ONTARIO
SUPERIOR COURT OF JUSTICE
HAMILTON COURT FILE NO5234/06
DATE: 2015/03/19
B E T W E E N:
RE: RAVENDA HOMES LTD.
Plaintiffs
and
1372708 Ontario inc. and vaughn gibbons
Defendants
A N D B E T W E E N :
RE: RAVENDA HOMES LTD.
Plaintiffs
(Defendant to Counterclaim)
and
Ravenda Homes Ltd. and John Ravenda
Defendants to the Counterclaim
HAMILTON COURT FILE NO 5326/06
DATE: 2015/03/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: RAVENDA HOMES LTD.
Plaintiffs
(Defendant to the Counter claim)
and
1372708 Ontario Inc.
Defendant
(Plaintiff by Counterclaim)
HAMILTON COURT FILE NO 5327/06
DATE: 2015/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: RAVENDA HOMES LTD.
Plaintiffs
(Defendant to the Counterclaim)
and
1372708 Ontario Inc.
Defendant
(Plaintiff by Counterclaim)
BEFORE: Turnbull, J.
COUNSEL: Ryan Breedon and Constanza Pauchulo, Counsel for the Plaintiff (Defendant to the Counterclaim), Ravenda Homes Ltd. and the Defendant to the Counterclaim, John Ravenda
Robert C. Harason, Counsel for 1372708 Ontario Ltd. and Vaughan Gibbons.
HEARD: February 13, March 9 and 16, 2015
ENDORSEMENT
[1] 137 has brought a motion to compel the plaintiffs, and in particular John Ravenda who is the principal of Ravenda Homes Inc. to answer undertakings and questions refused to be answered on his examination for discovery in these three proceedings.
[2] The defendants 137 and Gibbons owned land which was subdivided for the construction of approximately 75 single family residences. It was to be known as the Crystal Ridge subdivision. Ravenda and his company have carried on business building homes and have participated with the defendants in a similar project in the past.
[3] The “Main Action” is file 5324/06. In that action, Ravenda pleads that it had an option agreement with 137 to purchase all the lots in the subdivision on which it would build homes and sell them to the ultimate residents. It alleges that the defendant breached that agreement. The defendants allege that an agreement was never reached between the parties.
[4] In anticipation of the project, Ravenda alleges in action 5326/06 that it build three model homes on three of the lots and began showing them to prospective purchasers. It alleges that 137 agreed to pay for those homes and 137 denies that fact and alleges that it was understood that Ravenda would simply sell those homes to purchasers. In the alternative, 137 alleges that as the model homes are temporary in nature, Ravenda could have and should have removed them.
[5] Ravenda alleges in action 5327/06 (Prospect Point Renovation action) that it renovated a house owned by 137 at 61 Prospect Point Road North at a cost of $37,100.00 which is owned by 137 and seeks payment for that work. 137 denies making such an agreement with Ravenda for the work and alternatively alleges that if there was such an agreement, it was conditional upon the negotiation of an agreement for Ravenda to purchase the lots at Crystal Ridge from 137 on terms agreeable to both parties and that such an agreement was never reached.
[6] Counsel have helpfully provided the court with charts of the undertakings, questions taken under advisement and refusals in each of the actions. The court has listened to submissions on some of these matters while counsel have been able to resolve many of them without the assistance of the court other than to enter the resolution of a particular matter as agreed by counsel.
[7] I attach to this endorsement in electronic form those charts duly completed with my rulings.
Examination for Discovery of Defendants on their Expert’s Report
[8] The plaintiffs have delivered a loss of profits report authored by Deloitte LLP authored by Robert Fowlie. The defendants sought leave in their notice of motion to examine the author of that report. That is directly contrary to the provisions of Rule 31.10. Hence, leave is not granted.
[9] In the alternative, the defendants sought leave to examine the plaintiffs (Ravenda) with respect to the findings, opinions and conclusions of Mr. Fowlie.
[10] Counsel were not able to provide me with any jurisprudence dealing with the right of further discovery of a party when the findings, opinions and conclusions have been delivered in a written report of an expert retained by a party and which has been served on the other party.
[11] I have reviewed the report of Mr. Fowlie. He has clearly listed the documents and facts upon which his opinions and conclusions are based. In my view, there is no express or implied right of discovery as of right of a party on that party’s expert’s report once the report has been delivered other than in exceptional circumstances where there are clearly identified “holes” in the findings of the expert. These should be clearly identified and brought before the court by a party seeking leave to discover the opposite party on those issues.
[12] I state this because in my view, Rule 31.06(3) is directed to the situation where a party who has an expert’s report or has sought an expert’s opinion and has not yet produced it. Otherwise, it would lead to endless questions of a party with a litany of undertakings to ask questions of an expert who has delivered a written report. It would effectively be an “end run” around the specific provisions of Rule 31.10. It would also be a deterrent to early production of experts’ reports.
[13] The defendants, having received the Deloitte report, are at liberty to retain their own expert to assess the Deloitte report, refute it or to agree with it.
[14] In making this decision, I am acutely conscious of the recent words from the Supreme Court of Canada articulated in the Hyrniak decision. While that matter dealt with a reconsideration of how certain summary judgment motions may be heard in a timelier and cost effective manner, the principles that resonate from the decision are that the Rules are to be interpreted to encourage proportionality and accessibility. A significant aspect of accessibility to the legal system relates to the costs confronting a party to access the system and in my view, endless examinations for discovery do little to attain that goal.
[15] In the circumstances, the motion to examine the defendants on the Deloitte report is dismissed without prejudice to the plaintiffs to seek leave if the proper foundation for such a remedy is established.
Conclusion
[16] It is ordered that John Ravenda shall re attend at his own expense before ASAP Reporting Services Inc., 900-333 Bay Street Toronto, ON on May 12th, 2015 at 10:00 a.m. to answer the un answered undertakings given the questions taken under advisement and the refusals on his examinations for discovery as ordered herein and all questions reasonably flowing from the answers given.
[17] It is ordered that Ravenda Homes Ltd. shall provide a further and better affidavit of document which here after gives each production its own unique number and lists all documents relevant to the issues in the action including without limitation, as follows:
- In Schedule A if the documents remain in its possession, control or power, or in Schedule C if they do not. The present location of each document and if privileged, all documents shall be listed in Schedule B. The further and better affidavit of documents shall be served on or before April1 6th, 2015.
[18] It is ordered that the trial of this action shall be adjourned from the long trial sittings of the Central South Region of this court from October 2015 to March 21, 2016.
[19] It is ordered that a judicial pretrial shall be arranged through the office of the Regional Senior Justice after completion of the summary judgment motion in this matter which is to be brought by the defendant’s returnable September 29th and 30th, 2015.
[20] It is ordered that the costs of this motion are reserved pending receipt of submissions and costs summaries from counsel shall be provided within 30 days of this order.
Turnbull, J.
Date: March 18, 2015