Court File and Parties

COURT FILE NO.: CV-15-542750 MOTION HEARD: 20170420 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christopher Cameron et al, Plaintiffs, Moving Parties AND: Hossein Azargive carrying on business as Gulf Engineering, Defendant, Responding Party

BEFORE: Master Jolley

COUNSEL: Lawrence Pick, Counsel for the Plaintiffs Peter Mitchell, Counsel for the Defendant

HEARD: 20 April 2017

Reasons for Decision

[1] The plaintiffs seek damages for what they allege was negligent renovation work done on their home. They have commenced this action in contract and in tort against King’s & Queen’s Custom Homes Inc., King’s & Queen’s Homes Inc. and Sula Kogan (together, the “project manager”) and against Hossein Azargive carrying on business as Gulf Engineering (“Gulf Engineering”).

[2] The plaintiffs examined the defendant Mr. Azargive for discovery on 9 September 2016. The defendant refused a significant number of questions during that examination and the plaintiffs bring this motion to compel Mr. Azargive to reattend to answer undertakings and those refusals. The undertakings have been answered but there remain a substantial number of refusals.

General Law

[3] A party examined for discovery is obliged to answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action. (Rule 31.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194).

[4] The scope of discovery is defined by the pleadings (Ontario v. Rothmans Inc., 2011 ONSC 2504 at paragraph 129). To that end, I have reviewed the statement of claim, the statement of defence and crossclaim of Gulf Engineering and the statement of defence and crossclaim of the project manager.

[5] With the concurrence of the parties, where possible, the refusals have been dealt with in the following groupings.

A. Questions relating to photographs - 304, 305, 306, 309, 310, 311, 312 and 313

[6] These questions relate to Mr. Azargive’s opinion on whether the photographs shown to him on discovery represented the job site on the date of his attendance and then ask some related follow up questions. Gulf Engineering objected to the questions on the photographs on the basis that the plaintiffs did not identify the author of or the date each photograph was taken. The plaintiffs have provided that information. On the follow up questions, Gulf Engineering took the position that the questions had been answered.

[7] The plaintiffs are entitled to know whether Gulf Engineering will take the position at trial that the photographs are not representative of the site on the date in question. As to the provenance issue, the defendant could easily have answered the questions and made his answers subject to the plaintiffs confirming the author of the photographs and confirming the date, particularly as the plaintiffs advised the photographs were taken on the second site visit.

[8] The questions that require Mr. Azargive to advise whether the photographs accord with his recollection of the site on that date are to be answered as are the related follow up questions.

[9] To the extent the defendant indicates he did answer certain of the questions, those answers are not clear on the transcript and he is to answer the specific questions posed.

B. Questions objected to on the basis that they were ‘design-related’ questions - 459, 460, 462, 463, 464, 466, 467, 469, 470-474, 490-494, 503-505, 509, 510, 511, 512, 514, 515, 516, 517, 519, 521, 528, 531-533, 541, 544, 546-548, 550, 554, 598 and 599

[10] The defendant objected to this series of questions on two bases. First, it argued that the plaintiff did not plead negligence in design against Gulf Engineering and only pleaded that the defendant was negligent in carrying out the inspection of the construction, so these questions, which all relate to design, are irrelevant. Second, it took the position that questions on the applicable standards are irrelevant. The defendant’s position is that what the standards were, what calculations it may have used for the work it did relating to the construction and how it arrived at its conclusions on construction issues are all irrelevant as it is the final work product that will be assessed, not the methods the defendant used to get to that work product.

[11] The plaintiffs argue that in order to succeed at trial against this defendant, it is not enough to show the structure failed or the beam failed. They need to prove that the cause of the failures are attributable to Gulf Engineering’s negligence. The plaintiffs further argue that the questions relating to the load wall are directly related to the drawing prepared by Gulf Engineering and the witness’ notes on that drawing.

[12] The plaintiffs further take the position that the questions to this defendant should not be restricted to “design work”. For this proposition, they make the following three observations.

[13] First, for questions relating to the beam, the plaintiffs plead in their statement of claim that the defendants (emphasis added) built a span 20’ wide without any intermediate support, which caused or contributed to failure of the wall. See paragraph 9(c).

[14] Second, on the scope of work and with respect to the beam in particular, the plaintiffs note that Gulf Engineering pleads in paragraph 14 of its statement of defence that it was asked by the project manager about the feasibility of eliminating a support post for the new structural steel beam. The defendant pleads that it carried out the required calculations and, based on those calculations, determined that the beam would have sufficient capacity on its own if certain action was taken to allow for the post to be eliminated. Its recommendation and its calculations are directly in issue.

[15] Third, the defence and crossclaim of the project manager alleges that Gulf Engineering “designed, planned, reviewed and approved” the renovations plans (paragraph 13) and, in particular, alleges that Gulf Engineering failed to perform their duties subject to its scope of work (paragraph 13(c)); designed, planned, reviewed and/or approved renovation plans when they knew or ought to have known of the dangers associated with same (paragraph 13(d)); failed to ensure that the renovation specifications met all conditions and standards required for the completion of the said project (paragraph 13(d)) and failed to conduct appropriate tests, investigations, calculations and/or assessments of the project site at the plaintiffs’ residence to ensure that the renovations plans met all necessary standards (paragraph 13(f)).

[16] On the issue of standards, the plaintiffs have put in issue the shoring, the underpinning and the beams. They pleaded that Gulf Engineering represented that the work was in general conformity with the drawings and specifications which formed the basis for issuance of the building Permit and any changes authorized by the Chief Building official.

[17] Clearly the standards to which the defendant certified that the building conformed are in issue. Given the defendant relies on general conformity as part of its defence, the plaintiffs are entitled to explore why the defendants take the position that the beam was in general conformity with the plans.

[18] Gulf Engineering’s own pleading asserts that it was asked to provide and did provide direction to the project manager about the excavation and, further, that it recommended temporary shoring be immediately installed (see paragraph 9). The defendant also pleads that it complied with the standards of its profession (paragraph 18).

[19] Accordingly, questions on those standards are relevant and appropriate.

[20] Lastly, Gulf Engineering argues that this grouping of questions is irrelevant because it will be an expert who will testify as to whether the work of the defendant met the applicable standards and the defendant’s position on what standards it did or did not follow and what steps it took or omitted to take will be irrelevant. I find that it is likely that the defendant’s answers to these questions will inform the expert who may provide an opinion both on the applicable standards of the profession and also on whether or not the defendant’s actions met those standards. As noted in Shickele v Rousseau (1966), 55 W.W.R. 568 at 570 (BCCA):

… on principle it is difficult to see why a party to an action that raises directly his professional or technical advice or conduct should not be required to give, on discovery, his expert opinion on matters directly connected with the issues raised, where that opinion would be admissible and relevant at the trial.

C. Miscellaneous

Question 178 – Is there any other drawing that I should refer to if I was to try to understand the elements that these drawings required for temporary shoring?

[21] Gulf Engineering objected on the basis that this required Mr. Azargive to have expertise in shoring to answer. The plaintiffs made it clear that this was a factual question as to whether any other drawing in the productions addressed the temporary shoring issue and that the question did not seek an opinion. Mr. Azargive is able to identify whether any of the drawings produced deal with temporary shoring.

[22] The question is relevant and is to be answered.

Question 363 – How was the concrete to stabilize the building?

[23] Gulf Engineering refused the question on the basis that it required the witness’ opinion on the work of another party and related to a decision of the project manager and not the engineer.

[24] The statement of claim raises issues of excavation, ground water and underpinning. Importantly, Gulf Engineering specifically pleads in paragraph 11 of its statement of defence that it recommended the construction of a concrete pad to the project manager as one of two options to stabilize the building. The defendant further pleads that after its recommendation of the two options, the project manager chose the concrete pad option. Presumably the defendant had some rationale as to how the concrete pad that it presented as an option would provide stability.

[25] The question is relevant and is to be answered.

Questions 369, 370, 371 – Was there any undermining of the angle of repose?

[26] Mr. Azargive indicated that he understood was is meant by an angle of repose. His counsel took the position that the question was “vague and nonsensical”. Plaintiffs’ counsel was cut off before he could rephrase the question if, indeed, any rephrasing was necessary. The witness did not have difficulty with the question.

[27] The question is relevant and is to be answered.

Question 378 – Was the water destabilizing the pre-existing structure?

[28] The defendant took the position that this question was answered some 150 questions earlier (Q238) when the witness stated that the footings had not been undermined. That is not responsive to the specific question asked which was whether the water was destabilising the pre-existing structure. This is particularly so when the deponent stated at Q376 that water destabilized the pre-existing structure “when it’s coming for a long time”.

[29] Question 378 was a follow up to that answer, is relevant and is to be answered.

Question 397-400 – Was it your practice when the work is not done in general conformity to drawings to note that on your report to the City?

[30] Gulf Engineering takes the position that its general practice is not relevant. However, its practice may address why there was no notation in its report with respect to the conformity of the work to the drawings. Further, the defendant pleads in paragraph 17 of its defence that it provided a report addressed to the City Building Department confirming that the second floor structural steel beams, underpinning and shoring were in general conformity with the Contract Documents. In paragraph 18 of its defence it pleads that it performed its services in conformity with the standards of its profession. The plaintiffs are entitled to explore those representations and the defendant’s practice when faced with situations of non-conformity.

[31] The question is relevant and is to be answered.

Question 517 – Did the beam perform?

[32] I agree that the defendant has answered the question, stating that they do not agree the beam did not perform.

Question 675 – Do you recall excavation was 3’ deep below that of footings?

[33] The defendant advises it has answered this question at Q278 and Q310. I do not find an answer to this question.

[34] The question is relevant and is to be answered. If the position is that Mr. Azargive does not have a recollection of the depth of excavation, he can say so clearly in response to this question.

Costs

[35] The plaintiffs were entirely successful on their motion. I agree that the defendant was needlessly obstructive during the examination. The issues were raised in the pleadings and were relevant to both the plaintiffs’ case and the defendant’s defence. In the few instances where the question was objected to on the basis that it was not clear, the plaintiffs were not even given the opportunity to rephrase the question. It was simply refused.

[36] The plaintiffs shall have their costs of the motion in the amount of $4,000.00 inclusive of disbursements and HST.

Master Jolley Date: 28 April 2017