ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ravenda Homes Ltd.
Michael G. Emery, for the Plaintiff and the Defendants by the Counterclaim
Plaintiff
- and -
1372708 Ontario Inc. and Vaughn Gibbons
Robert C. Harason, for the Defendants and the Plaintiff by Counterclaim
Defendants
A N D B E T W E E N:
1372708 Ontario Inc.
Plaintiff by Counterclaim
-and-
Ravenda Homes Ltd. and John Ravenda
Defendants by the Counterclaim
HEARD: February 10, 2012 March 2, 2012 July 3, 2012 July 4, 2012
The Honourable Justice C. A. Tucker
CORRECTED REASONS FOR DECISION
Corrected decision: The text of the original reasons for decision was corrected, on consent, on October 29, 2012, and the description of the correction is appended.
[ 1 ] The defendants 1372708 Ontario Inc. (“137”) and Vaughn Gibbons seek the following relief:
An order dismissing the action with costs for failure to comply with the order of Justice Henderson dated October 20, 2010;
In the alternative, an order requiring the plaintiff to deliver further documents and/or information to comply with Justice Henderson’s order;
An order for a further and better affidavit of documents to be provided by the plaintiff and more particulars about claims asserted in proceedings.
In the further alternative, an order adjourning the motion and requiring the plaintiff or its accountant to re-attend further cross-examinations; and
An order for costs.
[ 2 ] The plaintiff seeks the following relief in addition to resisting the claims of the defendants:
- That an order be made updating the Discovery Plan established by Justice Henderson’s order.
[ 3 ] In this regard it was agreed that subsequent to the issuance of my decision on the defendants’ motions, and if I decide to update the Discovery Plan, I would allow counsel to make written submissions as to their specific proposals as to timing and order of discoveries of the parties.
[ 4 ] These motions took four full days to argue. Six motion records including the original motion and five supplementary motions were filed by the plaintiff. Supplementary motion number five itself is five volumes long. The defendants filed responding materials as well as its own motion. The materials fill two banker’s boxes. Factums were filed. There were cross-examinations transcripts filed of the principal of the plaintiff, John Ravenda, his accountant Darren Chapelle, the principal of the defendant 137 and his hired accountant Mr. Rosen. All of the cross-examinations were lengthy and at times acrimonious to the point where I would describe the tenor of the same to be more that of interrogations than examinations. The transcripts of such examinations are over 1,000 pages long. A book of exhibits from the examination of Mr. Gibbons and Mr. Ravenda were filed, which were over two inches thick in total. Lengthy and comprehensive casebooks were filed by both parties.
[ 5 ] I listened carefully and with incredulousness to the arguments of the parties which in reality centre in one sentence of the decision of Mr. Justice Henderson which reads as follows: “Therefore, it is only ordered that Ravenda produce a profit and loss statement for each of the houses that Ravenda constructed on the three properties namely: the Harvest Estate Phase 3 subdivision, the Drapers Creek subdivision, and the Towpath Village subdivision”. This very sentence has been the subject of interpretation on at least two prior motions, one of which was heard by Madam Justice Maddalena on February 4, 2011 and a further motion heard by Mr. Justice Lococo on May 10, 12 & 27, 2011. Both decisions were appealed. The original decision of Mr. Justice Henderson was appealed, although later abandoned. And now what I would characterize as the same issue of interpretation is before me. When I inquired of counsel why Justice Henderson was not asked to interpret his own decision rather than in asking three other judges to do so, I was told the reason was that his “decision was so clear”.
[ 6 ] In order to understand all my reasons which follow in this decision, I need to briefly review an outline of this litigation. Although there have been motions on this lawsuit and its related Construction Lien actions ( Ravenda Homes Ltd v 1372708 Ontario Inc, [2007] O.J. No. 1503 ) brought before almost every judge in the whole Central South (and almost every decision appealed), there have yet to be discoveries in this action. In addition to the material on this motion there are at least six other banker’s boxes of material on these matters filed with the court. There have been numerous demands for particulars and several amendments to claims so that there is now an amended amended amended Statement of Defence.
[ 7 ] I acknowledge that the claim of Ravenda is for damages in the $5,000,000 range and, as such, the matter needs to be dealt with seriously and carefully. However, in essence, the entire law suit centres in the alleged breach of one December 2005 option agreement. This document only consists of a few pages.
[ 8 ] The defendants deny the breach and the agreement. This lawsuit is not complex in terms of the law or documentation in terms of liability. This leaves the court to question the endless interlocutory motions and appeals, and cross-examinations held, without first discovering the very person alleged to have signed the document or conducting any discoveries at all.
[ 9 ] This is not litigation out of control, this is litigation tsunami.
[ 10 ] I cannot begin to estimate the costs of this action. I find that focus of this lawsuit has been completely lost and that this lawsuit needs to be brought into order. We must return to what should be the focus of this litigation: a final result for the litigants in a timely cost effective manner.
[ 11 ] Accordingly, I find it is time for the court to use its inherent discretion to take control of its own process and bring some common sense back into this litigation.
[ 12 ] I deal firstly with the motions of the plaintiff.
Motion for Summary Judgment
[ 13 ] The plaintiff argues that Justice Henderson’s decision was clear and unequivocal. I agree. He ordered the profit and loss statements, which I find could only be the same type of profit and loss statement as was contained in the material before him, to be produced. I find that such profit and loss statements have been produced and, accordingly, the summary judgment motion is dismissed. The plaintiff has produced the documents that were available and ordered, and accordingly Justice Henderson’s order has been complied with.
Further Productions/Cross-examinations/Affidavits of Documents
[ 14 ] I will not order further profit and loss statements to be “created”. The relevance of this information is tenuous at this stage in the proceedings and may disappear completely once discoveries are held. There has been no damages report prepared by the plaintiff or its expert. In fact, the plaintiff has not even retained its expert. At this point we have no idea if there is even a cause of action or liability. There is no justifiable reason to expend thousands more dollars pursuing the creation and production of information which may not be at all relevant and may not be valid in the circumstances. The information about similar type subdivisions done by the same builder may or may not form the basis of the plaintiff’s proffer of damages. The battle of the experts at trial is years away. The parties need to get on with discoveries. For the same reasons, there shall be no more disclosure ordered, no more productions, no more particulars ordered, nor any more cross-examinations or further affidavits of document ordered to be produced. There is sufficient material already for the parties to conduct discoveries effectively.
Amended Discovery Order
[ 15 ] I will set a schedule for the litigation on which, as noted above, I will receive input from the parties. This shall be done by written submissions of five pages or less. These must be received from both parties by October 31, 2012 failing which I shall set the schedule without input from the parties.
Further Orders
[ 16 ] I now turn to what I describe as the court taking control of its process. I order as follows:
(i) There will be no costs of these motions or the cross-motion. No party should be rewarded for what I find to be unnecessarily prolonging litigation when agreement following discussion between the parties should have resolved these issues involved here and the many other interlocutory motions brought by the parties.
(ii) Any interpretation of my decision will be done by me.
(iii) Any further motions or applications in this matter will require leave of the court prior to being brought.
(iv) The parties shall request within 30 days of today that the Regional Senior Justice appoint a trial management judge for this lawsuit and the related Construction Lien actions noted above.
(v) I shall receive written acknowledgements from all parties that they have been given a copy of my decision and that they have read it within 30 days of the release of my decision.
Tucker J.
Released: September 27, 2012
APPENDED ERRATUM
Corrections made:
October 29, 2012: (1) The word “defendants” replaced “plaintiff” in line two of para. [4].
(2) In paras. [6] and[16] (iv) the reference related to construction lien action s has been pluralized.
COURT FILE NO.: 5234/06
DATE: 2012-09-27
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Ravenda Homes Ltd. Plaintiff - and - 1372708 Ontario Inc. and Vaughan Gibbons Defendants A N D B E T W E E N: 1372708 Ontario Inc. Plaintiff by Counterclaim - and - Ravenda Homes Ltd. and John Ravenda Defendants by Counterclaim CORRECTED REASONS FOR DECISION Tucker J.
Released: September 27, 2012