Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2024-05-01 Docket: COA-23-CV-0812

Between:

Halton Standard Condominium Corporation No. 550 Plaintiff (Respondent)

And:

Del Ridge (Appleby) Inc., Del Ridge Homes Inc., and the Corporation of the City of Burlington Defendants (Appellants*)

Counsel: Paul Starkman, for the appellants Derek A. Schmuck and Rosamund Taylor, for the respondent

Heard and released orally: April 29, 2024

On appeal from the order of Justice Paul R. Sweeny of the Superior Court of Justice, dated July 7, 2023.

Reasons for Decision

[1] The appellants raise two issues on appeal.

[2] First, the appellants submit that the motion judge erred by failing to order that the respondent’s action should be dismissed or stayed because of its failure to produce foundational documents from its experts. We see no error in the motion judge’s disposition of this issue.

[3] The motion judge declined to strike out the respondent’s action but granted the alternative relief requested by the appellants that the respondent write to all expert witnesses and request they provide all the documents in their possession supporting their various reports. We see no error in the motion judge requiring the appellants to take a step to compel the respondent’s compliance with the motion judge’s production order, nor do we read the motion judge’s order as limiting that step to a motion only under r. 30.10. As the motion judge stated, if the respondent fails to comply, they may well be liable for costs of any such motion. We therefore reject this ground of appeal.

[4] Second, the appellants argue that the motion judge erred by failing to dismiss the respondent’s action because of its failure to disclose a settlement agreement in a timely manner.

[5] We do not accept this argument.

[6] As this court reiterated in Skymark Finance Corporation v. Ontario, 2023 ONCA 234, 166 O.R. (3d) 131, at para. 51:

What does the expression, “to change the entirety of the litigation landscape”, mean? That is an often recurring issue in this line of cases. As the cases cited above demonstrate, the determination is fact-specific, based on the configuration of the litigation and the various claims among the parties. On appeal, a motion judge’s finding with respect to the change to the litigation landscape is a question of mixed fact and law and, barring an extricable error of law, is entitled to deference on appeal. [Citations omitted.]

[7] In essence, the appellants challenge the motion judge’s factual findings. We see no reversible error here.

[8] The motion judge was not persuaded that the settlement agreement entered into between the respondent, the defendant City of Burlington and two third parties was a Pierringer agreement or an agreement that needed to be disclosed. The motion judge found that the settlement agreement released the City with respect to some, but not all claims and that it did not change “entirely the landscape of the litigation in a way that significantly alters the dynamics of the litigation”: Skymark, at para. 53. As the motion judge found, there was no provision requiring co-operation and no unfairness to the appellants.

[9] The motion judge’s fact-specific findings were open to him. We see no basis to intervene.

[10] The appeal is dismissed. The appellants shall pay costs to the respondents in the all-inclusive amount of $10,000.

“L.B. Roberts J.A.”

“Gary Trotter J.A.”

“J. George J.A.”