2017 ONSC 5280
BELLEVILLE COURT FILE NO.: CV-11-0382-00/CV-15-0042-00
DATE: 2017/09/05
SUPERIOR COURT OF JUSTICE – ONTARIO
Court File No. CV-11-0382-00
RE: Platinum Plus Products Inc., Plaintiff -and- N. M. Sutherland Developments Ltd., Defendant
-and-
Norman McKenzie Sutherland, Defendant
-and-
The Corporation of the Municipality of Hastings-Highlands, Defendant
Court File No. CV-15-0042-00
Thomas George Yates, Defendant by Counterclaim
-and-
Platinum Plus Products Inc. and Keith J. Penna, Plaintiffs by Counterclaim
BEFORE: Mr. Justice Stanley Kershman
COUNSEL: James R. Webster for the Plaintiff, Platinum Plus Products Inc.
William P. H. Proctor, for the Defendant, N.M. Sutherland Developments Ltd.
William P. H. Proctor, for the Defendant, Norman McKenzie Sutherland
John Lloyd, for The Corporation Municipality of Hastings-Highlands
Christopher M. Tucker, for the Defendant by Counterclaim, Thomas George Yates
HEARD at BELLEVILLE: August 30, 2017
ENDORSEMENT
[1] A pretrial was held in the within actions which are being heard together. The trial was originally scheduled for the beginning of September 2017.
[2] At the pretrial, the parties by their counsel agreed to the following:
The trial dates currently set are vacated;
The Defendant Municipality is in the process of preparing a report and will have it completed by September 30, 2017. This report will then be circulated to all counsel, who, in turn, will circulate it to the Invitees set out below.
A meeting will be held at the site of the mortgaged premises with the following people in attendance: (“Invitees”)
i. Mr. Sutherland;
ii. A representative of the Greer Galloway Group Inc.;
iii. A representative from Walter Forensic Engineering Inc.;
iv. A representative from GHD Limited;
v. A contractor to be named for the Plaintiff;
vi. A representative from GRG Building Consultants Inc.;
vii. A representative of CMO-Structural Engineers; and,
viii. Mr. Mills of the Municipality.
All representatives are to be qualified personnel from the various firms able to deal with the matter. The meeting will be held before November 30, 2017, on a date acceptable to all of the Invitees. A second meeting can be held if there is a consensus among the aforesaid Invitees who attend the first meeting. If any of the Invitees do not attend either the original meeting and/or any rescheduled meeting, that Invitee will not be able to participate in future discussions.
The purpose of the meeting is to inspect the premises to determine:
(a) what the structural deficiencies are;
(b) how to remedy those deficiencies; and,
(c) the costs to remedy those deficiencies.
(d) Written cost estimates to remedy the deficiencies are to be circulated within 15 days after the completion of the last meeting.
The only issues in terms of deficiencies are issues that have been raised by the experts in their reports to date and no other.
The Invitees will appoint a Chair and a Recording Secretary for every meeting. The Recording Secretary will circulate a copy of the minutes to all of the Invitees, as well as to counsel for all the parties 15 days after each meeting.
Walter Forensic Engineering, the expert for the Plaintiff, will determine what they require to see and do when they are at the meeting on site.
There will be no further test holes drilled into the foundation.
It is admitted by the Defendants, N.M. Sutherland Developments Ltd. and Norman McKenzie Sutherland, (collectively referred to as “Sutherland”), that there is no blocking in Building D.
There is no issue in relation to blocking in Buildings A, B and C since blocking was not mentioned as an issue in any of the reports.
On consent, it was agreed that the septic system can be remediated by the Defendants Sutherland, with a proper permit prior to the meeting being held, however, if that is done, Sutherland does so at its own risk in the event that there are issues with the current septic system and/or the grading of the property and any other issues that might arise from work being done prior to the meeting.
Sutherland will remedy the support for the beams after obtaining the appropriate permit, if required.
Sutherland will repair the two broken trusses.
Sutherland will install blocking in Block D with the appropriate permit.
The parties agree to amend the Scott J. Order of September 25, 2012, by deleting paragraph 3. The balance of the Order remains in effect including compliance with paragraphs 5 and 6. The only other change is paragraph 6(v). Any mortgage back is to be held by Templeman Menninga LLP In Trust instead of Proctor Professional Corporation In Trust.
Copies of all listing agreements which were signed by the Sutherland as mortgagee in possession after September 25, 2012, will be circulated to all counsel within 30 days;
The Sutherland Defendants acknowledge that the only accepted offer received to date, while under a power of sale proceedings, was that from a Mr. Bancroft.
Mr. Webster remains the solicitor of record for the Plaintiff until formally removed from the record.
Any further expert report being obtained by the Plaintiff concerning Mr. Yates is to be served by October 31, 2017.
Any other expert reports being obtained by the Plaintiff are to be served by December 15, 2017.
Any responding reports are to be served by February 16, 2018.
The Court will obtain a new trial date and will canvass the same with counsel. This is a two week trial.
A teleconference will be held on March 7, 2018, at 4:30 p.m. to determine the status of the matters. The Court will provide the call-in numbers.
A pre-trial will be held on March 29, 2018, at 2:00 p.m. for half a day before Kershman J.
[3] Order accordingly.
Mr. Justice Stanley Kershman
Date: September 5, 2017
2017 ONSC 5280
BELLEVILLE COURT FILE NO.: CV-11-0382-00/CV-15-0042-00
DATE: 2017/09/05
ONTARIO SUPERIOR COURT OF JUSTICE
Court File No. CV-11-0382-00
RE: Platinum Plus Products Inc., Plaintiff -and- N. M. Sutherland Developments Ltd., Defendant
-and-
Norman McKenzie Sutherland, Defendant
-and-
The Corporation of the Municipality of Hastings-Highlands, Defendant
Court File No. CV-15-0042-00
Thomas George Yates, Defendant by Counterclaim
-and-
Platinum Plus Products Inc. and Keith J. Penna, Plaintiffs by Counterclaim
BEFORE: Mr. Justice Stanley Kershman
ENDORSEMENT
KERSHMAN J.
Released: September 5, 2017