COURT FILE NO.: 994-10
DATE: 2015/11/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Vasantrai Girijashanker Joshi and Jyotibala Vasantrai Joshi (Plaintiffs)
AND:
Birani Homes Ltd. (Defendant)
BEFORE: Justice H. A. Rady
COUNSEL:
Vasantrai Girijashanker Joshi, self-represented
Scott Gallagher, for the defendant
HEARD: Submissions in writing
ENDORSEMENT
Introduction
[1] The plaintiffs have sued the defendant, alleging that there are defects in their home’s concrete foundation. The case came before me in July of this year as a result of an administrative order dismissing the action for delay. In an endorsement dated July 22, 2015, I set out my reasons for setting aside the administrative order. I quoted extensively from a decision of my colleague Leach J. in an earlier motion. He set out a detailed chronology of events in respect of the claim, which I need not repeat here. Suffice it to say that the case has not been advanced in any meaningful way, almost from the beginning and it remains that way today.
[2] I commented in my endorsement as follows:
… [I]t must first be observed that the case has stalled because the parties cannot agree on the terms pursuant to which the defendant will inspect and conduct tests (hereafter referred to for the sake of simplicity as the inspection) on the concrete used in the building of the foundation of the plaintiffs’ house. Their respective engineers seem to be at odds with respect to what is reasonably necessary. As I observed at the conclusion of oral argument, the situation reminds me of a Catch-22. The case cannot move forward from either the plaintiffs’ or defendant’s perspective unless and until the inspection and testing has been carried out. The defendant cannot carry out any remedial work (if warranted) or look to its concrete supplier for compensation (if the plaintiffs’ complaints are meritorious). The plaintiffs’ concerns and those of the City cannot be addressed.
[3] I imposed as a condition of setting aside the administrative order that an inspection of the home’s foundation be carried out by the defendant’s engineering experts in accordance with certain conditions to which the defendants agreed. I also requested that the parties deliver submissions with respect to a litigation timetable, if they could not agree.
[4] The defendant took steps to arrange the necessary inspection in accordance with my order, to take place on August 1, 2015. On July 24, 2015, the plaintiffs wrote counsel setting out a list of eight conditions. On August 6, 2015, a further condition was imposed. Ultimately, the testing that was ordered by the court did not proceed. Mr. Joshi took the position that the defendant’s engineers would be trespassing if they came onto the property.
[5] In the meantime, I received no submissions respecting a litigation timetable. Instead, a large motion record containing 75 tabs was delivered by the plaintiffs. They sought a timetabling order and wished to make oral submissions. In their material, the plaintiffs rehashed the tortured history of this litigation.
[6] Time was set aside for a brief hearing on October 14, 2015. I heard submissions and learned that the inspection that I had ordered had not occurred. Because of time constraints that day, I directed that written submissions be filed respecting when the inspection could be carried out; outlining what the plaintiffs’ nine conditions were; and what were acceptable to the defendant and what were not.
[7] The following is a summary of the correspondence and communication surrounding the most recent failed inspection and testing.
[8] In his letter to Mr. Gallagher of July 24, 2015, Mr. Joshi wanted to know what time excavation would begin and the time and date that the concrete would be tested in the EXP laboratory. EXP is a firm retained by the defendant to perform the inspection and testing. The defendant had no difficulty because the court order provided that the plaintiffs’ engineers could attend when samples were taken and testing was conducted. Timing would necessarily have to be coordinated. The plaintiffs’ engineers are LVM Inc.
[9] On July 28, 2015, Mr. Gallagher, on behalf of the defendant circulated a letter, requesting EXP to speak to LVM. The defendant advised that testing would occur on August 11, 2015 subject to the availability of LVM. The letter also specified that excavation would begin at 8:00 a.m. and the engineers should speak about the precise testing time. The letter also specified that the plaintiffs’ engineers were to inspect the containers that would contain the concrete samples because this was part of the court ordered condition.
[10] On July 30, 2015, Mr. Joshi told EXP’s representative that he was not to contact the plaintiffs’ engineers. On August 7, 2015, the defendant urged the plaintiffs to permit the engineers to speak. On August 7, 2015, Mr. Joshi demanded that the laboratory concrete testing take place the day following when the samples were taken. The defendant agreed.
[11] In the letter of July 24, 2015, Mr. Joshi stipulated that he was to receive proof of the defendant’s engineers’ insurance. The defendant complied although the court order did not require it.
[12] In the same letter, Mr. Joshi sought a copy of the survey of neighboring properties and his own property carried out by EXP, as well as a copy of any written communication with neighboring property owners. Again, the court order provided that a pre-construction survey would be carried out and a geotechnical engineer from EXP would attend to take evidence of the condition of neighbors’ properties to prevent any unwarranted complaints of damage. The court order did not require that this material be shared with the plaintiff. However, the defendant complied with Mr. Joshi’s request.
[13] On August 7, 2015, the defendant further advised that it would get the surveys of neighbors’ properties to the plaintiff on the Monday before testing. On August 10, 2015, defendant provided the pre-construction assessment.
[14] In his letter, Mr. Joshi asked for a copy of the current WSIB certificate for all companies working on the testing. Again, the court order was silent on this issue. Nevertheless, on July 29, 2015, the defendant provided a copy of its engineer’s WSIB coverage to the plaintiff, as well as its own on the following day.
[15] In his letter, Mr. Joshi required that all conditions be satisfied five days prior to testing. The court order contained no such requirement.
[16] Mr. Joshi also stipulated that he wished to inspect the core carrying containers. The court order provided that the core carrying containers would be shown to the plaintiff’s engineers. I note that Mr. Joshi is not going to be conducting any testing himself. He is not an expert. I further observe that in November 2014, the defendant had agreed to the plaintiff’s earlier stipulation for a re-engineering of container hinges, chains for the containers and the provision of locks to which Mr. Joshi would hold the keys.
[17] On August 6, 2015, Mr. Joshi imposed a further stipulation. He wanted the document that was sent by Birani Homes engineers to neighboring home owners be corrected. He pointed out that the document referenced an address at “1891 Coronation Drive” and “Birani Homes”. The job number was also identified. I pause here to say that this was clearly an internal reference used by the engineers to identify their client. There is absolutely nothing objectionable or improper about the reference.
[18] On August 10, 2015, Mr. Joshi sent the following email to defendant’s counsel respecting the inspection and testing.
Mr. Gallagher,
On July 27, 2015 you were requested to provide with some information by August 4, 2015. To day is August 10, 2015 and you have not been able to accomplice that task. This is not a professional way to attend a task. To day I received the clarification about “Notification of Owners refusal form” I am not confused but the form is prepared that way. You have not arranged yet for inspection of core carrying containers and not receive the insurance related surveys yet. It seems you need some more time. Now the best thing is POSTPONEMENT OF THE EXTRACTION OF THE CORES ON AUGUST 11, 2015. That is final. Once you complete providing items as per the list of July 27, 2015 I will work on establishing the mutually agreeable time table for the whole testing process. Do not arrange for extraction of cores on August 11, 2015.
Surveys (Two) of neighboring properties are part of Tab 18 of compendium and EXP should provide us them as to which neighbor’s position is what. We should be fully aware about insurance and it is not a favor from EXP.
I am fully aware about the Order. The Order does not give an authority to BIrani Homes to act unilaterally and as and when to test the concrete. Birani has to full fill testing related requirements part of Tab 18 of compendium too. I repeat testing is not being prevented by us but your lateness in providing requested information is causing postponement. If Birani enters the property it will be against our consent and will be considered as TRESPASSING. So hold every move until all the things are finalized and new date is established. Testing will be done but in orderly manner and without rushing.
Vasant Joshi
[19] The plaintiffs disagree that they have prevented testing and inspection from taking place. Unfortunately, the evidence overwhelmingly demonstrates that they have repeatedly placed impediments to an inspection, which they must understand only operates to their prejudice. The defendant has cooperated with many of the plaintiffs’ demands even though the court order did not require it to do so. The case cannot move forward in any meaningful way to a trial or resolution without the defendant being permitted to inspect and test the foundation. The obfuscation must stop.
[20] Because the plaintiffs presumably have confidence in their engineers, I have determined that the best way to proceed is to order the plaintiffs’ expert to undertake the extraction of core samples and to provide them to the defendant’s expert.
[21] Consequently, an order shall issue on the following items:
the plaintiffs will pay to the defendant its costs thrown away in connection with the abortive August 2015 inspection of $4500 payable within two weeks of the date of this endorsement;
the plaintiffs’ personal engineers LVM Inc. (or such other firm as it retains) are to obtain concrete samples from the locations designated by Devlin Engineering;
the defendant’s engineers EXP Services Inc. will be notified of the date 14 days in advance thereof and they will be permitted to attend the premises to view the extraction of cores;
the cores will immediately be delivered in containers provided by LVM to EXP for testing. All engineers are permitted to view the testing process;
EXP will send the test results to Devlin Engineering;
testing shall be carried out prior to December 15, 2015;
each party will bear their own costs of the testing, subject to adjustment at the conclusion of this litigation.
the claim remains administratively dismissed until the court ordered testing has occurred.
[22] The parties will return to court before me in January 2016 on a date to be arranged with the trial coordinator to confirm that the court ordered testing has occurred. I will then hear submissions respecting a litigation timetable.
“Justice H. A. Rady”
Justice H. A. Rady
Date: November 9, 2015