Liddy v. City of Vaughan, 2017 ONSC 5636

CITATION: Liddy v. City of Vaughan, 2017 ONSC 5636

COURT FILE NO.: CV-09-383329

MOTION HEARD: 20170919

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carolyn Liddy, Plaintiff

AND:

Anna Mauro, City of Vaughan, Bill Robinson, Michael Ridgwell, Defendants

BEFORE: Master B. McAfee

COUNSEL: F. P. Carpenter, Counsel for the Defendants, City of Vaughan, Bill Robinson and Michael Ridgwell

F. Souza, Counsel for the Defendant, Anna Mauro

J. Streisfield, Counsel for the Plaintiff

HEARD: September 19, 2017

REASONS FOR DECISION

[1] The defendants the Corporation of the City of Vaughan, Bill Robinson and Michael Ridgwell (the Vaughan defendants) bring a motion to settle my order of May 16, 2017, an order fixing a timetable for the remaining steps in the action and an order for reciprocal inspections of the plaintiff’s property and the defendant Anna Mauro’s property for the purposes of responding to the plaintiff’s July 2017 expert reports.

[2] The issue of costs arising out of the May 5, 2017, motion was also addressed (see my reasons for decision dated May 16, 2017, at paragraphs 18 and 19).

[3] The plaintiff served a responding and cross-motion record. The plaintiff’s motion was short-served, and not booked or confirmed for the September 19, 2017, return date. The date of October 2, 2017, has been booked for the plaintiff’s motion and the motion shall be confirmed in the normal course.

Settling of the order dated May 16, 2017

[4] On the motion, the parties advised that they agree to the form and content of the draft order now being submitted to the court. I signed the order and the original signed order was provided to counsel for the Vaughan defendants.

Further Reciprocal Inspections

[5] It is the position of the Vaughan defendants that the further reciprocal inspections have already been ordered. I agree.

[6] As set out at paragraph 6 of my order dated May 5, 2017, the parties consent to the further reciprocal inspections now sought.

[7] The plaintiff, through her counsel, also confirmed consent to further inspections or access on her examination for discovery held on July 26, 2017 (Undertaking No. 21, Question 685, Pages 238-239).

[8] There is no issue that the defendant Mauro agrees to further inspections.

[9] The plaintiff argues that there is no evidence before the court in support of the further inspections. In these circumstances, where there is a consent court order and an undertaking permitting the further the inspections, the defendants do not need to place further evidence before the court in support of the further reciprocal inspections now sought.

[10] The plaintiff argues that the defendants’ experts themselves did not attend the plaintiff’s property in accordance with paragraph 6 of the order. The surveyors did attend. Paragraph 2 of Schedule B of the order of May 5, 2017, refers to “consultants” which in my view includes that surveyors working with the experts who delivered the reports. In any event, the undertaking was given after the surveyors attended the plaintiff’s property.

[11] To plaintiff argues that the defendants require leave. The defendants did not set the action down for trial nor did the defendants consent to the action being placed on a trial list within the meaning of Rule 48.06(1).

[12] The parties shall cooperate in the scheduling of the further reciprocal inspections, preferably to take place on a day when there is rain. Any further reciprocal inspections shall take place on or before October 15, 2017.

Timetable

[13] On consent, any outstanding undertakings given on the examinations for discovery of July 26, 2017, shall be answered on or before September 25, 2017.

[14] The balance of any timetabling issues shall be addressed on October 2, 2017.

Costs of the May 5, 2017, motion

[15] The parties were unable to resolve the issue of costs of the May 5, 2017, motion.

[16] The Vaughan defendants seek costs of the May 5, 2017, motion in the range of $1,000.00 to $3,500.00, and, in the alternative, submit that there should be no costs due to mixed success.

[17] The defendant Mauro seeks costs in the amount of $4,553.14.

[18] The plaintiff seeks costs in the amount of $7,000.00 of which $3,500.00 is to be paid by the Vaughan defendants and $3,500.00 is to be paid by the defendant Mauro.

[19] In my view there was divided success on the motion and it is just and reasonable in the circumstances that the parties shall bear their own costs of the motion.

[20] The plaintiff did obtain leave to amend, on consent, with respect to some, but not all, of the proposed amendments. The consent was provided on the morning of the motion. The amendment with respect to the adding of Gino Mauro as a defendant was not pursued on consent. Various particulars of the amended statement of claim were ordered on consent. Reciprocal inspections were ordered on consent.

[21] Relief was granted as against the defendant Vaughan on consent. The defendant Vaughan agreed to serve a supplementary affidavit of documents and agreed to re-attend on an examination for discovery. The defendant Vaughan was successful on the contested issue of the scope of the examination.

[22] The defendant Mauro agreed to comply with her ongoing obligations under Rule 30.07. No order was not made in that regard.

[23] On consent, the non-party Gino Mauro was ordered to be examined for discovery.

[24] The plaintiff was not granted leave with respect to certain contested relief.

[25] The plaintiff was ordered to pay costs thrown away of the amendments. The amounts ordered were less than the amounts sought. The issue can be revisited in the manner set out at paragraph 17 of my reasons for decision dated May 16, 2017.

[26] There shall be no costs of the May 5, 2017, motion payable to any party.

Master B. McAfee

Date: September 22, 2017