SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 07-CV-38515
DATE: March 12, 2013
RE: The Corporation of the Municipality of Greenstone, Plaintiff
(Moving Party)
AND:
Marshall Macklin Monaghan Limited, Defendant
(Responding Party)
BEFORE: Master Pierre E. Roger
COUNSEL: Heather Williams/S. Sviergula, for the Plaintiff (Moving Party)
Peter J. Mitchell, for the Defendant (Responding Party)
Ontario Clean Water Agency (Third Party) – did not attend
Trow Consulting Engineers Ltd. (Third Party) – did not attend
HEARD: January 29, 2013
ENDORSEMENT
- This motion seeks essentially two relief: (1) an order pursuant to Rule 37.14 of the Rules of Civil Procedure setting aside the order of the registrar dated March 13, 2012, dismissing this action for delay and amending the timetable; and, (2) an order granting leave to the Plaintiff to amend the statement of claim in the form attached at Tab 10 (D) of the amended motion record. Ms. Williams and her firm are not the Plaintiff’s original lawyers, they were retained as agent to address the dismissal and argue this motion.
Factual Overview
This is an action for damages currently in the amount of $3.5 million for breach of contract and negligence. It is the Plaintiff’s intention to amend the statement of claim to increase the damages to $6.5 million. The action arises out of a 2003 contract between the Plaintiff and Defendant. The Defendant was retained to act as prime consultant: to provide design, costs estimation, tender preparation, contract administration, construction supervision services and management services to the Plaintiff with respect to sewer collection and treatment system upgrades in the town of Geraldton, Ontario – the Geraldton Sewer System Ugrades (“the project”).
The Defendant worked on the contract for several years but following alleged problems the Plaintiff terminated the contract in July 2008. The Plaintiff retained another engineering firm, C.C. Tatham & Associates Ltd. to complete the project and conduct a peer review of the Defendant’s work.
In June 2006, counsel for the Plaintiff put the Defendant on notice of the Plaintiff’s intention to claim damages.
This action was commenced by notice of action dated June 20, 2007. A statement of claim was issued on July 20, 2007. A statement of defence was served on February 13, 2008.
Two third party claims were issued. One on May 1, 2008 and the other on November 5, 2008. Those claims were defended on August 13, 2008 and January 9, 2009.
The Tatham peer review took almost two years to complete with a report delivered May 26, 2010. It provides Tatham’s opinion on technical design and construction deficiencies of the Defendant on the project and recommends remedial work. Certain remedial work was conducted in 2010 and into 2011, with the project certified completed in March 2011.
The Plaintiff’s position is that it started this action in 2007 to avoid any limitation issue. It explains that little happened in 2007 as the Defendant was still working on the project.
In 2008, two third parties were added by third party claims and pleadings closed about January 2009.
In June 2008, counsel for the Plaintiff wrote regarding the selection of a mediator and suggested that a case conference be scheduled to establish a timeline considering the complexities of this case. The parties agreed on a mediator and the required notice was sent. This is also when the professional services of the Defendant were terminated by the Plaintiff and when the replacement firm, Tatham, was hired.
In August 2008 the Plaintiff requested the return of its file from the Defendant. The parties disagree over what was requested, what was required to be produced and when but, for purposes of this motion, suffice to say that the Defendant’s file was requested starting about August 2008, follow up requests were made in October and November 2008 with only a portion of the file delivered by the Defendant in December 2008.
The previously scheduled case conference occurred on October 1, 2008. At this case conference, the mediation was deferred, another third party claim was to be issued shortly, existing parties were required to serve their affidavit of documents by March 31, 2009, and a further case conference was scheduled for April 1, 2009.
None of the parties delivered their affidavit of documents by March 2009. The Plaintiff’s explanation is that in March 2009 their counsel wrote to request missing documents from the Defendant.
A further case conference occurred as scheduled on April 1, 2009. No order was made but a new date for a follow-up case conference was scheduled in September 2009. The Plaintiff’s explanation, provided by their lawyer, is that the parties were still in the process of preparing their affidavit of documents.
In May 2009, Plaintiff’s counsel wrote requesting the Defendant to provide their complete file. The Plaintiff now alleges that these were required for the peer review and that the Defendant’s failure to quickly produce a complete copy of its file slowed the litigation of this action. The Defendant disputes the contractual requirement for production of its file considering the factual circumstances of the Defendant’s limited but continued role on the project. As well, the Defendant disputes whether or not their complete file was in fact required by the Plaintiff for either the peer review or timely litigation of this action. The Defendant provided very detailed explanation by affidavit outlining their position on why the documents were not provided earlier and why in their opinion this should not have delayed the action, peer review and remedial work.
In September 2009 the Plaintiff received substantial productions from one of the third parties (1,636 pages), which were reviewed with follow-up request for further productions.
Another case conference was held on October 15, 2009. A timeline was ordered, none of which was met by the Plaintiff. Much is made by the Defendant of the many instances of the Plaintiff not meeting any of the court timelines. However, in this instance, I note that the timeline was premised on the Plaintiff’s receiving the peer report by the end of the year (Tab W). As it was not received until the end of May 2010, much, if not all, of the timeline could not reasonably be met. The Defendant argues that the Plaintiff could nonetheless have proceeded with the action and provided a partial affidavit of documents.
On January 29, 2010, the Defendant provided to the Plaintiff a complete copy of the Defendant’s file (which had been requested earlier by the Plaintiff). It included six boxes of documents relating to the project, one DVD of emails sent and received, one DVD of the Defendant’s computer files, shop drawing registry, contractor red-line drawings and PDF files of revised as-built drawings.
The Defendant’s affidavit of documents was provided thereafter on April 1, 2010.
On May 27, 2010, the Tatham peer review was received and provided to the Defendant on July 16, 2010.
The explanation of counsel for the Plaintiff is that he did not believe that he could complete the Plaintiff’s affidavit of documents or conduct examinations for discovery prior to receiving the peer review as he saw it as necessary to define the issues relating to the Defendant’s work and deficiencies. Counsel for the Defendant disagrees and argues that discovery could have been conducted beforehand.
Remedial work identified in the Tatham report was conducted in 2010 into 2011 and Plaintiff’s counsel explains that he felt he could not effectively proceed with discovery until this remedial process ran its course as new documents and relevant information continued to evolve throughout this time. Again counsel for the Defendant disagrees.
A status notice was received by Plaintiff’s counsel on January 4, 2011. I note the importance and requirement, under the rules, that these documents are to be provided to clients. It appears that this did not happen on the Plaintiff’s side. Discussions followed between the lawyers and, as should happen in most cases, the status hearing proceeded on consent and in writing with an order made on March 24, 2011, that:
• Pleadings amended by Plaintiff by April 29th, 2011;
• Productions completed by all parties by June 30th, 2011;
• Examinations for discovery by all parties to be completed by October 31st, 2011;
• Mediation by all parties by January 31, 2012;
• Action set down for trial by Plaintiff by March 10th, 2012.
On May 16, 2011, the lawyer for the Plaintiff served a draft amended statement of claim on the lawyer for the Defendant. The lawyer for the Defendant then requested further particulars with respect to the proposed amendments and took the position that the proposed amendments were out of time.
Plaintiff’s counsel redrafted the amended statement of claim and a second draft was provided on July 4, 2011.
On July 28, 2011, counsel for the Plaintiff served the Plaintiff’s draft affidavit of documents with nine CDs of materials.
Subsequently, Plaintiff’s counsel indicates that he became progressively concerned with the limitation issue. My interpretation is that these concerns distracted him from attending more promptly to this matter. On December 9, 2011, he contacted his professional insurer who proceeded to investigate the matter.
He indicates that through inadvertence he did not insert the March 10, 2012 date, into his calendar with the result that the action was not set down in time and was dismissed by the registrar on March 13, 2012.
He was away for the March break but on March 20 he gave notice to opposing counsel that a motion would be brought and a notice of motion was served on March 26, 2012, with a motion date scheduled for May 24. The date was adjourned on a number of occasions (with nothing turning on this or at least nothing relating to these adjournments was argued before me) until it was argued on January 29, 2013.
As indicated, the Plaintiff explains that the initial delays stemmed from the peer review taking two years to complete and even after it was finished, the work on the project continued for nearly another year. Further, that the potential gravity of the position taken by the Defendant with respect to the limitation period prevented counsel for the Plaintiff from acting in as timely a manner. Additionally, that his workload throughout 2011, and particularly in the latter part of 2011, was heavy, which added to the stress of the situation and made it an even more difficult period for him.
The Plaintiff states, in affidavits, that it was always the Plaintiff’s intention to proceed with this action. This was challenged in cross-examination.
The Plaintiff argues that only thirteen days elapsed between the dismissal of this action and service of the notice of motion to set that dismissal aside and that the Defendant has been aware of this claim since, at the very latest, June 2007 (June 2006 at the earliest) and that documents have been preserved and factual circumstances investigated fully.
Regarding the amendments, the Plaintiff argues that they are particulars from the peer review. The Plaintiff states that they are detailed facts and allegations of negligence and breach of contract, that they represent greater particularization of the original allegations of negligence and breach of contract. Alternatively, the Plaintiff argues that if they are new facts or claims (which it says they are not), that they were not discoverable prior to the release of the peer review.
The Defendant argues that the proposed amendments are new causes of action discoverable before March 2010 or outside the limitation period. Regarding a delay claim, the Defendant states that the Plaintiff received notice of a delay claim by the project general contractor in January 2008 and settled that claim with the general contractor in December 2009. Regarding contract change orders, the Defendant states that these were issued by July 2008 such that the Plaintiff was aware of all change orders issued by the Defendant by July 2008. With regards to the alleged design deficiencies listed at para. 14 and proposed remedial work listed at para. 17 of the proposed Amended Statement of Claim, the Defendant states that these were known by the Plaintiff at a time outside the limitation period.
A chronology of steps in this action is contained at Tab A of the Plaintiff’s factum.
Administrative dismissal
The law applicable to setting aside the order of a registrar is not disputed. It involves an exercise of the court’s discretion to determine whether or not it is just to set aside the dismissal order considering all factors and circumstances relevant to each particular case. It’s a weighing exercise to determine the result that is just in the circumstances. The court must balance the interests of the parties and those of the public in the timely resolution of disputes. A contextual approach is to be adopted, not necessarily meeting each and every factor, with prejudice being a key consideration. A summary is provided in Vogrin et al. v. Ticknor Estate, 2012 ONSC 1640 at para. 32. I have considered these factors and principles in deciding this motion.
I am satisfied that the Plaintiff has brought this motion promptly.
Unlike the circumstances present in Vogrin, here Plaintiff’s counsel provided information why the set down date was not met. It was accidentally not entered in his diary. He was distracted by the limitation period issue raised by the Defendant. He consulted his insurer, whom he believed were investigating. This was a busy time and he was preoccupied with other matters. The Plaintiff swore that it always intended to proceed with this action. Although the cross-examination highlights a number of weaknesses, including not the best of reporting system between the lawyer and client (Plaintiff) and internally at the Plaintiff, I am satisfied, for the reasons indicated above, by the Plaintiff’s evidence on this factor – that the failure resulted from inadvertence.
There have been several periods of delay since this action was started. Very little has been done to advance this action. Pleadings are complete, however subject to the amendment motion and discovery of documents appear fairly complete. Examinations for discovery have not been conducted.
However, this is a fairly complicated and document heavy action. Pleadings in the third party claims did not close until January 2009. During this time, requests for documents were made of the Defendant. A mediator was selected. A case conference was scheduled and held in October 2008. The peer review and remedial work conducted by the Plaintiff delayed the action. Requests for the Defendant’s complete file and delays in providing the file delayed the action. Another case conference was held in October 2009 and although the timeline was not met, it was premised on the Plaintiff’s peer review being available by the end of the year. I accept as reasonable the explanation of counsel for the Plaintiff that he was waiting for the peer review and remedial work. I understand and appreciate the Defendant’s disagreement about the reasonableness of these explanations but do not accept their arguments on these points. The action would not have proceeded any faster by having multiple rounds of paper discovery and examinations for discovery, which is often what happens when examinations for discovery are held too early. The peer review report was delivered in May 2010. Remedial work was ongoing in 2010 into early 2011. In January 2010 the Defendant provided its complete file which was quite voluminous. Further to the status notice, a timetable was agreed. The Plaintiff served a draft amended Statement of Claim on May 16, 2011. Particulars were requested by the Defendant who also raised limitation issues. A redrafted amended statement of claim was provided on July 4, 2011, and a draft affidavit of documents on July 28, 2011. Subsequently, Plaintiff’s counsel became concerned with limitation issues and in December 2011 put his insurer on notice. This distracted him from this matter and the action was dismissed on March 13, 2012.
The explanations provided are not perfect and do not perfectly answer all delays. However, a perfect explanation is not what is required. An adequate explanation is sufficient.
Gaps occur in any action and a perfect accounting of every moment is not required to establish a sufficient explanation.[^1] Some of the gaps in this case are troubling, particularly the Plaintiff’s repeated failures to meet timelines. However, as explained and contrary to what is argued by the Defendant, I accept the Plaintiff’s explanations, in these circumstances, as reasonable and adequate. The litigation delays have been adequately explained.
In assessing whether or not it is just to set aside an administrative dismissal, prejudice is a key consideration.[^2] The plaintiff must convince the court that the defendant has not been prejudiced in presenting its case at trial as a result of the plaintiff’s delays or as a result of steps taken following the dismissal of the action.[^3] The expiry of a limitation period creates a presumption of prejudice. Where the presumption arises, the plaintiff bears the burden of rebutting the presumption and if the presumption is displaced then the onus shifts to the defendant to establish actual prejudice. Prejudice is not prejudice inherent in defending the action in the first place but prejudice relating to the plaintiff’s delays or steps taken by the defendants following the dismissal order.[^4]
In this action, the evidence presented by the Plaintiff establishes that the Defendant was put on notice early, with counsel involved. It establishes that there is extensive documentation, which has been preserved. It also establishes that, to the knowledge of the Plaintiff, documents have not been destroyed nor have any witnesses died. This is quite different from the circumstances in Vogrin. The sewer system is in existence and available for inspection.
The Defendant has not provided evidence of actual prejudice. It relies on the presumption of prejudice arising from the expiry of a limitation period and on its arguments that the Plaintiff has not sufficiently dealt with prejudice.
I am satisfied that the Plaintiff has sufficiently rebutted the presumption of prejudice arising from the expiry of the limitation period and established that the Defendant has not been prejudiced as a result of the Plaintiff’s delays or as a result of steps taken by the Defendant following the dismissal of the action.
I am mindful of the importance of ensuring that our system of civil justice requires timely disposition of actions as memories fade with time. Fairness includes timely resolution with the absence of actual prejudice not always trumping the value of timeliness and efficiency.[^5] However, in the circumstances of this case, as explained above, I am satisfied that prejudice has been sufficiently addressed by the Plaintiff (see for example para. 45).
The Plaintiff has provided evidence that it intended to proceed with the action without assenting or intentionally delaying the action. This evidence was challenged on cross-examination. However, I am not convinced that the Plaintiff’s lack of sufficient reporting and follow-up constitutes intentionally not proceeding with this action. Rather, I accept the Plaintiff’s explanations, as indicated above.
Although a contextual approach is to be adopted, weighing relevant factors to determine the result that is just in the circumstances and although it is not necessary for the Plaintiff to satisfy all of the Reid factors and all other relevant factors, in this case the Plaintiff has met the Reid factors.[^6]
In the circumstances of this action, considering all relevant factors, it is just that the Plaintiff’s motion to set aside the administrative dismissal be granted and that this action be allowed to proceed.
Amendments to the statement of claim
Rule 26.01 of the Rules of Civil Procedure makes granting leave to amend a pleading mandatory at any stage of an action subject to the court being satisfied that prejudice would not result that could not be compensated for by costs or an adjournment. The burden of showing prejudice is with the responding party, the defendant in this instance.[^7]
Pleading a new cause of action after the expiry of a limitation period gives rise to a presumption of prejudice. The prejudice in such a case results from the loss of a limitation defence.[^8] The onus would then be on the moving party to show that the new cause of action could not be discovered before a certain date such that the amendment is not out of time. However, the court should not, on a pleadings motion, engage in an assessment of credibility or weighing of evidence to resolve a discoverability issue and instead, when such an assessment or weighing of evidence would be required, if appropriate allow the amendment subject to a limitation defence.[^9]
In this case, the original statement of claim:
- Seeks damages for breach of contract (paras. 1 and 19).
- Seeks damages for negligence (paras. 1 and 19).
- For required remedial and additional work and related engineering, investigative, testing and re-design costs, consequent upon the breach by the Defendant of its engineering design obligations as hereinafter pleaded (para. 1(a)).
- Seeks damages for the loss to the Plaintiff of available government funding suffered as a result of the Defendant’s failure to accurately estimate the construction and related costs of the project (paras. 1, 18 and 19).
- Alleges that the breach of contract and negligence have occasioned remedial, additional work, related engineering, investigative, testing and re-design costs, consequent upon the breach by the Defendant of its engineering design obligations. Alleges that the parties entered into an engineering services agreement in May 2003 for professional services for design and management of construction in connection with the project for design services, general administration and site inspection. It refers to significant increases in the estimated cost of construction starting in January and in September 2004 and increases in the estimated completion schedule of initially 12 months. That funding was approved in April 2005 for $9.3 million based on the then estimated cost and 12 month schedule. The project went to tender in June 2005 and the lowest bid was for $10.9 million with a completion schedule of 24 months. The lowest bid was accepted on the recommendation of the Defendant. That by then increased funding was no longer available. Work started in January 2006. In February 2006 the contractor advised that estimated rock quantities were not 40 cubic meters, as per the contractual allowance estimated by the Defendant, but 785 cubic meters. That this would increase cost of the project by over $600,000.00. That the Defendant ought to have identified the order of magnitude of rock at this location given the available investigations. Additionally, that the Defendant underestimated its engineering services. That the overall impact of changes to the project leaves approximately $3.5 million in project and related costs unfunded as not part of the initial budget. That this shortfall in funding is due to the negligence and breach of contractual obligations of the Defendant under its engineering services agreement (paras. 1, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 19).
The statement of defence responds to the allegations explaining that the scope of work was changed by the project manager, OCWA, that government funding was restricted for other reasons and that the Plaintiff knew that the cost of the project was expected to exceed estimates. It alleges that the Defendant relied on geological report of Trow Associates Inc. to estimate the amount of rock. It also pleads that the action is statute barred (para. 27).
The draft amended statement of claim:
-seeks increased damages at para. 1 (a) from $1.5 to $4.5 million for breach of contract and negligence; and
-adds new paras. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23.
Both the original and draft amended statement of claim, at paragraph 1 (a), refer to “the breach by the Defendant of its engineering design obligations as hereinafter pleaded” and each, respectively at paragraph 19 and 31, “state that MMM was negligent and in breach of its contractual obligations to Greenstone under the engineering services agreement”. This refers to the agreement that the parties entered into in 2003. This agreement and its obligations are an integral part of the factual matrix pled in the original statement of claim.
I find that the bulk of the amendments are very clearly particularization of the existing claims contained in the original statement of claim while others relate to the remedy sought and simply particularize or extend the claim for relief already made. These proposed amendments are therefore unaffected by any limitation period. They are not alleging new causes of action or do not amount to pleading a new cause of action. Generally, somewhat similar to the situation in Dee Ferraro v. Pellizari (supra at note 8), the bulk of the amendments arise from core facts already pleaded.
The factual situation remains the project and the Defendant’s contractual performance and negligence/breach of contract under the May 2003 engineer services agreement (pled at para. 19 of the original statement of claim). The factual matrix is unchanged and continues to relate to damages allegedly suffered as a result of the Defendant’s negligent work and breach of contract on the project with one exception. The amended statement of claim makes reference to an environmental study report prepared by the Defendant in May 2000. Specific references to this are found at paragraphs 8, 9 and 10 of the amended statement of claim.
Although this is not pleaded in the clearest of way possible, I find that these three paragraphs (8, 9 and 10) raise a new cause of action.
Remember that a cause of action is the factual situation which entitles a party to seek a civil remedy from another party. As indicated:[^10]
“The key is whether substantially all of the material facts giving rise to the "new cause of action" have previously been pleaded or whether new facts are sought to be added that are relied upon to support a new cause of action.”
Again, as indicated in Bazkur v. Coore et al., “A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded…or amount simply to a different legal conclusion…or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based”.
Additionally, indirect references to the environmental study report prepared by the Defendant in May 2000 may be found in part in paragraphs 14 (k), 14 (m) and 15 of the proposed amended statement of claim, insofar as these paragraphs indirectly appear to make reference to design of the upgraded wastewater treatment plant undertaken or performed by the Defendant as part of the environmental study report prepared by the Defendant in May 2000. Reliance on a breach of contract or on some negligence related to the environmental study report of May 2000 would be pleading new facts and not particulars of the originally pleaded breach of contract and negligence which, as pled, relate to the May 2003 engineering services agreement.
For the amendments that do not raise a new cause of action, I am satisfied that the Defendant is not prejudiced by the amendments. Extensive records and documentation exist and have been exchanged and examinations for discovery have not been completed and full questioning on the particulars provided by these amendments can occur. Additionally, for these amendments I do not have to deal with discoverability.
I have considered but, for reasons stated above, do not accept the Defendant’s arguments on this motion that all of the amendments raise new causes of action. The amendments that raise a new cause of action are those identified above that relate to the environmental study report for which the Defendant was retained in May 2000, particularly paragraphs 8, 9, 10, 14 (k), 14 (m) and 15. These would raise new facts and are not particulars of the breach of contract or negligence relating to the May 2003 agreement.
Regarding the proposed amendments that raise a new cause of action, the Plaintiff argues that those new causes of action were only discovered by the Plaintiff less than two years before May 18, 2012 (date when this motion was served) as it argues it only discovered such claims upon receipt and review of the Tatham peer review report in late May 2010. This is supported by the affidavit of a representative of the Plaintiff.
However, on this topic the evidence is very much in dispute between the parties. The Defendant insists that the Plaintiff knew before and much earlier than when the Tatham report was delivered. The Defendant’s affidavit sworn October 11, 2012, provides some evidence that design issues became evident as early as May 2007, June 2007, October 2007 and March 2008.
On the other hand, the Plaintiff in an affidavit from its chief administrative officer indicates that the Plaintiff received the Tatham report on May 26, 2010, and that it was not until its review of this report that it realized the extent of the problems and damage. This was expanded upon during his cross-examination (for example at pages 20, 25 and 28 of the transcript).
From my review of the evidence, I conclude that this case is a prime example of a case where the resolution of an issue of discoverability would require the court to weigh evidence and make findings of credibility. The Plaintiff has put forth evidence that could arguably put them over their onus of showing that such new cause of action could not be discovered before their receipt of the Tatham report. On the other hand the Defendant has delivered evidence that arguably shows that the Plaintiff could have discovered this new cause of action as early as two years before the Tatham report was received. The resolution of this issue would require the court to weigh the evidence and make findings of credibility. This motion is not the appropriate forum for such an exercise.
Considering the above, this is my ruling on the proposed amendments:
All of the proposed amendments are allowed, with additional particulars of why and how provided below, subject however to a term that the Defendant may raise a limitation defence with regards to paragraphs 8, 9, 10, 14 (k), 14 (m) and 15 of the amended statement of claim insofar as these paragraphs directly or indirectly make references to the environmental study report prepared by the Defendant in May 2000 which raise a new cause of action. Initially, I felt that a limitation defence should be restricted to these paragraphs. However, because of how vaguely paragraph 14 is drafted, this court cannot be sufficiently certain that only paragraphs (k) and (m) of 14 make references to a breach of contract or negligence by the Defendant in the design of the upgraded wastewater treatment plant undertaken or performed by the Defendant as part of the environmental study report prepared by the Defendant in May 2000. Therefore, in addition to the above paragraphs 8, 9, 10, 14 (k), 14 (m) and 15 being allowed subject to this term of a limitation defence, all of paragraph 14 is as well to be subject to this same term that the Defendant may raise a limitation defence for any allegation related to the May 2000 environmental study report discovered by the Plaintiff two years before the date of service of this motion. Although the Defendant has already raised a limitation defence, this will allow them additional protection addressing any potential prejudice resulting from the amendments.
Specifically,
-1 (a): Seeks additional relief and is allowed.
-6: Provides greater particulars or more details surrounding the existing plea of negligence and breach of contract and is allowed.
-7: Same as for 6 above and is allowed.
-8: This paragraph raises a new cause of action as indicated above. These facts are not part of the original statement of claim. The amendments at this paragraph are nonetheless allowed, for reasons explained above, but subject to a term that the Defendant may raise a limitation defence related to the environmental study report prepared by the Defendant in May 2000.
-9: This paragraph raises a new cause of action as indicated above. These facts are not part of the original statement of claim. Engineering design obligations are pleaded in the original statement of claim but only insofar as these relate to the May 2003 engineering services agreement. The amendments at this paragraph are nonetheless allowed, for reasons explained above, but subject to a term that the Defendant may raise a limitation defence related to the environmental study report prepared by the Defendant in May 2000.
-10: The reference to “…Class Environmental Assessment planning process” raises a new cause of action. This is not part of the original statement of claim and this paragraph is nonetheless allowed, for reasons explained above, but subject to a term that the Defendant may raise a limitation defence related to the environmental study report prepared by the Defendant in May 2000.
-11: Same as for 6 above and is allowed.
-12: Same as for 6 above and is allowed.
-13: Same as for 6 above and is allowed.
-14: Same as for 6 above for most of 14 and is allowed however, for reasons explained above, subject to a term that the Defendant may raise a limitation defence for any allegation related to the May 2000 environmental study report prepared by the Defendant in May 2000. It is difficult for this court, on such a motion, to ascertain which one or which parts of these are particulars of the breach of contract or negligence flowing from the engineering services agreement versus those flowing from the environmental study report. For reasons explained above, allowing all of these to be pled subject however to a limitation defence for any that relate to the environmental study report addresses this issue.
-15: Same as for 6 above and is allowed however, for reasons explained above, subject to a term that the Defendant may raise a limitation defence for any allegation related to the May 2000 environmental study report.
-16: Same as for 6 above and is allowed.
-17: Same as for 6 above and is allowed.
Disposition
- I therefore order as follows:
a. The Order of the registrar dated March 13, 2012, dismissing this action for delay, is hereby set aside.
b. If the parties cannot agree, within the next 15 days, on a litigation timetable for outstanding steps, including the set down date, then a case conference shall be scheduled before one of the Ottawa masters with participation by teleconference or/and in person as may be requested by any of the parties. If on consent, a suggested timetable and set down date is to be provided to the court for its approval by March 28, 2013, otherwise by March 28, 2013 a case conference is to be scheduled for the next available date.
c. Leave is granted to the Plaintiff to amend the Statement of Claim in the form attached at Tab 10 (d) of the amended motion record subject however to a term that the Defendant may raise a limitation defence with regards to paragraphs 8, 9, 10, 14 and 15 of the amended statement of claim for any allegation related to the May 2000 environmental study report discovered by the Plaintiff two years before the date of service of this motion.
d. If the parties cannot agree on the issue of costs for this motion, they may make brief written submissions to my registrar no later than: the Plaintiff within 10 days and the Defendant within 7 days of receiving the Plaintiff’s costs submissions.
DATE: March 12, 2013
Master Pierre Roger
[^1]: Johnstone v. Vincor International Inc., 2011 O.J. No. 4750 at para. 45
[^2]: Vogrin et al. v. Ticknor Estate, 2012 ONSC 1640 at para. 32
[^3]: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3rd) 660 at para. 12
[^4]: Vogrin, supra at note 2
[^5]: 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 at para. 33
[^6]: Reid v. Dow Corning Corp., 2001 O.J. no. 2365, reversed on other grounds 2002 O.J. No. 3414
[^7]: Barker v. Furlotte, 1985 CarswellOnt 974 at para. 9
[^8]: Dee Ferraro Limited v. Pellizari, 2012 ONCA 55 at para. 5
[^9]: 863880 Ontario Ltd. v. Canadian Pacific Railway et al., 2012 CarswellOnt 12098 at para. 108 and Andersen Consulting v. Canada (Attorney General), 2001 8587 (ON CA) at paras. 34-35