Court File and Parties

COURT FILE NO.: 10-48168

DATE: 2014-03-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CAMPBELL POOLS INC., Plaintiff, (Respondent.)

AND:

THE SEVILLE GROUP INC., Defendant, (Applicant)

BEFORE: Honourable Justice Timothy Ray

COUNSEL: Kelly Hart, Counsel, for the Plaintiff (Respondent)

Kevin A. Johnson, Counsel, for the Defendant (Applicant)

HEARD: March 13, 2014

Endorsement

[1] The defendant moves to discharge a certificate of pending litigation dated April 9, 2010 obtained by the plaintiff on lands that are in dispute in this litigation, for an order that the plaintiff pay $300,000 into court in exchange for the CPL, and for an order to compel certain answers and undertakings arising from examination for discovery. The motion proceeded only on the questions and undertakings arising from the examination for discovery; and because of time constraints was adjourned to July 3, 2014 at 10am with respect to the balance of the relief being sought.

[2] The plaintiff commenced an action against the defendant April 8, 2010 for specific performance and for damages on the basis of an accepted offer to purchase of the property. Alternatively, he claims damages for $650,000 improvements to the property. The defendant disputes that there was an enforceable agreement of purchase and sale; and says that any money the plaintiff put into the property was from insurance proceeds which rightfully ought to have been credited to the defendant.

[3] The trial is scheduled to proceed the week of September 8, 2014. A motion has been set down May 22, 2014 for third party production of the insurers file. A pre-trial took place a few months ago at which time the trial date was set. The motion for refusals and undertakings was noted as being the only outstanding matter.

[4] I heard argument on the undertakings and refusals with reference to the plaintiff’s Motion Record at Tab 1- J. I gave my decision on each question/undertaking as they were canvassed by counsel. Many were agreed to. For clarity, I am repeating my orders with reference to the numberings in the chart:

#1 The plaintiff is to re-attend at his own expense to answer questions about the $310,000 item.

#2 The plaintiff is to advise their position in writing or on a re-attendance their position concerning the relevance of the two agreements of purchase and sale.

#3 The plaintiff is to produce the current insurance policy. It is relevant to show the nature and extent of the plaintiff’s insurable interest and to show the detail of the insurance and that the property is insured.

#5, #6 Premature.

#7 The plaintiff to provide an itemized response to item 34 within 14 days.

#10 The plaintiff’s email of August 27, 2013 is insufficient. A further and better answer is required within 14 days.

#13 The plaintiff has not answered this question. Reply required within 14 days.

#14 The plaintiff has not answered this question. Reply required within 14 days.

#15 The plaintiff has not answered this question. A reply required within 14 days.

#16 Has been answered.

#17 A further and better answer is required within 14 days.

#19 A further and better answer is required within 14 days.

#20 A further and better answer is required to show the details of the work done on each building.

#21, #22, #23, and #25 A further and better detailed response is required.

#26 Response required now as part of the discovery process. It is not sufficient for the answer to be provided five days before trial.

#27 I believe the answer to this question will be answered in the third party records motion in May, and item #3 above.

[5] If there are remaining issues arising out of the above, then they may be addressed when this motion continues July 3, 2014 on the balance of the relief sought. Costs will be dealt with at the end of this motion.

Honourable Justice Timothy Ray

Date: March 17, 2014