SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 3267/04
DATE: 20120507
RE: Jens Nielsen Custom Contracting Ltd., Plaintiffs v. John Litwin and Heather Litwin, Defendants
AND BETWEEN:
John Litwin and Heather Litwin, Plaintiffs by Counterclaim v. Jens Nielsen Custom Contracting Ltd. and Jens Nielsen, Defendants to the Counterclaim
BEFORE: Fragomeni J.
COUNSEL:
Kenneth W. Watts, Counsel for the Plaintiff/Defendants to the Counterclaim
Tudor B. Carsten and Jennifer A. Whincup, for the Defendants, Plaintiffs by Counterclaim
HEARD: April 18, 2012
E N D O R S E M E N T
[ 1 ] On April 19, 2012 I ruled that the Plaintiff should not be granted leave to proceed with the motion. I also ruled that in the event that my assessment and determination of the threshold issue, that is, the denial of leave to proceed with the motion, was in error, I concluded that the Plaintiff was not entitled to the relief requested.
[ 2 ] I indicated that full written reasons would be provided for these rulings.
REASONS FOR DECISION
[ 3 ] The Plaintiff in this action, Jens Nielsen Custom Contracting Ltd., seeks an order pursuant to Rule 48.04 of the Rules of Civil Procedure granting the Plaintiff leave to bring this motion.
[ 4 ] If leave is granted, the Plaintiff seeks the following relief:
An order pursuant to Rule 25.11 of the Rules of Civil Procedure expunging the engineering report of TAK Engineering Limited dated January 8, 2009;
An order pursuant to Rule 30.08(1)(a) of the Rules of Civil Procedure prohibiting the Defendants from entering into evidence the engineering report of TAK Engineering;
An order pursuant to Rule 31.07(2) of the Rules of Civil Procedure prohibiting the Defendants from introducing and entering into evidence any information or documentation relating to the corrective work carried out in accordance with the findings set out in the TAK Engineering report of January 8, 2009.
[ 5 ] In order to understand how this motion came to be heard on the morning of the start of a 10 day trial it is necessary to review in some detail the chronology of events from the start of this matter and the circumstances that surrounded each of those steps.
[ 6 ] In their Factum, the defendants set out the chronology and salient events and I wish to reproduce those in these reasons:
In early 2002, the Litwins entered into a contract with the plaintiff, Jens Nielsen Custom Contracting Ltd., to make certain additions and renovations to the Home. Jens Nielsen is the principal of Jens Nielsen Custom Contracting Ltd.
On January 10, 2008, at the conclusion of the second day of the examination for discovery of John Litwin, the parties agreed, inter alia , as follows (the “Agreement”):
that the Litwins would provide an engineer/expert report within 120 days;
that the Nielsen Entities would have 90 days after the delivery of the Litwins’ engineer/expert report to prepare and deliver their own report (and that the Litwins would provide access to the Home to the Nielsen Entities’ engineer/expert for observation); and
that no work on items in dispute is to be done until the engineers/experts have had an opportunity to examine premises, except repairs on any emergency basis.
The Agreement did not deal with production and delivery of supplementary engineer/expert reports.
Pursuant to the Agreement, the Litwins retained Hellyer Engineering Limited to do a report. That report (the “Hellyer Report”) is produced to the Nielsen Entities on May 5, 2008, three days before the 120-day deadline set out in the Agreement.
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[ 34 ] For all of these reasons the plaintiff’s motion is dismissed.
[ 35 ] The defendants shall serve and file written submissions on costs within 10 days. The Plaintiff shall serve and file its responding submissions on costs within 10 days of receiving the defendants’ submissions. The defendants shall serve and file any reply within 5 days
Fragomeni J.
DATE: May 7, 2012
COURT FILE NO.: 3267/04
DATE: 20120507
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Jens Nielsen Custom Contracting Ltd., Plaintiffs v. John Litwin and Heather Litwin, Defendants AND BETWEEN: John Litwin and Heather Litwin, Plaintiffs by Counterclaim v. Jens Nielsen Custom Contracting Ltd. and Jens Nielsen, Defendants to the Counterclaim BEFORE: Fragomeni J. COUNSEL: Kenneth W. Watts, Counsel for the Plaintiff/Defendants to the Counterclaim Tudor B. Carsten and Jennifer A. Whincup, for the Defendants, Plaintiffs by Counterclaim ENDORSEMENT Fragomeni J.
DATE: May 7, 2012