ONTARIO

SUPERIOR COURT OF JUSTICE

GUELPH COURT FILE NO.: 866/08
DATE: 20121220

B E T W E E N:

Urbacon Building Groups Corp.

Plaintiff

M. Drudi , for the Plaintiff

• and -

Guelph (City)

Respondent

B. Decaire and A. Schmuck, for the Respondent

Lien Claimants

F. Maio and R. Kennaley

HEARD: December 18, 2012

RULING RE: PARTICULARS

MacKenzie J.

[ 1 ] In the course of a Trial Management Conference held December 18, 2012, a question respecting particularity of information disclosed by the City of Guelph (Guelph) arose at the instance of counsel for one of the sub-trade lien claimants.

[ 2 ] Essentially, the concern expressed was that Guelph’s position on the alleged deficiencies and delays in its defence and counter-claim to Urbacon Building Groups Corp.’s ( Urbacon) claims was lacking in specificity as the same pertained to the several sub-trades’ acts or omissions giving rise to, or contributing to, such deficiencies or delays.

[ 3 ] The sub-trades’ position is that it is appropriate for them to be engaged in the liability issues phase of the trial at least respecting to the alleged deficiencies and delays. A primary reason for such engagement is to obviate any inconsistent findings of fact that might arise on these issues if a separate trial were held on the sub-trades’ involvement in the alleged deficiencies and delays.

[ 4 ] Guelph’s position on this point is that it has made full disclosure in the course of its discovery obligations dating back to 2009 and the sub-trades have not seen fit to move for particulars in the interval.

[ 5 ] Corbett, J. of this Court has been closely involved in Case Supervision of the proceeding, making various orders relating to pre-trial issues since 2009. His most recent involvement relates to a motion and cross-motion re: undertakings and refusals heard by him on/about December 13, 2012.

[ 6 ] Although he has not disposed of the refusals, I have been supplied with a draft order dealing with the undertakings. Paragraph 8 of the draft order addresses the issues of alleged deficiencies and delays, as follows:

[8] Question 3594, page 869: the City shall provide its claim for costs associated with all deficiencies or costs to complete incomplete work, broken down by deficiency, cross-referenced to its damages documents. In answering this question, the City may aggregate non-material items (for example, there need not be a costs itemization for each individual painting touch-up. A single figure for all the painting touch-ups may be provided. Urbacon may request a further breakdown of aggregate items, if it wishes, and these shall be addressed on a case-by-case basis. The degree of generalization in claims and accounting can always be a matter of conflict. I do not accept, however, that the City may simply provide all of its accounting records concerning the cost to complete the project, and then leave it to Urbacon and the sub-trades to allocate the costs. These are the City’s records , generated during a period when everyone knew there was litigation concerning the cost to complete this project. The information should be provided in a coherent manner consistent with the general presentation of construction disputes. (Emphasis added)

[ 7 ] It may be considered trite law but in the present context, it bears restating:

“Particulars define the issues, enable preparation for trial, prevent surprise at trial and facilitate the hearing”;

Obonsawin v. Canada , 2001 28431 (ON SC) , [2001] O.J. No 369, (SCJ), at para 33;

and

Areva NP GmbH v. A.E.C. Ltd ., [2009] O.J. No 4372 (SCJ), at paras 39 – 40

[ 8 ] Counsel for Guelph has indicated that it will be ‘flexible’ in addressing the above concerns of the sub-trades. To assist Guelph in discharging its ‘undertaking’ of flexibility. I order it to supply to the sub-trades information in a coherent manner consistent with the general presentation of construction disputes detailing the alleged deficiencies and delays, regardless of whether any costs have been incurred by Guelph to date. In sum, Guelph shall furnish such particulars in this regard to the sub-trades, in aid and furtherance of the above-noted case extracts. These particulars shall be furnished in writing to the sub-trades in question on or before January 14, 2013.

MacKenzie J.

Released: December 20, 2012

GUELPH COURT FILE NO.: 866/08
DATE: 20121220

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Urbacon Building Groups Corp. Plaintiff - and – Guelph (City) Respondent Lien Claimants RULING RE: PARTICULARS MacKenzie J.

Released: December 20, 2012