Court File and Parties

Barrie Court File No.: 08-1037A1 Date: 20160524 Superior Court of Justice - Ontario

Re: Tom Renzetti and Stella Renzetti, Plaintiffs And: Simcoe Estates Limited, Luigi Orsi, The Township of Oro-Medonte and Mark Penfold, Defendants And: Stewart Title Guaranty Company, Third Party/the Moving Party

Before: The Hon. Mr. Justice G.M. Mulligan

Counsel: D. Dooley and J. Connell, Counsel for Stewart Title Guaranty Company/the Moving Party A. Husa, Counsel for the Defendant, Mark Penfold J. Assaf, Counsel for the Plaintiffs/Responding Parties, Tom Renzetti and Stella Renzetti

Heard: April 26, 2016

Endorsement

[1] The moving party, Stewart Title Guaranty Company (Stewart Title), brings a motion seeking an order authorizing Samson Wong, P.Eng., to conduct certain inspections of the interior and exterior of the plaintiffs’ property. The remaining defendant, Mark Penfold, supports the third party’s motion. Earlier, the moving party had also sought an adjournment of the pre-trial conference and an adjournment of the trial date, which was scheduled for the May 2016 sittings. By subsequent agreement and on consent, McCarthy J. adjourned the trial date to the November 2016 sittings with a pre-trial conference to be scheduled.

[2] The plaintiffs oppose the request sought as both unnecessary and potentially invasive and destructive of their residential dwelling.

[3] By way of brief background, the plaintiffs purchased the residential dwelling in 2004. A subsequent report by the Township indicated building deficiencies. The plaintiffs commenced an action against a number of defendants, including their solicitor Mark Penfold. Stewart Title was later added as a third party. The claims against the other defendants have been resolved. The remaining matters involve Mr. Penfold as defendant and Stewart Title Guaranty Company as third party.

[4] With the assistance of their engineering firm, the plaintiffs have identified a number of items that require repair. According to the report of Renzo Villa, P.Eng, there are two major deficiencies that warrant repair. These are identified in his report as follows:

Item 11: Cracks in foundation wall and masonry wall, (over) $73,000 Item 15: Buckling wall between living and master bedroom, $85,000

There are a number of other deficiencies that are minor in comparison.

[5] Counsel for the defendant obtained and filed an expert report focusing on these two issues. That report provides as follows:

Item 11 – The homeowners’ engineers have priced to repair at a cost of $73,000. The engineer has not provided documentation to justify the cost associated with the repair, nor have they provided a repair detail to make the repairs. At the time of my inspection, the homeowners had completely finished the basement so there is no way to determine if repairs were completed.

Item 15 – The homeowners’ engineer has stated costs of $85,000. The engineer has not provided documentation to justify the repair cost, nor have they provided a formal engineer detail as requested by the Township. Without a formal repair detail, a price cannot be determined.

[6] The defendants sought to inspect these particular areas to make their own assessment of costs. As such, Samson Wong, P.Eng. was retained and his affidavit was filed in connection with this motion. Mr. Wong attended the property to do a preliminary inspection and reported on June 23, 2015. Mr. Wong’s affidavit indicates that he would like to do a more invasive inspection. As his affidavit states, at para. 5:

In my report, I note that the house is completely finished, we did not remove any finishes, and our visual review was limited to the area readily accessible. In order to properly assess the foundation wall cracks and to provide repair details, I recommended exposing the cracks from the basement side by removing the drywall and finishes under both basement windows, all the way to the floor level for further assessment. With respect to the wall, I recommend cutting three exploration holes, one hole directly under the girder truss to confirm the size of the supporting post, one hole at mid-height to further assess the ridging, and one hole at the basement ceiling to ensure there is solid support blocking.

[7] Correspondence between counsel to seek approval for this further testing was not successful. By letter dated October 28, 2015, counsel for the plaintiffs replied:

If your expert wishes to conduct any evasive (sic) testing, then we will require the particulars as to the nature of the testing. Specifically, as an example, do they need to cut holes in the walls, and if so, where, how big, how many, etc. Secondly, will your client undertake to repair for any evasive (sic) testing conducted and return the property to the condition it was prior to the testing?

[8] At the hearing of this motion, but not beforehand, counsel for Stewart Title undertook on behalf of its client that any invasive testing work would be returned to the condition it was in before the testing, at the expense of Stewart Title, within a reasonable period of time.

Legal Analysis

[9] Rule 32.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, authorize the court to make an order for the inspection of property in appropriate cases. Rule 32.01 provides as follows:

(1) 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.

(2) For the purpose of the inspection, the court may,

(a) authorize entry on or into and the taking of temporary possession of any property in the possession of a party or of a person not a party;

(b) permit the measuring, surveying or photographing of the property in question, or of any particular object or operation on the property; and

(c) permit the taking of samples, the making of observations or the conducting of tests or experiments.

(3) The order shall specify the time, place and manner of the inspection and may impose such other terms, including the payment of compensation, as are just.

(4) No order for inspection shall be made without notice to the person in possession of the property unless,

(a) service of notice, or the delay necessary to serve notice, might entail serious consequences to the moving party; or

(b) the court dispenses with service of notice for any other sufficient reason.

[10] The plaintiffs’ engineer, Renzo Villa, provided an updated affidavit for the purpose of this motion. His affidavit expresses a view that a review of the existing reports and a visual site review are sufficient to provide remedial work. He further states at para. 6, “It is my opinion that unnecessary invasive inspection methods could have potentially serious repercussions to the foundation structure of the premises and adjacent areas.” However, it should be noted that in a report from August 22, 2005 provided to the homeowners, Mr. Villa expressed the following cautionary note:

Remedial action can be prescribed if report is acceptable, however, existing conditions, once exposed, may vary notably due to the classification/calibre and quality of the reported deficiencies and the reported sandy soil condition. [Emphasis added.]

[11] As to the inspection of the foundation walls, two options were laid out by Mr. Wong. The first option involves exterior excavation to look at the foundation wall below-grade. Mr. Villa’s concern was that this could cause further unexpected consequences to the structure, due to the nature of the sandy soil. However, a second option exists. The alternative is removing the interior finishes so that this area can be more closely inspected. The plaintiffs were very concerned because these interior finishes involve oak panelling. But their concerns can now be alleviated by Stewart Title’s undertaking to restore the premises to its previous condition. The other inspection areas require removing some drywall, inspecting the area, and then repairing and refinishing the drywall area. In my view, these inspections are necessary to assist the court in the proper determination of these issues. The cost of repair is significant according to the plaintiffs, but the defendant and the third party are unable to fully assess this damage estimate without such an inspection. I am satisfied that it is necessary to assist the court in properly determining the damages issue.

[12] Further, the undertaking by Stewart Title to repair both areas to their previous condition satisfies the homeowners’ concern. In addition, the unintended consequences that may arise from exterior excavation can be alleviated if the work is inspected from the interior by removing oak panelling.

Conclusion

[13] I therefore order the inspection of the property as requested by the moving party. I leave it to the parties to work out the necessary details as to notice required to be given, the date of the inspection, and the target date for the work to be restored. Any target date for restoration should take into account the fact that the Township of Oro-Medonte may need to inspect the property, should such inspection be deemed necessary before the areas are restored to their original condition.

[14] If the parties are unable to reach an agreement as to the particulars required pursuant to r. 32.01, they may arrange a further attendance before me by contacting the Trial Coordinator.

[15] Stewart Title’s motion is granted.

Costs

[16] Stewart Title has been successful in this motion. If the parties are unable to reach an agreement as to costs, I will receive written submissions from the moving party not exceeding three pages within 20 days of the release of this endorsement. Thereafter, the plaintiffs will have a further 10 days to submit reply costs submissions, not exceeding three pages.

MULLIGAN J. Date: May 24, 2016