judge carefully considered all the factors set out by this court in R. v. 1504413 Ontario Limited, 2008 ONCA 253, 90 O.R. (3d) 122. He proceeded on the basis that an order to examine opposing counsel should be avoided wherever possible, and that the party seeking such relief must meet an extremely high standard before such an order is made. The case management judge set out the history of the proceedings in great detail, including the refusal of an earlier application for an order that Mr. Bannon be examined, and the unsatisfactory results of the subsequent examination of another representative of the City. We are satisfied in the circumstances that the case management judge made no error that warrants appellate intervention.

[4] The appeal is dismissed.

[5] Costs are awarded against the appellant in the amount of $15,000, all-inclusive, for each respondent.

R.G. Juriansz J.A. M.L. Benotto J.A. B.W. Miller J.A.