COURT FILE NO.: 51000/09

DATE: 2012/05/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROSE VENNERI , Plaintiff

AND:

ENBRIDGE GAS DISTRIBUTION INC., and ASSOCIATE CONTRACTORS and SUB CONTRACTORS, Defendants

BEFORE: Turnbull J.

COUNSEL: Plaintiff: Self-Represented

David S. Reiter, for the Defendant, Enbridge Gas Distribution Inc.

Tim Pedwell: for non parties John and Kathy-Jean Perri.

HEARD: May 28, 2012

ENDORSEMENT

OVERVIEW

[ 1 ] There are two motions before the court. The plaintiff has brought a motion entitled Plaintiff’s Responding Motion Record dated April 20, 2012 in which she seeks the production of certain documents. The defendant Enbridge has brought a motion seeking an order to examine two non party witnesses pursuant to Rule 31(10).

Summary of the Issues:

[ 2 ] The plaintiff Rose Venneri has sued Enbridge Gas Distribution Inc. (hereinafter “Enbridge”) for damages to her property (hereinafter “the property”) It is a house which had been under construction for several years at the time of the plaintiff’s loss. It is located at 12 Lantana Circle, St Catharines. She alleges that Enbridge caused the damages by negligently shutting off the gas supply at the property on January 6, 2007, which in turn caused the water pipes to freeze and burst in January/February 2007.

[ 3 ] Enbridge denies liability, and maintains that the gas was not shut off in January/February 2007 by any of its employees or agents. Further, Enbridge has defended the action, by alleging that the heating equipment at the property had malfunctioned, and/or that there had been interference with its normal operations.

[ 4 ] Enbridge seeks leave to examine the non-parties John Perri and Kathy-Jean Perri pursuant to Rules 31.10 of the Rules as it is alleged that they have information that is highly relevant to material issues in the action. It is argued that their evidence is relevant to the underpinning issue in this action as to whether or not the gas was shut off on January 6, 2007. Mr. Perri’s evidence is also allegedly relevant to the issue of whether the heating equipment at the property was malfunctioning, and or whether there had been interference with its normal operations.

[ 5 ] JKJ Heating & Air Conditioning (hereinafter “JKJ”) was the heating and air conditioning contractor that serviced the furnaces at the property from 1999 through to 2010. John Perri is its owner and was the contractor who personally serviced the furnaces at the property. Kathy-Jean Perri, who is married to John Perri, works for JKJ.

[ 6 ] In December 2010, Mrs. Venneri’s former lawyer produced a document on JKJ’s letterhead (hereinafter the “List”) [^1] . The List appears to reflect the dates on which JKJ attended at the property to perform heating equipment services, the specific work that was performed at the time, and the type of charges that were invoiced.

[ 7 ] On January 21, 2011, Mrs. Venneri was examined for discovery. At question 453, she confirmed that the List reflected the “... dates of the attendances with a sentence saying what was done.” At question 645, Mrs. Venneri was asked about an entry on the List which indicated that the gas was flowing on January 7, 2007, a day after the date on which she alleges the gas had been shut off (January 6, 2007). At that point, Mrs. Venneri explained that the List reflected billing dates not attendance dates.

[ 8 ] Following Mrs. Venneri’s examination, Enbridge requested the production of JKJ’s backup records pursuant to an undertaking that had been given. On October 26, 2011, Mrs. Venneri’s former lawyer produced 11 pages of handwritten notes which purported to be JKJ’s backup records (hereinafter the “Backup”). The Backup confirmed Mrs. Venneri’s evidence that the List reflected billing dates and not attendance dates, but was inconsistent with the List in that the List indicated Labour charges were billed, while the Backup indicated no charges had been billed. Because of these inconsistencies, Enbridge, again pursuant to the undertaking given, requested production of the actual invoices. Mrs. Venneri has not produced those invoices claiming alternately that “No other invoices are in existence after all these years and none can be located or provided” and “The companies for which the maintenance person worked no longer exist and thus no records can be located.”

[ 9 ] As a result, Enbridge retained an investigator to attend at JKJ’s offices to determine what records were available, and whether the List reflected invoice/billing dates or attendance dates.

[ 10 ] On February 17, 2012, the investigator met with Mr. Perri and learned the following:

(a) JKJ, directly through Mr. Perri, had been servicing the property’s heating equipment since 1999 on a contra basis. No bills or invoices were ever issued or created in respect of the work done, and no records were kept.

(b) The property had originally been heated by two furnaces. One broke down prior to 2006 and in 2006 some of its parts were salvaged for installation into the other in an effort to keep the other running.

(c) The List had been created by Mr. Perri’s wife Kathy-Jean Perri. Mrs. Perri had done so at the request of Mrs. Venneri. Mr. Perri was unaware of what records, if any, Mrs. Perri had used to create the List.

(d) The Backup had been created by Mr. Perri at the request of Mrs. Venneri. When he was asked how he could note billing/invoice dates (irrespective of whether they were distinct from attendance dates) when no bills and or invoices were ever created/issued, Mr. Perri appeared uncomfortable and stated, “I don’t remember exact dates and understand now where you are going with this.” [^2]

[ 11 ] After providing the response noted in paragraph 9(d) above, Mr. Perri, then declined to continue speaking with the investigator but indicated that he would contact the investigator after he had a chance to speak with Mrs. Perri. Despite that, other than on one occasion, Mr Perri did not return the investigator’s calls. Mr. Perri did not refute any of those facts in his affidavit filed on this motion.

Motion of Enbridge to Examine Pursuant to Rule 31.10 (1)

Analysis:

[ 12 ] The test for determining if a third party witness should be produced is specified in Rule 31.10(2). It is an exceptional remedy and should be granted sparingly.

[ 13 ] I have read the plaintiff’s affidavit filed in response to this motion. In my view, it is vague and avoids the central issue raised on this motion.

[ 14 ] The allegation underpinning Mrs. Venneri’s entire claim is the Enbridge shut the gas off at the property on January 6, 2007. However, on its face, the List that was created by Mrs. Perri indicates that the gas was flowing on January 7, 2007, one day after the claim alleges it was shut off.

[ 15 ] Mrs. Venneri and the Backup address this issue by explaining that the List reflects billing/invoice dates and not service/attendance dates. However, Mr. Perri indicated [^3] that no bills/invoices were ever issued, and no records were ever created. In that context, the question arises – how can there be a billing/invoice date, if no bills/invoices, or for that matter other records, were created.

[ 16 ] The only people that can answer the question of what work was done, and when, are Mr. and Mrs. Perri. Mr. Perri - because he personally performed the work and because he created the Backup. Mrs. Perri - because she created the list.

[ 17 ] Despite requests, Mr. Perri, who advised the Enbridge investigator that he needed to consult with Mrs. Perri before he could/would continue speaking, did not thereafter meaningfully speak with Enbridge and or its representatives. The plaintiff can not provide the information, which in my view is relevant to a material issue in this action.

[ 18 ] In paragraph 7 of its defence, Enbridge states that the gas was on at the material times. The records/information provided by JKJ on this relevant issue are contradictory and unclear, and require clarification. It would be unfair to require Enbridge to proceed to trial without the opportunity to examine Mr. and Mrs. Perri. They are the only people that can provide direct information about when the gas was last on (before the alleged loss), about the documentation that they each created, and about the documentation that is available.

[ 19 ] Mr. Perri is the individual who performed heating contractor services/maintenance on the furnaces at the property for the seven years that preceded and led up to the date of the alleged loss. He has direct information related to the services, repairs, malfunctioning and related maintenance of the furnace(s) at the property.

[ 20 ] In this case, I am satisfied that Enbridge has not been able to obtain the information from the plaintiff or from Mr. Perri. He has made a blanket denial of knowledge in paragraph 5 of his affidavit but has not dealt with many of the issues Enbridge would reasonably need to know about before proceeding to trial. Some of those are as follow:

a. How the dates, the nature of the work done and the labour charges were determined so specifically from 1999 to December 5, 2010 as listed in the JKJ Heating and Air Conditioning summary of maintenance for 12 Lantana Circle (the List).

b. Who created the list and identified the dates and services provided.

c. How Mr. Perri can be so certain that he did not attend at the property or speak to anyone who attended at the property on January 7, 2007. Mr. Williams noted in paragraph 15 of his affidavit that Mr. Perri had told him that he could not” remember the exact dates”. That was not refuted in Mr. Perri’s affidavit.

d. Why Mr. Perri did not get back to Mr. Williams as he had promised at the end of their meeting. Mr. Perri has not explained why, other than on one occasion, he did not return the numerous follow up phone calls from Mr. Williams.

e. What invoice, which was allegedly issued to Ms. Venneri in January 2007, was provided to Mr. Pedwell by Mr. Perri. That is asserted in paragraph 8 of Robert W. Griffith’s affidavit sworn May 9, 2012 and has not been refuted by Mr. Perri, the plaintiff or Mr. Pedwell.

f. Ms. Venneri has asserted that the dates specified in exhibit C to the affidavit of Gene Williams were “billing dates” but she asserted that no invoices were ever provided. Mr. Perri stated to Mr. Williams that his services were provided in exchange for chiropractic treatments her received from Ms. Venneri’s son. However, Mr. Perri sworn in paragraph 3 of his affidavit that “no initial invoices were sent out by our office to Ms. Venneri” which suggests that possibly at a later date, invoices were provided.

[ 21 ] In paragraph 11 of its defence, Enbridge states that the malfunctioning of the furnaces, and or alterations thereof which interfered with their proper functioning, caused and or contributed to the alleged loss. In my view, it would be unfair to require Enbridge to proceed to trial without the opportunity to examine Mr. Perri who can provide direct information about the maintenance, service, repair, and the operating state of the furnaces around the time of the alleged loss. He also can possibly provide information relative to the issues mentioned in paragraph 20 and others that counsel may consider relevant.

[ 22 ] Enbridge must be able to assess its position in this matter prior to trial. It may, upon getting the “full picture”, wish to make a Rule 49 Offer to Settle. It may decide to simply pay the claim or alternatively negotiate a settlement. Without full information, the legal process can not work fairly.

[ 23 ] The examination of Mr. and Mrs. Perri will not unduly delay the trial of this action. It is ordered that those examinations take place at a mutually convenient time within the next sixty days, failing which the defendant Enbridge may simply serve a Notice of Examination on Mr. and Mrs. Perri pursuant to the Rules of Civil Procedure . The examination of Mr. and Mrs. Perri will not result in unreasonable expenses for the other parties as the examinations should easily be completed in one day. As Mr. and Mrs. Perri have been represented by counsel, and they have already been fully informed about the nature of this action and the evidence sought from them, I am satisfied that their examination will not result in unfairness to them. There is no danger that they will be sued as a result of testifying as the limitation period has long passed.

Conclusion re Enbridge’s Motion to Examine Pursuant to Rule 31.10(1)

[ 24 ] It is ordered that the defendant Enbridge be granted leave to examine John Perri and Kathy-Jean Perri of 93 Collier Road South, Thorold Ontario, L2V 3T3, both none parties to the within action, pursuant to Rule 31.10(1) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194 within 60 days of this order at at mutually convenient time failing which the defendant Enbridge may serve them with an appointment to be examined as a witness pursuant to the Rule of Civil Procedure.

[ 25 ] It is ordered that the costs of this motion be reserved to the trial judge.

Plaintiff’s Motion for Production of Documents:

[ 26 ] Ms. Vennera indicated that the only relief she was seeking in her motion was that specified in paragraph (b) of the prayer for relief, namely that the defendant Enbridge be obliged to produce all service and attendance and invoice records for work done at her residence at 12 Lantana Circle in St. Catharines. She further wanted an order that those employees hired by Enbridge who attended at the property be examined.

[ 27 ] Mr. Reiter, counsel for Enbridge, advised the court that all the records of Enbridge for the relevant time period have been produced. Ms.Venneri, in her submissions, asserted that there were as many as five accounts opened by Enbridge for this property. In my view, she is entitled to the records for those accounts during 2006 to and including the end of February 2007, including records of any attendances at the subject property during 2006 and 2007 by any Enbridge employees.

[ 28 ] If all that information has not been provided to the plaintiff, it is so ordered. If the plaintiff feels that there are other documents that need to be produced, she is granted leave to bring a motion for such production within 60 days of the release of this ruling.

[ 29 ] During submissions before the court, Mr. Reiter explained that the notice sent by his client to Ms. Venneri dated January 3, 2007 was not a “disconnect” notice. He explained that a “disconnect notice” is sent giving the customer 90 days to get the account in good standing and then a 48 hour termination of service notice is given. I direct that the written procedures in place at the time of this event in 2007 be provided to the plaintiff if such procedures or some modification of them were in place in 2007.

[ 30 ] The plaintiff’s motion to examine Enbridge’s employees who attended at the house is dismissed. Their evidence can be sought from the representative of Enbridge who appears on the continued examination for discovery of Enbridge (if necessary) or from “will say” statements from counsel.

[ 31 ] The argument with respect to the plaintiff’s motion took little time before this court. The parties were before this court for about four hours, at least three of which centered on the motion under Rule 31.10(1). The hearing of these motions took much longer than was necessary because the plaintiff’s submissions were understandably somewhat rambling and disjointed. I direct that the costs of the plaintiff’s motion are also reserved to the trial judge.

Turnbull J.

Date: May 30, 2012

[^1]: Exhibit C to the affidavit of Gene Williams sworn March 21, 2012.
[^2]: Affidavit of Gene Williams at para. 5.
[^3]: Affidavit of Gene Williams at para. 13