COURT FILE NO.: 00-CV-197311CM
DATE: 20120918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EPSTEIN EQUESTRIAN ENTERPRISES INC. Plaintiff – and – FRANK JONKMAN AND SONS LIMITED and CYRO CANADA INC. Defendants
P. David McCutcheon and Jeremy C. Millard , for the Plaintiff
Paul Tushinski and Albert Wallrap , for the Defendant Frank Jonkman and Sons Limited James Regan and Angelo Sciacco, for the Defendant Cyro Canada Inc.
HEARD: September 10, 2012
t. Mcewen j.
ruling
[ 1 ] This trial commenced before me on Monday, September 10, 2012. At the beginning of the trial, two motions were brought as follows:
The Defendant Frank Jonkman and Sons Limited (“Frank Jonkman”), brought a motion which was supported by the Defendant Cyro Canada Inc. (“Cyro”), to try the issues of liability and damages together, notwithstanding the order of Sanderson J. dated September 21, 2010, ordering that the trial be bifurcated with the issue of liability to be tried first; and
The Plaintiff Epstein Equestrian Enterprises Inc. (“Epstein Equestrian”), brought a motion to strike out the jury notice delivered by Cyro.
Bifurcation issue
[ 2 ] All of the parties agree that I have the inherent jurisdiction as the trial judge to set aside the order of Sanderson J. concerning the issue of bifurcation. I agree. At the time Sanderson J. made her order it should be noted that no one opposed the order sought. Although there is not an exact record of what transpired that day, it appears as though Cyro sought the order and at the very least, Epstein Equestrian did not oppose. It does not appear as though Frank Jonkman attended. At the time his lawyer was attempting to get off of the record.
[ 3 ] Since the time Sanderson J. made her order the file has evolved. New counsel has taken over the matter for Frank Jonkman, more time has passed in a case that is already long outstanding, and the case is now ready for trial.
[ 4 ] I agree with Frank Jonkman and Cyro that it is far preferable to have all issues in dispute resolved at one trial. This is particularly so in this case where the testimony concerning liability and damages will overlap. I am also mindful of s. 138 of the Courts of Justice Act , R.S.O., 1990, c.C.43, that states that “As far as possible, multiplicity of legal proceedings shall be avoided”.
[ 5 ] In my view, this case is also very similar to the case that was before D. Brown J. in MTCC No. 831 v. Khan , 2012 ONSC 5037 , wherein he concluded that the parties in these circumstances cannot be compelled to proceed on a bifurcated basis. As noted above, however, it is also my view that I have jurisdiction in any event, as the trial judge, to control the trial process.
[ 6 ] Epstein Equestrian did not object to the logic of the Defendants’ position but, understandably was concerned that it now had to call its evidence on damages and did not know whether it could reasonably do so.
[ 7 ] After discussion with counsel, however, it became apparent that this was a trial management issue that could be overcome by calling witnesses out of order and with some brief adjournments if necessary. These solutions were proposed by defence counsel and seem to be reasonable.
[ 8 ] Therefore, in order to bring this long-outstanding matter to conclusion, it is my view that multiplicity of legal proceedings should be avoided by trying all issues at this time.
[ 9 ] Accordingly, I order that the aforementioned order of Sanderson J. be set aside and the matter proceed to trial on all issues. Of course, as noted above, Epstein Equestrian will be afforded reasonable leeway with respect to the introduction of evidence on the issue of damages.
the jury notice
[ 10 ] Epstein Equestrian seeks an order striking out the Jury Notice on the basis that the issues in the action are simply too complex for a jury.
[ 11 ] The decision to set aside the Jury Notice is a significant one. As Doherty J.A. stated in Graham v. Rourke (1990), 75 O.R. (2d) 622 at 625:
If a litigant is entitled to trial by jury, that right is a substantive one which should not be interfered with without just cause: King v. Colonial Homes Ltd ., [1956] S.C.R. 528, 4 D.L.R. (2d) 561, at p. 533 S.C.R. When a trial judge is asked to discharge a jury, she or he must decide whether justice to the parties will be better served by the discharge or retention of the jury. The moving party bears the burden of persuasion and must be able to point to features in the legal or factual issues to be resolved, in the evidence, or the conduct of the trial, which merit the discharge of the jury. Majcenic v. Natale , [1968] 1 O.R. 189, 66 D.L.R. (2d) 50 (C.A.), at pp. 201-02 O.R. A trial judge faced with a motion to discharge a jury must exercise a judicial discretion.
[ 12 ] I am also aware of the fact that great care must be exercised when the motion is brought at the commencement of trial before opening statements have been delivered, and evidence called by the parties. Furthermore, I am mindful that the fact it might be difficult to explain the law to the jury cannot be considered as a factor to strike the Jury Notice: Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 665 (Ont. C.A.)
[ 13 ] In my view, however, this is one of those rare cases in which the Jury Notice ought to be struck at the commencement of trial given the combination of the complex factual, evidentiary and legal issues for the following reasons:
- The case itself is factually complex. It arises out of a claim by Epstein Equestrian with respect to alleged damages arising from the alleged defective installation of a solar roofing system installed at its equestrian centre in King City, Ontario. The solar roofing system involved several integrated components, including a skylight system, an operable skylight shutter system and a dust control system. The integrated system, amongst other things, was to provide the following benefits:
(a) solar gain in the riding arena so as to eliminate the need for a supplementary heating system;
(b) retain excess solar gain, even in winter, to heat not only the riding area but also the attached horse barn;
(c) provide light transmittance to maximize day-lighting without causing solar glare;
(d) provide thermal resistance of a value of no less than R8 when the insulated panels of the shutter system were closed;
(e) with respect to the skylight shutter system to provide automatic operation by means of various sensors and measuring devices;
(f) to provide all around performance on a low-maintenance basis; and
(g) to provide a waterproof and durable system which would take into account and accommodate the effect of snow.
The subject matter of the lawsuit has a long history with Epstein Equestrian and Frank Jonkman discussing the project from 1993 to 1994 before construction took place in 1994.
Epstein Equestrian alleges that since the construction, which is now approximately 18 years of age, the solar roofing system has not operated properly, or at all as anticipated.
As a result of the aforementioned, alleged failure of the solar roofing system, Epstein Equestrian issued its notice of action in September of 2000. The action was commenced against the Defendant Frank Jonkman and Cyro. With respect to Frank Jonkman, it is alleged by Epstein Equestrian that Frank Jonkman, by way of a contract dated March 1, 1994, agreed to design, supply, fabricate, install and provide all necessary work ancillary and related to the design, supply, fabrication and installation of the solar roofing system. With respect to Cyro, it is alleged by Epstein Equestrian that Cyro failed to properly manufacture and provide proper Cyro Glazing Sheets for the solar roofing system. Frank Jonkman and Cyro deny any liability.
Ultimately, Cyro commenced third party proceedings against Clemmensen and Associates Limited (“Clemmensen”), the project manager for Epstein Equestrian and Allen Kani Associates (“Allen Kani”), an engineering firm retained by Epstein Equestrian.
The allegations made by Epstein Equestrian against Frank Jonkman are very complex. They are framed in negligence, negligent misrepresentation, breach of contract, breach of implied terms and implied warranties, and breach of the Sale of Goods Act . Epstein Equestrian has claimed against Cyro based on allegations of negligence, negligent misrepresentation, breach of a collateral contract, and breach of warranty. This will necessarily involve complicated analysis with respect to the interaction between the various causes of action, particularly negligence and contract. I am very concerned that a jury would not be able to properly apply the multiple legal issues that I would ultimately set out in my charge.
Both Cyro and Frank Jonkman have cross-claimed against each other as well as alleging that Epstein Equestrian was contributorily negligent with respect to the damages it has allegedly suffered.
The third party claims by Cyro against Clemmensen and Allen Kani make a number of allegations of negligence.
Any analysis of the alleged deficiencies requires a complicated and in-depth analysis of the skylight system, skylight shutter system and dust control system. This has resulted in the parties collectively retaining seven experts and obtaining 20 experts’ reports. I have had the opportunity to review the reports and it is unquestionable that they raise very complicated construction and scientific issues. I agree with the submissions of counsel for Epstein Equestrian that the trier of fact with need to grapple with, amongst other things, issues such angles of incidence, transmissivity, and thermo expansion in attempting to determine fault for the failure of the roof systems amongst many other complicated issues. In addition to the experts’ reports, there are over five hundred documents that are being tendered at the hearing of this matter. The more important documents involve the contract between Epstein Equestrian and Frank Jonkman which involves several pages of technical design specifications, architectural and engineering drawings, material specification sheets and promotional material as well as reports from an energy-modelling software program. It is also worth noting that in its pleading, Epstein Equestrian alleges that it made 14 separate performance requirements known to Frank Jonkman; that Frank Jonkman made seven representations to Epstein Equestrian; that the contract included five implied terms and warranties; and there were 13 breaches of the contract, implied warranty and Sales of Goods Act .
The aforementioned expert evidence will include the following:
(a) Report of Didier Thevenard, PH.D., P.Eng. (on behalf of Cyro), concerning (i) the performance of the Arena, (ii) the sufficiency of the work by Kani, and (iii) the appropriateness of the solar transmission values provided by Cyro for its acrylic glazing sheets;
(b) Report of Lawrence E. Glazer, B.E.S., B. Arch., O.A.A., M.R.A.I.C. (on behalf of Cyro), concerning the applicability of the NRC National Farm Building Code of Canada and the Ontario Building Code to the Arena;
(c) A supplementary report immediately above, on the same topics;
(d) Report of Geoffrey V. Francis, P.Eng. (on behalf of Cyro), concerning the failure of the Arena, solar energy building design, and project management;
(e) A supplementary report to the report immediately above, concerning the architectural drawings used for the Arena;
(f) Report of Robert G. Keen, P.Eng., M.B.A. (on behalf of Epstein Equestrian), concerning whether Clemmensen met the standard for project management and construction management in the construction industry, and if not, whether that caused the plaintiff’s loss;
(g) Report of K.D Pressnail, Ph.D. and Russell Richman, Ph.D., P.Eng. (on behalf of Epstein Equestrian), concerning the performance of the acrylic glazing sheets supplied by Cyro in the Arena, and the effects of the solar transmittance values of the acrylic glazing sheets being less than their published values;
(h) Report of Michael a. Learmonth, B.A.Sc., M.B.A., M.Eng., J.D., LL.B., C.F.E.I., P.Eng and Ron Koerth, B.a. Sc., M.B.A., C.F.E.I., C.V.F.I., P.Eng (on behalf of Epstein Equestrian), concerning among other things, the specification of the heating ventilation, and air conditioning for the Arena, the design of the Arena, and an analysis of the Enerpass energy-modelling software program; and
(i) Report of Robert G. Keen, P. Eng., M.B.A. (on behalf of Epstein Equestrian) in rebuttal to the report immediately above.
To further complicate this action, Epstein Equestrian and the third parties have entered into a Pierringer Agreement. As a result the third party action is not proceeding at this time. At the end of the trial though, apportionment with respect to liability will have to be made not only with respect to Epstein Equestrian, Frank Jonkman and Cyro, but also with respect to Clemmensen and Allen Kani. All of this would have to be explained to and understood by the jury.
The issue of damages is also complex. Firstly, Epstein Equestrian has amended it prayer for relief from $600,000 to $3.8 million. Epstein Equestrian alleges that it has suffered and continues to suffer nine different types of damages that include damages it has continued to incur for the past 18 years. These include, but are not limited to: the cost of installation and operation of a supplementary electric heating system, installing a new barn ventilation system, completely redesigning and reinstalling a partial roof on the riding arena, investigation, testing and consulting costs, the costs of future remedial measures, and the cost of transporting 40 horses to and/from Florida for several years.
Frank Jonkman and Cyro have also raised issues of causation, foreseeability and mitigation.
Trial management with a jury would be very complex. It is anticipated that in excess of 20 witnesses will testify at the trial, including seven experts. The trial will be lengthy. The estimate of the length of trial on the issue of liability only was 19 trial days. Now that damages will also be tried, I anticipate that the trial will take anywhere from four to five weeks, and perhaps longer, given the fact that given my order concerning bifurcation witnesses will likely be called out of order and some adjournments may be necessary. Both factors increase the complexity of the hearing of the action.
Based on what I have outlined above, I have calculated that in excess of 20 questions would have to be presented to a jury touching upon all of the issues. These would include complicated questions on both liability and damages. I asked defence counsel as to whether they had prepared draft questions that I could review to assist me as to how I could approach the jury with respect to the complicated issues noted above. They had not. I am not being critical but this leads me to the conclusion that the Defendants have not adequately considered the complicated nature of this case.
[ 14 ] In my view, given the above, I have concluded that justice to the parties would be better served by striking the Jury Notice. A judge is simply better able to render justice in a case such as this given the level of legal training and experience required to deal with the myriad of complex issues.
[ 15 ] Counsel for Frank Jonkman and Cyro urged that I take “wait and see approach” and that perhaps the evidence would not be as complicated as stated by Epstein Equestrian. I disagree. While I agree that typically the wait and see approach is preferable it is my view that this case is an exception to that general rule. As in Cowles v. Balac [2004] O.J. No. 4534 ; affirmed 83 O.R. (3d) 660 (Ont. C.A.), the complexities I have outlined above are the reality at this time. They are not mere possibilities.
[ 16 ] Neither Frank Jonkman nor Cyro suggested that the problems with complexity could be resolved by splitting the case. They in fact advocated that both damages and liability be tried at the same time which heightened the complexity of the matter.
[ 17 ] Accordingly, for the reasons above, the Jury Notice shall be struck.
T. McEwen J.
Released: September 18, 2012
COURT FILE NO.: 00-CV-197311CM
DATE: 20120918
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
EPSTEIN EQUESTRIAN ENTERPRISES INC. Plaintiff – and – FRANK JONKMAN AND SONS LIMITED and CYRO CANADA INC. Defendants
RULING
T. McEwen J.
Released: September 18, 2012