Zuppinger and Yan v. TSCC No. 2139 et al, 2017 ONSC 5305

Court File No.: CV-16-557031 (A2/B1/B2/C1) Date: 2017-09-06 Superior Court of Justice – Ontario

Between:

Walter Zuppinger and Min Yan Plaintiffs

– and –

Toronto Standard Condominium Corporation No. 2139, Stephanie Carty-Kegel, Ted Slightham, Maxine Bass, Patti Milner, Duncan McEwan and Tatiana Doubovsky Defendants

– and –

I.C.C. Property Management Ltd., Lanterra Developments Ltd. and Bedford at Bloor Realty Inc. Third Parties

– and –

University Plumbing & Heating Ltd., J.E. Coulter Associates Ltd., Hidi Rae Consulting Engineers Inc. and Page & Steeles – IBI Group Architects (Canada) Inc. and Ted Slightham and Tatiana Doubovsky Fourth Parties

– and –

Soberman Engineering Inc., Fujitec Canada, Inc. and Construction Control Inc. Fifth Parties

Before: Sanfilippo J. Heard: September 5, 2017

Counsel: F. Paul Morrison, Anu Koshal & Avi Bourassa, for the Plaintiffs Walter Zuppinger and Min Yan David LeDrew for the defendants, Toronto Standard Condominium Corporation No. 2139, Stephanie Carty-Kegel, Ted Slightham, Maxine Bass, Patti Milner and Duncan McEwan Aaron Postelnik for the Defendant, Ted Slightham Daniel S. Murdoch, for the Defendant, Tatiana Doubovsky Stuart Woody, for the Third Party, I.C.C. Property Management Ltd. Robyn V. Boucher, for the Third Parties, Lanterra Developments Ltd. and Bedford at Bloor Realty Inc. Shanti Barclay, for the Fourth Party, University Plumbing and Heating Ltd. Reine Reynolds, for the Fourth Party, J.E. Coulter Associates Ltd. Undefended and absent, the Fourth Party, Hidi Rae Consulting Engineers Inc. A.J. Billes, for the Fourth Party, Page & Steeles – IBI Group Architects (Canada) Inc. Undefended and absent, the Fifth Party, Soberman Engineering Inc. Nora Kharouba, for the Fifth Party, Fujitec Canada, Inc. Laura Young, (not present) for the Fifth Party, Construction Control Inc.

Endorsement

A. Overview of Proceedings

[1] This is an action brought by Walter Zuppinger and Min Yan as purchasers of a condominium unit for relief resulting from deficiencies that they allege to have identified.

[2] The plaintiffs’ action is advanced against Toronto Standard Condominium Corporation No. 2139 (“TSSC 2139”) as well as its board members, Stephanie Carty-Negel, Maxine Bass, Patti Milne and Duncan McEwan (the “Board Members”), the vendor of the impugned condominium unit, Tatiana Doubovsky and Ms. Doubovsky’s listing real estate agent, Ted Slightham, who is also implicated in his capacity as a board member.

[3] Subsequent party proceedings were issued as follows;

(a) A third party claim was issued by the TSSC 2139 and the Board Members, against I.C.C. Property Management Ltd., Lanterra Developments Ltd. and Bedford at Bloor Realty Inc. in court file number CV-16-557031-00A2;

(b) A fourth party claim was issued by I.C.C. Property Management Inc. against Mr. Slightham and Ms. Doubovsky in court file number CV-16-557031-00B1;

(c) A fourth party claim was issued by Lanterra Developments Inc. and Bedford at Bloor Realty Inc. against University Plumbing & Heating Ltd., Lanterra Developments Ltd. and Bedford at Bloor Realty Inc. in court file number CV-16-557031-00B2;

(d) A fifth party action was claim was issued by IBI Group Architects (Canada) Inc. against Soberman Engineering Inc., Fujitec Canada and Construction Control Inc. in Court file number CV-16-557031-00C1.

[4] Additionally, counsel has indicated that a further fifth party action is intended to be issued against three manufacturers, such that there is the expectation of yet another related proceeding.

[5] On August 25, 2017, counsel for I.C.C. Property Management Ltd. delivered a Request for Case Management, in accordance with Rule 77.05(2)(b).

[6] On August 31, 2017, these proceedings were assigned into case management.

[7] The first case management conference was conducted on September 5, 2017.

B. Status at Assignment into Case Management

[8] The pleadings closed in the main action in or about November, 2016 and in the third party action in or about April, 2017. Pleadings have not closed in either of the two fourth party actions or in the fifth party action.

[9] The plaintiffs seek to advance the main action so that it can be set down for trial. In furtherance of this objective, on June 5, 2017, an Order was sought and issued by Justice A. Pollack establishing a timetable for the production and examination for discovery stages of the main action. Two elements of this order that remain outstanding: that examinations for discovery in the main action be completed by September 29, 2017 and that the plaintiffs will set the main action down for trial by March 30, 2018.

[10] In furtherance of the deadline of September 29, 2017 for the completion of the examinations for discovery in the main action, the examinations of Ms. Doubovsky and Mr. Slightman were scheduled for August 22, 2017, with the examinations of the plaintiffs, the TSCC 2139 and Board Members to proceed on dates determined to be convenient on August 29, 2017 and September 5, 11 and 26, 2017.

[11] The examination of Ms. Doubovksy was completed on August 22, 2017. By reason of documentary production issues raised by counsel for I.C.C. Property Management Ltd. and due to positions taken by other counsel concerning the appropriateness and proportionality of the discovery process relative to the amounts perceived to be in issue, particularly in the context of multiple subsequent party proceedings, certain still-emerging, the examinations scheduled for August 29, 2017 were not conducted. As the remainder of the scheduled examination dates were understood to be in jeopardy, and as there was the potential for breach of Justice Pollack’s order requiring that examinations be completed by September 29, 2017, this case management conference was convened on an urgent basis.

C. The Role of Case Management

[12] A succinct statement of the purpose of case management, and counsel’s role in relation to it, is set out by Justice F.L. Myers in Schenk v. Valeant Pharmaceuticals International, Inc., 2017 ONSC 5101 at paras. 5 and 6 (Ont. S.C.J.):

“The purpose of this case management process is to resolve the lawsuit as efficiently, affordably and proportionately as the interests of justice allow. The proceeding will be managed to move forward efficiently but not urgently. There should always be at least one process step scheduled and being actively pursued. Parallel scheduling of multiple steps should be expected.

Parties and counsel are required to cooperate on procedural and scheduling matters so as to ensure there is a fair process for all. (See the Commentary under Rule 5-1.1 of the Rules of Professional Conduct “[t]he lawyer must discharge this duty … in a way that promotes the parties’ right to a fair hearing in which justice can be done”) and also Bosworth v. Coleman, 2014 ONSC 6135.”

[13] In application of these principles to the current case, the following is noted:

▪ There are now nineteen parties involved in these proceedings, with the anticipation that a further three parties will shortly be joined in an additional fifth party proceeding.

▪ There were thirteen counsel present at the case management conference, and just as many expected at any day of examination for discovery.

▪ Although the amount reasonably in issue is not presently established, the defendants submit that the cost of the ongoing production and discovery steps are disproportionate to the amount realistically in issue.

▪ If the litigation costs continue to accrue, the costs may prove to be a significant impediment to resolution.

[14] The defendants promoted the conduct of a mediation session before the further continued accumulation of legal expense. The plaintiffs are open to consideration of settlement, but want to complete examinations for discovery in order to be a position to set the main action down for trial, arguing that the plaintiffs ought not to be held down by the weight of the emerging actions. The examination scheduling is complicated by the multiple parties in subsequent proceedings who have a right of examination of the parties to the main action.

D. Specific Case Management Directions

[15] The factors presented give rise to consideration of a party’s right to initiate and conduct examination (Rule 31.04), a party’s right to be examined on only one occasion (Rule 31.05) and the right of a party to complete an examination before being examined by others (Rule 31.04(3)).

[16] Those promoting the conduct of a mediation session before continued, extensive examination for discovery rely on Rule 24.1.09: “A mediation session shall be conducted within 180 days after the first defence has been filed unless the court orders otherwise”.

[17] All these Rules must be applied in the context of Rule 1.04: “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[18] As a means of addressing the parties’ examination rights while recognizing the over-arching objective of advancing these proceedings in the “just, most expeditious and least expensive” manner, examination for discovery in the main action will continue to be advanced before mediation but in a time limited manner intended to focus on sufficient questioning for meaningful participation in mediation. These time limited examinations will be without prejudice to completing the examinations for trial purposes should the actions not settle at mediation. These summary or ‘snapshot’ examinations will allow for focused examination in a cost-efficient manner to foster an environment in which a productive mediation session can be conducted without being over-burdened by costs. After hearing from counsel, it was determined that three hours of summary examination for each witness will achieve these objectives.

[19] The following timetable will be followed:

(a) The defendants Ted Slightham, Stephanie Carty-Kegel (both in her capacity as a board member and on behalf of TSCC 2139), Maxine Bass, Patti Milne and Duncan McEwan will be examined, in that order unless the parties agree otherwise, beginning on October 24, 2017 and continuing on October 25, 2017, each for a maximum of three (3) hours with a maximum of two (2) hours allocated to examination by the plaintiffs. Should the amount of time so allocated not allow for the completion of the examination of these defendants, these examinations will be continued and completed in accordance with sub-paragraphs 19(e) and 19(f), hereof;

(b) The plaintiffs will be made available for examination on October 26, 2017 for a maximum of three (3) hours, each. Should the amount of time so allocated not allow for the completion of the examination of the plaintiffs, these examinations will be continued and completed in accordance with sub-paragraph 19(g), hereof;

(c) A mediation, in accordance with Rule 24.1, will be conducted on November 10, 2017 involving the main action, third party action and both fourth party actions. By reason of the procedural infancy of the current fifth party action, and as a further prospective fifth party action has been identified, these fifth party proceedings are not by this order required to participate in this mediation session. However, I will consider any further order sought by counsel to the fifth party proceeding(s) that the fifth party proceeding(s) be required to be mediated at the same time as all other related actions. A case conference may be convened at the request of any party to the fifth party proceedings to seek an order for inclusion of the fifth party proceedings in the mediation should they not be able otherwise to reach agreement.

(d) In regard to the mediation:

(i) The parties to the main action, third party action and both fourth party actions will confer in an attempt to agree upon a mediator to conduct the mediation on November 10, 2017. In the event of lack of agreement by September 20, 2017, the plaintiffs shall take steps to organize and schedule a further case management conference by telephone, following the same procedure by which this case conference was scheduled, to address the appointment of a mediator;

(ii) Written mediation submissions will be delivered to the mediator not less than seven (7) business days before November 10, 2017;

(iii) Counsel for the plaintiffs will provide the mediator with a brief containing all pleadings and orders herein.

(e) In the event that these actions should not resolve at mediation, all those parties entitled to conduct an examination of discovery of Stephanie Carty-Kegel (both in her capacity as a board member and on behalf of TSCC 2139), Maxine Bass, Patti Milne and Duncan McEwan will do so on November 28, 29 and 30, 2017, commencing in this order of examination and will complete their examinations of these parties at that time;

(f) In the event that these actions should not resolve at mediation, all those parties entitled to conduct an examination of discovery of Ted Slightman will do so on December 12, 2017, and will complete their examination of this party at that time;

(g) In the event that these actions should not resolve at mediation, all those parties entitled to conduct an examination of discovery of the plaintiff will do so on February 28, 2018 and March 1, 2018, and will complete their examination of these parties at that time;

(h) Rules 31.04 applies to all examinations, in that affidavits of documents are required to be served by those asserting a right of examination. Also, Rule 34.12 applies to all examinations in that questions to which objection is taken are to answered subject to a later ruling, save and except for questions objected to by reason of lawyer and client privilege and questions for which objection is stated based on abuse of process.

(i) The plaintiffs will set this action down for trial by March 30, 2018.

[20] Counsel for the fifth party plaintiffs in the current action, and counsel for the fifth party plaintiffs in any such action commenced subsequent to the date of this order, shall serve a copy of this Endorsement on the fifth party defendants in the action in which they are involved.

[21] Counsel for Construction Control Inc. was the only counsel of record whose schedule was not capable of being accommodated in terms of the urgent scheduling of the case management conference of September 5, 2017, and this case management conference thereby proceeded in the absence of this party’s counsel. Construction Control Inc. has not pleaded to the main action, and is thereby not interested in the examinations therein, and is not required to participate in the mediation session, although it can certainly decide to do so. Nonetheless, in the event of concern regarding the timetable, counsel for Construction Control Inc. can request the scheduling of a case management conference following the same procedure by which this case conference was scheduled.

[22] All motions in these proceedings will be heard by me upon a schedule to be set at a case conference by telephone or in person. No motion may be brought in this proceeding before being considered at a case conference.

[23] Broad application of Rule 50.13 will be used to address and resolve matters raised at case conference, in circumstances where this is possible. Counsel ought to expect that procedural orders and directions will be made at case conferences, in accordance with Rule 50.13(6), on informal notice of the issue to be addressed.

[24] Absent any other developments requiring case management, and absent a case conference being requested on the basis of sub-paragraphs 19(c) or 19(d)(i) or paragraphs 21 or 22 hereof, and absent notification of settlement at mediation, a further case conference will be conducted on November 17, 2017 at 8:30 am by telephone. My assistant will circulate a call-in number.

[25] The requirement of preparation, issuance and entry of a formal order is hereby dispensed with, in accordance with Rule 77.07(6).

Sanfilippo J.

Date of Release: September 6, 2017