COURT FILE AND PARTIES

COURT FILE NO.: 01-CV-18977
DATE: 2012/08/01
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PATRICK DEWAN, DOMICILE DEVELOPMENTS INC., 1436984 ONTARIO LTD., AMIRA GABRIEL, 1496055 ONTARIO INC., 117490 CANADA LTD., and the ESTATE OF SHEILA EBERTS

Plaintiffs

AND

CLAUDE ALAIN BURDET, IN TRUST

Defendant

BEFORE: Kane J.

COUNSEL: David Dwoskin, and Jonathan P.M. Collings, Counsel for the Plaintiffs

Claude-Alain Burdet, Counsel for the Defendants

HEARD: July 27, 2012

ENDORSEMENT

[ 1 ] The plaintiffs brought a motion seeking the following:

(a) AMENDMENT OF STATEMENT OF CLAIM

[ 2 ] The draft amended statement of claim presented on the motion requires further changes beyond those presented today. That portion of this motion is therefore adjourned to permit the plaintiffs to present the final version for approval.

(b) DISCOVERY PLAN

[ 3 ] The historical acrimony between the parties has interfered with their ability to agree upon a discovery plan. Rule 29.1 obligates the parties to agree upon such a plan. The ability of a party to bring a motion every time a disagreement arises in the creation of a discovery plan undermines the obligation of the parties under this rule. Except in exceptional circumstances, that obligation should remain on the parties and result in the dismissal of such a motion. Failing agreement upon a discovery plan, the parties are required to work through discovery issues as they arise as was the case prior to this rule.

[ 4 ] With reluctance and as an exception, this Court will order the discovery plan. I do so for the following reasons.

[ 5 ] This action commenced in November, 2001. In its decision herein dated September 30, 2011, the court was critical of the plaintiffs’ failure to bring this action on to trial and expressed the need for a trial of this claim and the counterclaim. Examinations for discovery have not commenced almost one year later. The acrimony level between the parties has carried over between counsel. Most prior orders have been appealed resulting in further delay.

[ 6 ] Accordingly, the following discovery plan is ordered:

[ 7 ] The examination for discovery of the plaintiffs by the defendants will occur in a boardroom at the Days Inn Hotel located on Rideau and Nelson streets in the City of Ottawa. Such examinations shall not exceed three consecutive days.

[ 8 ] The defendants have the right of examination for discovery of each plaintiff. The first plaintiff representative to be examined by the defendants shall be Rick Morris. Whether the discovery of other plaintiffs is a practical necessity or unnecessary as argued by the plaintiffs, may be dealt with later.

[ 9 ] The plaintiffs’ examination of the defendants shall occur at the offices of Cornell Cantana in Ottawa. Such examination of the defendants shall not exceed two days in length. Mr. C.A. Burdet agrees to be examined personally on behalf of all defendants. His answers on examination shall be binding upon all defendants.

[ 10 ] Examinations for discovery herein are to be completed by October 16, 2012. Dates of such examinations are to be agreed upon and not unilaterally selected by the examining party.

[ 11 ] Any motions regarding such examinations for discovery, including any re-attendance to complete discovery, must all be completed no later than December 16, 2012.

[ 12 ] This decision imposing a discovery plan should not be considered as an authority under rule 29.1 for the making of such an order.

[ 13 ] Although not part of a discovery plan, this Court relies upon its inherent jurisdiction to regulate actions before this Court and orders that the claim and counterclaim must be set down for trial no later than December 29, 2012, failing which such claim or counterclaim shall be dismissed.

(c) INSPECTION

[ 14 ] Pursuant to rule 32.01, the plaintiffs are entitled to engage an expert to conduct a physical examination of the basement units, 1 to 18, of Carleton Condominium 396 as to municipal by-law contraventions within those units and/or changes of use therein during the period January 1, 1998 until April 2, 2002. That authority includes the right of such expert to enter into, measure, observe and photograph such units.

[ 15 ] As counsel for the defendants, Mr. C.A. Burdet shall obtain any necessary consent from anyone in possession of any such unit(s) and arrange for and provide access required by the plaintiffs’ expert to carry out the inspection of these units during one day.

[ 16 ] Such inspection must be completed by September 14, 2012. Counsel for the defendants must by August 10, 2012, provide the plaintiffs with five days during the month of August and an additional five days during the month of September, 2012 when all of the units will be available on the same date for inspection. The plaintiffs must by August 15, 2012 select and notify the defendants which date its expert will carry out the inspection.

[ 17 ] The defendant has presented no motion to inspect the units on levels 2 and 3 of CCC 396. The wish to inspect those units does not address, nor disqualify, the appropriateness of the inspection sought by the plaintiffs and the liberal interpretation by the courts of rule 32. The expiration of a limitation period as to a cause of action, does not limit the right of inspection under rule 32 in an action commenced within the limitation period.

[ 18 ] There shall be no costs award on this motion. An award of costs would reward the parties for their failure to fulfill their obligation under rule 29.1 to agree upon a discovery plan.

Kane J.

Date: August 1, 2012

ONTARIO SUPERIOR COURT OF JUSTICE RE: PATRICK DEWAN, DOMICILE DEVELOPMENTS INC., 1436984 ONTARIO LTD., AMIRA GABRIEL, 1496055 ONTARIO INC., 117490 CANADA LTD., and the ESTATE OF SHEILA EBERTS Plaintiffs AND CLAUDE ALAIN BURDET, IN TRUST Defendant BEFORE: Kane J. ENDORSEMENT Kane J.

Released: August 1, 2012