ZHOU v. MICKYMAR PRODUCTIONS LTD.

CV-12-452230

2015 ONSC 466

Plaintiff appearing in person Joseph Juda for the defendants Kimme Miles and Royal Lepage Real Estate Services Howard Wolch for Mickymar Productions Ltd., Uncrowded Estates Ltd., Richard Erbe and Maribeth Solomon

ENDORSEMENT

Master R.A. Muir –

1. There are two motions before the court today. Both sets of defendants bring motions pursuant to Rule 32.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order permitting an expert inspection of certain real property owned by the plaintiff at 86 McGill Street in the City of Toronto (the “Property”). The plaintiff is opposed to the relief sought by the defendants.

2. The plaintiff is claiming damages in the amount of $350,000.00 from each set of defendants. The defendants are the former owner of the Property and other persons related to the former owner, and a real estate agent and broker. The plaintiff claims he has suffered damages as a result of a termite problem and related structural damage to the Property. The plaintiff has served expert reports in support of his claim in this regard.

3. The real estate agent and broker defendants have already carried out one inspection of the Property. The former owner defendants have not had an inspection of the Property.

4. At the outset of the hearing of these motions, the plaintiff sought leave to file a factum. The factum contained a number of statements that were not in evidence. However, the moving parties agreed that the statements included in the plaintiff’s factum could be referred to by the plaintiff and relied upon by the court on the same basis as if they were contained in affidavit evidence.

5. Rule 32.01(1) provides that the court may “make an order for the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding”. The word necessary has been interpreted to mean “useful” or “probative of an issue”. See Morier v. Michelin North America (Canada) Inc., [2010] O.J. No. 6131 (SCJ) at paragraph 19. Such an order advances the interest of justice by aiding in the determination of an issue on the merits and should only be refused if there is evidence of some countervailing prejudice or if the order would amount to an abuse of process. See Morier at paragraph 21. The rule should be construed liberally and more than one inspection may be permitted. See Morier at paragraph 24.

6. These are the principles I have applied in determining the issues on these motions. Having done so, it is my view that the requested inspections should be ordered.

7. First, it is my view that simple fairness requires that the defendants be given an opportunity to carry out the requested inspections. The plaintiff has served expert reports upon which he intends to rely at trial. The defendants should be permitted to do the same in the interest of levelling the playing field. It is true that the real estate defendants have already had one inspection but it is clear from the evidence that the inspector was unable to carry out a full inspection as some areas of potential damage to the Property were not accessible on that first inspection. In addition, that expert has not responded to the plaintiff’s expert costs estimates for remediation work.

8. Second, these inspections may assist in promoting the just and expeditious resolution of this dispute. Expert evidence from the defendants will assist all of the parties, including the plaintiff, in assessing the strength of their respective positions and may lead to a resolution before trial. At the very least, the defendants’ expert reports will assist the trier of fact in determining some of the issues in this action.

9. The plaintiff argued that the defendant owners were and are fully aware of the termite problem with the Property. Therefore, the plaintiff submitted that the inspections were unnecessary in the context of this litigation. I disagree. There may be some evidence of the existence of the termites before the Property was sold to the plaintiff. However, that does not address the issue of the damages being claimed by the plaintiff. The inspections requested by the defendants may be probative of the damages claim being advanced by the plaintiff. Inspections under Rule 32.01(1) need only be necessary in respect of an issue and not all issues.

10. The plaintiff also took issue with the qualifications of the proposed experts. While the resumes’ of the proposed experts do not specifically reference termites or expertise with wooden structures, it is my view that they do show the individuals in question to possess prima facie qualifications in pest and insect issues and issues relating to structural defects. In my view, this is not a basis for denying the requested inspections under these circumstances. Of course, it remains open to the plaintiff to challenge the admission of this expert evidence at trial. Any assessment of the expert evidence, once admitted, is then a matter for the trier of fact.

11. The plaintiff also took issue with the defendants’ delay in requesting and scheduling the inspections. I agree with the plaintiff that there has been delay on the part of the defendants. A trial date for March 2015 was agreed to by the defendants before the issues relating to the inspections were resolved. That trial date may now be in jeopardy. However, I do note that the defendants delayed, in part, because they were hopeful of resolving this matter at mediation. It is also important to note that if the plaintiff had agreed to the inspections last fall, the reports may have been available by now. In any event, the plaintiff has proposed certain amendments to his statement of claim which will likely result in a delay to the start of the trial in any event.

12. The plaintiff also pointed out that the Evidence Act, R.S.O. 1990, c. E.23 limits a party to three expert witnesses and more than three persons will be attending the requested inspections. However, the limitation in the Evidence Act is to the number of expert witnesses a party may call at trial and is always subject to the discretion of the trial judge. This is not a basis for refusing the requested inspections.

13. The plaintiff also made submissions about alleged misconduct by the defendants’ lawyers at discovery or otherwise. Any issues related to events at the plaintiff’s examination for discovery are not before me on these motions and, in any event, I see no evidence of such misconduct on the material before me on these motions.

14. Finally, there is no evidence of any prejudice to the plaintiff or abuse of process. These inspections can be carried out in a relatively short period of time with little disruption to the plaintiff. It must be remembered that when a person chooses to commence litigation, he or she is subject to the rules of discovery applicable to civil actions in Ontario. Those rules of discovery include the inspection of property in appropriate cases. It is inevitable that some inconvenience to the plaintiff will flow from such discovery. That inconvenience does not amount to prejudice or an abuse of process.

15. For these reasons, I am hereby ordering the requested inspections. The relief requested by the defendants Myles and Royal Lepage at paragraph (a) of their notice of motion and by the owner defendants at paragraph (a) of their notice of motion is hereby granted. The inspections shall be carried out on a date and time to be arranged among the parties and shall be of a non-destructive nature.

16. The defendants have been successful on these motions. Ordinarily they would be entitled to costs. However, it is my view that the plaintiff’s opposition to these motions was not unreasonable given the delay on the part of the defendants. For this reason, it is my view that it is fair and reasonable that there be no order for the costs of these motions.

January 21, 2015

Master R.A. Muir