2013 ONSC 5393

Endorsement re: motion heard August 19/13 in the matter of: DCM Erectors Inc. v. The Guarantee Company of North America (Court File No.: 13-CV-473616) and DCM Erectors Inc. v. City of Ottawa and Horseshoe Hill Construction Inc. (Court File No.: 12-CV-459244)

Motion heard by: Master Abrams

In attendance:
J. MacLellan, for The Gurarantee Company of North America

D. Loucks, for DCM Erectors Inc.

A. Sarabura, for Horseshoe Hill Construction Inc.

Absent but consenting: The City of Ottawa

ENDORSEMENT

The Guarantee Company of North America’s (“GCNA’s”) motion--brought on consent of the City of Ottawa and Horseshoe Hill Construction Inc. (“HHCI”)--is granted. I accept that the two actions that the moving party wishes to have tried together, or one after the other, arise out of the same series of transactions and have questions of law and fact in common (R. 6.01(1)).

GCNA suggests, in its factum, points of intersection between the two claims at issue. After consideration of the submissions made and evidence adduced, I accept, as apt, the suggested points of intersection. Specifically and without limitation:

• The two actions relate to claims by DCM Erectors Inc. (“DCM”) in respect of the Strandherd Armstrong Bridge project;

• The relief sought by DCM, in both actions, arises out of DCM’s subcontract with ConCreate and the work DCM provided to ConCreate in respect of the Bridge project;

• The two actions invoke a consideration of dealings among DCM, the City of Ottawa, ConCreate, HHCI and GCNA;

• The two actions relate to DCM’s failed negotiations with HHCI and GCNA;

• The two actions have, in common, the questions of DCM’s obligations and the intended scope of its work under its subcontract with ConCreate; the question of the value of the work performed by DCM; and, the question of whether and/or to what extent DCM is entitled to additional payments under the subcontract;

• The two actions, both, invoke the legal issues of DCM’s rights under its subcontract; the liability for the assembly jigs; and the question of whether DCM was obligated, under the payment bond, to complete the remaining balance of work under the subcontract, in accordance with the terms and conditions of the subcontract.

The moving party and HHCI argue that there will be significant overlap of witnesses in the two actions: i.e. evidence will be required from DCM, the City of Ottawa, HHCI, ConCreate and GCNA. I agree. There will also be, necessarily, significant overlap in documentary production given that the claims arise out of the Strandherd Armstrong Bridge project (see, in this regard, paragraph 28 of G.L. Sonny Ingram’s August 8/13 affidavit, in which details of the overlap are fairly set out).

The moving party and HHCI posit, and I agree, that to permit the two actions to proceed separately where, as here, the background facts, the claims asserted and the relationships among the various parties are “inextricably interwoven” is to risk inconsistent findings and/or results. They say that common production and discovery will enhance the efficiency of the proceedings. With these submissions, too, I agree.

There is one argument raised by DCM that, at first blush, has persuasive appeal. That is, the two actions are at different stages and DCM does not want one to slow the other. Examinations for discovery have not yet taken place in either action and, while they are now scheduled for October/13, counsel for GCNA suggests that, if they need to be delayed (and he does not know, now, whether they need to be), they need not be delayed beyond the end of November/13. That being so, the potential delay is not appreciable and does not give me pause.

For all of these reasons, the actions bearing court file numbers 12-CV-459244 and 13-CV-473616 will be tried together or one after the other, as the trial judge may direct, and will be subject to common documentary disclosure and production and common discoveries. That said, and to give DCM comfort, I am directing that the parties negotiate and settle on a timetable for the two actions by no later than September 13/13, failing which I may be asked to impose one.

If the parties are unable to agree in respect of the costs of this motion, I may be spoken to.

August 20/13 __________________________