SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-41992B1
MOTION HEARD: 2012/04/19

RE: City of Ottawa v. Cole and Associates Architects Inc. et. al.;
Paterson Group Inc., et. al., 3d parties;
1222104 Ontario Ltd. O/A Grimes Roofing and Sheet Metal et. al., 4 th parties

BEFORE: Master MacLeod

COUNSEL:
J. Stephen Cavanagh, for the 4th party (moving party)

Thomas D. Galligan, for the 3d party, Vicwest Corporation (responding party)

HEARD: April 19 th , 2012

REASONS FOR DECISION

[ 1 ] The fourth party, Grimes roofing and Sheet Metal, brings this motion for particulars of the claim advanced against it by the third party Vicwest Corporation. Grimes also seeks extension of the time for delivering a defence. For the reasons that follow, [particulars will not be ordered but an extension of time is granted.]

[ 2 ] This motion is specifically concerned with the level of particularity necessary in a 4 th party claim. More generally, it raises the question of the function of particulars and how recent rule amendments and changes in the civil litigation landscape should impact on the court’s discretion to order them. The importance of clarifying pleadings is not new but it has perhaps been infused with new urgency.

[ 3 ] These reasons attempt to address those imperatives but on the facts of this case, given the nature of 4 th party claims, and the state of the other pleadings, it would be inappropriate to impose an onerous requirement of particularization on this 3 rd party.

FACTUAL BACKGROUND & ISSUE TO BE DECIDED

[ 4 ] The City of Ottawa required a new fire station for Riverside South, an area of urban growth located south of MacDonald-Cartier International Airport. Designated as “Fire Station No. 37”, the new facility was designed by Cole and Associates Architects Inc. and constructed by Frecon Construction Ltd. It was completed in 2005 and opened as part of the 150 th anniversary celebrations of the City of Ottawa. A distinctive feature of the building is a curved roof. Unfortunately the building has suffered from repeated water infiltration since it was constructed. This is the subject of the main action in which the architect and general contractor are the defendants.

[ 5 ] The roof on the fire station was constructed using steel roofing panels manufactured and supplied by the third party Vicwest Corporation.

[ 6 ] The architect issued a third party claim against Vicwest and against Paterson Group Inc., the structural engineers. It is alleged by the architect (“Cole”) that Vicwest recommended the “Tradition 100 Roof System” when it knew or ought to have known that the system was unsuitable for the slope of the roof and Ottawa weather conditions. The architect also alleges that Vicwest failed to provide Cole with literature providing “recommendations on minimum slope” and “important installation requirements”.

[ 7 ] Vicwest defended the third party claim and the main action. It has crossclaimed against Paterson, Cole and Frecon. Vicwest denies ever having given advice to Cole and denies ever having seen the roof design. Paragraph 15 of the defence and crossclaim, reads in part as follows:

“15. Vicwest Corporation’s involvement with the Plaintiff’s building was limited to shipping ordered building materials to the general contractor for installation in a design in which it had no involvement ...”

[ 8 ] Vicwest then issued the subject fourth party claim for contribution and indemnity from Grimes and from Fishburn/Sheridan & Associates Ltd.

[ 9 ] Grimes was the roofing subcontractor hired by Frecon to install the roof panels supplied by Vicwest. Fishburn/Sheridan apparently prepared the shop drawings. Neither Frecon nor Cole make any allegation against Grimes for faulty installation or workmanship. The only allegations against Grimes are those set out by Vicwest in the 4 th party claim.

[ 10 ] In the 4 th party claim, Vicwest asserts that Grimes … “was responsible for the purchase and installation of the roofing on the project.” It also alleges that Grimes declined “on the ground of price to purchase any form of advice from Vicwest … including … preparation of shop drawings and the provision of inspection services.” Grimes, it is alleged, obtained “these services from others, including Paterson and Fishburn/Sheridan”.

[ 11 ] These allegations in paragraph 9 of the 4 th party claim appear at odds with the allegation in paragraph 15 of the Statement of Defence that Vicwest shipped building materials to the general contractor (Frecon). They are also at odds with the allegation by Cole that Cole obtained advice from Vicwest though of course that allegation is denied by Vicwest. In any event it appears to be an allegation by Vicwest that there was some relationship between Grimes and Vicwest and not merely a relationship between Grimes and Frecon.

[ 12 ] The 4 th party claim then goes on to assert that “if Cole was put to any loss, such loss was caused to or contributed to by the actions of Grimes ... particulars of which are as follows:”

i. it failed to disclose problems and concerns it had, or ought have had, with regard to the extent, nature and particulars of the design of the roof to Vicwest and its representatives;

ii. it separately made its own determination as to the suitability of the Vicwest Tradition 100 roofing material for the project satisfying itself as to the appropriateness of the Tradition 100 roofing material for the design and the project as a whole;

iii. it failed to install the roofing in accordance with the design, inspections, and specifications of the project;

iv. it failed to adequately advise of the difficulties both in the design and the installation and failed to warn any or all of the Plaintiff, Cole, Paterson and Frecon and other about these difficulties.

[ 13 ] Despite the assertion that the paragraph contains particulars of the allegations against Grimes, the moving party alleges that i), iii) and iv) of these claims are lacking in sufficient particulars for pleading purposes. A demand for particulars was served as follows:

a. What are the “problems and concerns” which it is alleged that Grimes had or ought to have had with regard to the extent, nature and particulars of the design of the roof?

b. In what ways is it alleged that Grimes failed to install the roof in accordance with the design, inspections and specifications of the project?

c. Which design, inspections and specifications are being referred to in this paragraph?

d. If “the difficulties both in the design and the installation” referred to in this paragraph [11A (iv)] are anything different from what has been alleged in paragraph 11A (i), particulars as to what “the difficulties both in the design and the installation” are alleged to be.

e. Who are the “others” whom Grimes is alleged to have failed to advise of “the difficulties”?

[ 14 ] The question before me is whether or not to order an answer to the demand for particulars or some part of it. This is a discretionary remedy so the court must determine whether or not it is appropriate to exercise that discretion. To decide that it is necessary to consider the nature and function of particulars in our system of pleading.

PURPOSES OF PLEADING

[ 15 ] Before considering the nature of particulars and why they might be necessary for pleading, it is helpful to say a word or two about the current system of pleading in Ontario. I say current because the specific requirements for pleading flow from the specific wording of the Ontario Rules of Civil Procedure and they of course have been amended from time to time. In reality however Ontario uses “fact based pleading” which is the system that was adopted throughout the common law world in the 19 th century. It should be noted that fact based pleading was abandoned in the United States in 1938 and more recently in England in 1999. I mention this only to make the point that pleadings in those two important jurisdictions now work somewhat differently than our own.

[ 16 ] The English court system was transformed in 1875 by the fusion of law and equity and by the introduction of a new system of pleading. The same reforms were adopted in Ontario in 1881. In this jurisdiction the Judicature Act, 1881 , 44 Vic. C. 5, united and consolidated the courts of common law and equity and led to the introduction of new pleading rules. This was a response not only to the need to harmonize pleadings in equity and in law but also to finally eliminate the technicality of special pleading and forms of action that had encumbered the common law. Under the new system parties were required to set out in numbered paragraphs “as concisely as may be a statement of the material facts on which the party pleading relies, but not the evidence by which they are to be proved.” [1] Though there have been many changes in civil procedure since that time, this is readily recognizable as the formula that now appears in Rule 25.06 of the current Ontario rules.

[ 17 ] Rule 25.06 contains the general requirements for pleadings. A party is to set out in numbered paragraphs a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proven. A party may, but need not, plead a conclusion of law but if a conclusion of law is pleaded then the material facts giving rise to that conclusion must also be pleaded. This is a critical point about fact based pleadings. It is not necessary in this system to precisely state the legal basis for a claim or to set out each “count” though it is permissible to do so. It is however necessary that the facts as pleaded disclose a cause of action and if a conclusion of law is pleaded then the facts necessary to support that conclusion must be pleaded with sufficient particularity. As an example, negligence is a conclusion of law so a claim of negligence must be supported by pleading the specific facts by which the plaintiff intends the court to reach that conclusion. There are also specific subrules containing requirements and interpretive rules for specific kinds of pleadings.

[ 18 ] Rule 25.07 is the rule dealing with defences. The first four subrules read as follows:

RULES OF PLEADING — APPLICABLE TO DEFENCES

Admissions

25.07 (1) In a defence, a party shall admit every allegation of fact in the opposite party’s pleading that the party does not dispute. R.R.O. 1990, Reg. 194, r. 25.07 (1) .

Denials

(2) Subject to subrule (6), all allegations of fact that are not denied in a party’s defence shall be deemed to be admitted unless the party pleads having no knowledge in respect of the fact. R.R.O. 1990, Reg. 194, r. 25.07 (2) .

Different Version of Facts

(3) Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead the party’s own version of the facts in the defence. R.R.O. 1990, Reg. 194, r. 25.07 (3) .

Affirmative Defences

(4) In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading. R.R.O. 1990, Reg. 194, r. 25.07 (4) .

[ 19 ] The clear intention of these subrules is to try to focus the dispute as early as possible. It is not permissible simply to deny the entire claim. A defendant is to admit all allegations that it does not specifically deny and is to set out its own version of the facts as well as any affirmative defences. This is a critical exercise because the pleadings are the foundation for rights of production and discovery and the touchstone for determining what is relevant. [2]

[ 20 ] This concern for precision in pleading is not new. The exact same observation was made under the former Rules of Practice by Lerner J. in Steiner v. Lindzon, in 1976. “Accurate knowledge by means of particulars of the claim or defence of a litigant by way of particulars is desirable at the early stages of litigation, to avoid wasting time and money in extensive examinations” he observed. He went on to state that although “the information obtainable by particulars can often be obtained in examinations for discovery, the object of particulars differs from the objects of discovery in that the latter is to get at the knowledge of the adverse litigant, while the former is to enable the applicant to frame his pleadings. [3] Thus, even under the old rules, the court was alive to the relationship between pleading, discovery and expense. I will return to the function of particulars in a moment.

[ 21 ] In 2012 production and discovery are frequently the most expensive phase of civil litigation. This issue has of course been the subject of review by the Civil Justice Review, the Discovery Task Force and the Osborne Report and consequent rule amendments directed towards cost containment and proportionality. The most recent amendments are those that came into force in January of 2010. Those amendments are significant when considering the purposes of pleadings. In particular the rules now require the following:

a. Pursuant to Rule 29.1 the parties are required to confer and to agree to a discovery plan. The plan is to include the intended scope of discovery and production having regard to “relevance, costs and the importance and complexity of the issues in the action”. The plan is also to reflect principles of expediency, cost effectiveness and proportionality. In dealing with electronic documents, the parties are to have regard to the Sedona Canada Principles.

b. “Proportionality” in discovery is specifically mandated by Rule 29.2 and is a general interpretive provision included in Rule 1.04 (1.1). Rule 29.2.03 contains guidance for applying proportionality.

c. The ambit of relevance for production in Rule 30.02 and discovery in Rule 31.06 is narrowed from information “relating to any matter in issue” to information “relevant to any matter in issue”.

[ 22 ] So the question posed by rule amendments is whether particulars should more readily be ordered than would previously have been the case. That may be so because of enhanced importance on focused litigation. On the other hand “particulars” are a very specific and formal method of focusing the pleadings. It would not do to routinely permit a party to delay pleading while the parties debate the need, nature and form of a response to a demand for particulars.

PARTICULARS

[ 23 ] A request for particulars, quite simply, is a request for more detailed information. It is not necessary that there be anything fundamentally wrong with the pleading before ordering particulars. Quite the opposite. The cases establish that particulars are not the appropriate remedy for defective pleading. If the pleading is deficient because for example it discloses no cause of action or offends the pleading rules then the appropriate relief is to strike out the pleading. [4] “Particulars” are additional details requested by the party wishing to plead. As Master Sandler put it, particulars are “additional bits of information or data or detail that flesh out the material facts but they are not so detailed as to amount to evidence” [5] I would only add that facts, particulars and evidence are not always watertight compartments.

[ 24 ] The rule reads as follows:

25.10 Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.

[ 25 ] It will be apparent from the wording of the rule that a party may always demand particulars and the other party may furnish them. But the rule does not require the court to order particulars unless it is appropriate to do so. The court “may” order particulars. It is on this one word, “may” that all of the jurisprudence concerning particulars is focused.

[ 26 ] The case most often cited in this regard is Physicians’ Services Inc. v. Cass . [6] This brief endorsement of the Court of Appeal from 1971 reiterated a long standing principle that particulars would be ordered at the pleadings stage only if 1) they are not within the knowledge of the other party; and 2) they are necessary to enable the other party to plead. [7] More extensive reasons approving the same formula can be found in Steiner v. Lindzon, supra. Of course these decisions were both decided under the old “Rules of Practice” rather than under the Rules of Civil Procedure . At that time Rule 140 read as follows:

140. A further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleading or special endorsement may be ordered in all cases (Form 71).

[ 27 ] Rule 140 was written at a time when actions were commenced by generally or specially endorsed writs of summons followed in some but not all cases by a separate statement of claim. Though the wording of Rule 140 is different from Rule 25.10 and though the form of the documents constituting the pleadings was different in the 1970s, this court has since expressed the view that Physicians Services remains the leading authority and is the correct approach under Rule 25.10. [8] The cases also establish that the onus is on the moving party to demonstrate that particulars are necessary in order to plead. In that regard an affidavit will be crucial unless the pleading itself is so self evidently a bald pleading that it speaks for itself. No affidavit was filed in the case at bar so it falls to be determined on the pleading itself and specifically the paragraphs excerpted and appearing above.

[ 28 ] Necessity in order to plead cannot be taken too literally. Of course it is always possible to respond to a bald assertion by making a bald general denial. So the question is not whether it is technically possible to respond with some kind of pleading but rather whether the pleading allows issue to be joined in the manner contemplated by the pleading rules. A pleading should allow the responding party to plead intelligently and appropriately. [9]

[ 29 ] Particulars however are not merely an innocent request for information. They are a deliberate attempt to pin down the other party. Once ordered, particulars become part of the pleading. Rule 48.03 (1) requires the demand or order for particulars and the particulars delivered in response to be included in the trial record. Particulars may therefore refine or narrow the pleading. As such it is obvious why the party requesting the particulars wishes to have them and why the party receiving the demand may be reluctant to give them at a point in time when they may have only a sketchy understanding of the facts and the evidence.

[ 30 ] In summary, one function of particulars is to “limit the generality of pleadings and thus to limit the issues which have to be tried and as to which discovery must be given.” [10] Another is to clarify the pleading to permit the party responding to a pleading to plead intelligently. [11]

[ 31 ] A party in receipt of a claim has a number of immediate needs which flow from a proper understanding of the claim asserted against it. [12] In the case at bar, besides the obvious need to decide whether or not to defend the 4 th party action, 3 rd party action and main action is the question as to whether to issue a 5 th party claim, crossclaim or counterclaim. The pleading must also be clearly understood because relevant documents and facts must be marshalled in order to obtain legal advice and the parties must take steps to preserve potentially relevant paper and electronic documents. All of this is to say that the requirement of particulars for the purpose of pleading should not be construed too narrowly. A request for particulars should be upheld if it appears it will result in more focused and intelligent pleading and it should be refused if it simply adds another unnecessary step or delays the progress of the action.

[ 32 ] In the case at bar there is no affidavit providing evidence in support of the conclusion that ordering particulars is necessary. I am left with the pleading itself and the demand for particulars. Sometimes that is enough. [13] Is that the case here?

The dilemma of a third or fourth party

[ 33 ] Third, fourth or subsequent parties are often parties brought into a dispute in which they may only have had peripheral involvement. In the instant case, Vicwest is a manufacturer of roofing material and a supplier to the project but may have had no other involvement. The plaintiff’s allegation which is the foundation for the third party claim and is of course unproven is that the “roofing system as designed and installed, does not provide adequate weather protection, that the roofing system has been installed contrary to the manufacturer’s recommendations and that the secondary waterproofing layer was improperly installed and supported”

[ 34 ] Cole has denied these allegations but in the third party claim it has alleged that it was the responsibility of Paterson Group to inspect, to raise concerns and to seek revision to the drawings and specifications prepared by Cole. These are not allegations against Vicwest. The allegation against Vicwest is that Vicwest recommended the Tradition 100 system to Cole and provided typical details for use by Cole in the roof design. Cole asserts that it relied on these recommendations. Cole also asserts that Vicwest provided details to Grimes and that Grimes included these details in its shop drawings.

[ 35 ] So it is in this context that Vicwest has issued a 4 th party claim. If the plaintiff succeeds against Cole and if Cole succeeds against Vicwest then Vicwest seeks to recover from Grimes. Paragraph 9 of the 4 th party claim is the assertion that Grimes purchased the roofing materials but declined to purchase advice, inspection services or shop drawings from Vicwest. It then alleges that if the plaintiff suffered a loss recoverable from Cole then the loss was the fault of Grimes.

[ 36 ] It seems inherently unreasonable to expect a third party with limited knowledge of the main action (Vicwest in this case) to be more particular in the 4 th party claim than the plaintiff is in the claim or defendant (Cole in this case) is in the third party claim.

Are particulars required in this case?

[ 37 ] Paragraphs A (i) and (iii) of the 4 th party claim simply repeat the allegations made by other parties. For the reasons given above, it would be unreasonable to expect the 3 rd party to particularize a claim against Grimes when it faces an unparticularized claim and 3 rd party claim.

[ 38 ] I agree that there are questions raised by this claim. For example, is the 3 rd party alleging that it has a contractual relationship with Grimes? What, if any basis is there for saying that Grimes purchased the roofing material when Vicwest alleges in its 3 rd party defence that it delivered the roofing material to Frecon? What cause of action does Vicwest assert against Grimes? These however are not the particulars that are sought and there are other processes to obtain those answers.

[ 39 ] On the other hand Vicwest will have specific knowledge that might not be in the possession of the other parties. For example is there a specification or manufacturer’s recommendation in relation to the Tradition 100 system that Vicwest alleges was ignored by Grimes but should have been known to Grimes?

[ 40 ] Looking then at the demand for particulars, it is legitimate to ask Vicwest to specify what specifications it is alleging that Grimes ought to have followed and particularly whether it is referring to manufacturer’s specifications or contract specifications. It is also legitimate to ask who Vicwest is saying that Grimes ought to have notified of problems.

[ 41 ] To that limited extent, the third party is to provide particulars. This is to be accomplished within the next 15 days. The parties are then to confer and agree to a litigation timetable and discovery and production plan. I may be spoken to if orders are required extending any mandatory times under the rules.

Costs

[ 42 ] Success on this motion appears to be divided. I have ordered minor particulars but not in the precise form of the demand. Subject to any offers to settle therefore this does not appear to me to be a case for costs.

[ 43 ] Should counsel wish to ask for costs or to make submissions, they may contact my office to obtain further direction but if no such direction is sought within 15 days, there will be no order as to costs.

Master MacLeod

Date: June 6, 2012