2015 ONSC 7827

COURT FILE NO.: CV-13-491595

DATE: 2015-12-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 206 Bloor Street West Limited Carrying on Business as Museum House, Plaintiff

-and-

St. James Investments Limited, Defendant

BEFORE: F.L. Myers J.

COUNSEL:
D. Preger and T. Arndt, counsel for the plaintiff

R. Cohen, counsel for the defendant

HEARD: December 11, 2015

ENDORSEMENT

[1] The parties are preparing their cases for a summary judgment motion. I have been providing case management assistance to them arising out of a scheduling appearance in Civil Practice Court. The plaintiff has agreed to produce documents prior to undergoing cross-examination. However, it is having difficulty accessing documents due to the untimely passing of people involved. Moreover, the plaintiff, as owner, contracted out most of the services associated with the relevant elements of the construction of the building that are in issue in this case. As a result, the plaintiff says that the relevant documents are in the possession of contractors, sub-contractors, or third party service providers to the plaintiff.

[2] The plaintiff and its counsel are in the process of contacting contractors, sub-contractors, and third party service providers in order to obtain copies of correspondence and other relevant document in their files. The plaintiff’s counsel agrees that this process has taken longer than it ought to have taken due to intervening events. If it is able to engage its contractors, sub-contractors, and service providers on a cooperative basis, the plaintiff should be able to produce its relevant documents by January 29, 2016 and I order it to use its best efforts to do so.

[3] The court requests the cooperation of the contactors, sub-contractors, and third party service providers whom the plaintiff contacts to collect relevant documents. While people are often reluctant to become involved in legal disputes involving others and few relish conducting document searches, engaging on a voluntary basis is nearly always quicker and cheaper for all concerned. If the plaintiff is not able to obtain documents cooperatively, the defendant will have little option but to make a formal request to the court for court orders requiring the contractors, sub-contractors, and third party service providers to deliver up relevant documents. Any such proceedings will be on notice to the contractors, sub-contractors, and third party service providers and will require them to hire lawyers to advance or defend their positions. In the event that any of them end up being ordered to produce documents that they refused to produce voluntarily, I would expect the defendant and possibly the plaintiff to seek indemnity for their legal costs from them. In other words, cooperation will prevent people who have no interest in become involved from become involved and having to bear expenses for their own lawyers and possibly for the other parties’ lawyers.

[4] The parties should contact my office in mid-January, 2016 to schedule a case conference by telephone for early February to schedule cross-examinations or any motions for non-party production as may be necessary.

F.L. Myers

Date: December 14, 2015