CITATION: Liddy v. City of Vaughan, 2017 ONSC 5918

COURT FILE NO.: CV-09-383329

MOTION HEARD: 20171002

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: J. Streisfield, Counsel for the Plaintiff

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

F. Souza, Counsel for the Defendant Anna Mauro and Non-Party Gino Mauro

HEARD: October 2, 2017

REASONS FOR DECISION

[1] The plaintiff brings a motion for various relief. In addition, further to the motion of the defendants the Corporation of the City of Vaughan, Bill Robinson and Michael Ridgwell (the Vaughan defendants) that proceeded before me on September 19, 2017 (see reasons for decision 2017 ONSC 5636), further timetabling and costs were addressed.

[2] No facta or case law were filed in advance of the plaintiff’s motion.

Relief at paragraph 1 of the notice of motion

[3] The relief at paragraph 1 of the notice of motion is a request pursuant to Rule 48.04(1) of the Rules of Civil Procedure for leave to bring the motion, the plaintiff having set the action down for trial.

[4] Two decisions on the issue of leave were provided to the court during responding submissions (Denis v. Lalonde, 2016 ONSC 5960 (S.C.J.) and White v. Winfair Management Ltd., 2005 CarswellOnt 1535 (Master)).

[5] There are two lines of authority concerning the test to be applied. The more established test requires the moving party to show a substantial or unexpected change in circumstances. The broader test requires that the step is necessary in the interests of justice.

[6] Although the plaintiff’s affidavit does not specifically address a substantial or unexpected change in circumstances, or the broader test for leave, the recent amendments to the plaintiff’s statement of claim have resulted in substantial amendments to the statements of defence. I am satisfied that whatever test is applied, to the extent that leave may be required to seek any of the relief sought on the plaintiff’s motion, the test for leave has been satisfied in the circumstances.

Relief at paragraph 2 of the notice of motion

[7] The relief at paragraph 2 of the notice of motion is an order adjourning the September 19, 2017, motion. This relief was not at issue. The September 19, 2017, motion proceeded. No adjournment of the September 19, 2017, motion was sought on September 19, 2017.

Relief at paragraph 3 of the notice of motion

[8] At paragraph 3 of the notice of motion, the plaintiff seeks to examine the defendant Mauro with respect to various matters.

[9] With respect to the relief at paragraph 3a of the notice of motion, the defendant Mauro consents to an examination on her recent amendments to her amended statement of defence and crossclaim and, although not specifically requested in the notice of motion, also consents to be examined on all recent amendments to the pleadings, subject to maintaining her Rule 48 rights. An order shall go accordingly.

[10] With respect to the relief at paragraph 3b of the notice of motion, the defendant Mauro consents to be examined on her outstanding undertakings and pursuant to the order dated August 12, 2014, subject to maintaining her Rule 48 rights. An order shall go accordingly.

[11] With respect to the relief at paragraph 3c of the notice of motion, the defendant Mauro does not agree to be examined on her affidavit sworn January 30, 2017. I decline to grant the examination sought. The affidavit was sworn in response to the plaintiff’s motion originally returnable February 3, 2017. The motion for which that affidavit was sworn has been disposed of by Justice Wilson and by myself. There was no request made to the court for an adjournment of that motion to cross-examine the defendant Mauro on her affidavit sworn January 30, 2017. I was not referred to any case law on this issue. The motion for the relief set forth in paragraph 3c of the notice of motion is dismissed

[12] With respect to the relief at paragraph 3d of the notice of motion, the defendant Mauro does not agree to be examined on “the deficiencies in her productions (affidavits of documents).” In light of the evidence found at paragraph 43 of the affidavit of the plaintiff sworn September 11, 2017, wherein the evidence of Gino Mauro given at his examination held on July 26, 2017, is set out, I am satisfied that the examination sought in this regard is reasonable. The evidence of Gino Mauro referred to in the plaintiff’s affidavit at paragraph 43a, b, f, g and h satisfies me that relevant documents may have been omitted from the defendant Mauro’s affidavit of documents. The motion for the relief set forth in paragraph 3d is granted.

Relief at paragraph 4 of the notice of motion

[13] With respect to the relief at paragraph 4 of the notice of motion, the non-party Gino Mauro consents to a re-attendance to answer questions arising from the undertakings given at his examination held July 26, 2017, with such examination to be held on the same day as the further examination of the defendant Mauro. An order shall go accordingly.

[14] The plaintiff did not refer the court to any of the questions taken under advisement or questions refused nor was this relief pursued in argument. The motion for the relief set forth at paragraph 4 with respect to under advisements and refusals is dismissed.

[15] Although not set forth in the notice of motion, the plaintiff also seeks an order that the plaintiff be permitted to ask the non-party Gino Mauro questions that the defendant Mauro is unable to answer. I make no ruling with respect to what questions may be asked or what questions shall be answered in advance of the examination, the relief not having been sought and the questions to be asked were not before me for consideration.

Relief at paragraphs 5, 6 and 7 of the notice of motion

[16] At paragraph 5 of the notice of motion, the plaintiff seeks to examine Kellie Hodges, legal counsel for the Vaughan defendant, pursuant to Rule 30.06, in connection with the supplementary affidavit of documents sworn by Ms. Hodges on June 30, 2017.

[17] The relief at paragraph 5 was addressed together with the relief at paragraphs 6a (an examination of the defendant Robinson, in lieu of Ben Pucci, on the recent amendments in the Vaughan defendants’ further amended statement of defence and crossclaim), 6b (an examination of the defendant Robinson on the documents referred to in the supplementary affidavit of documents referred to at paragraph 5 of the notice of motion) and 7e (a re-attendance by a representative of Vaughan having knowledge of the matters set out at 7e (i) to (iii)) of the notice of motion).

[18] The parties agree that Mr. Pucci will not be examined further.

[19] With respect to the relief at paragraphs 5, 6a, 6b and 7e, the Vaughan defendants agree to a further examination and submit that the examination should be of Frank Suppa or Joe Landolfi and limited to four hours total. The Vaughan defendants also agree to be examined on answers to undertakings provided on September 25, 2017, although this relief is not specifically sought in the notice of motion.

[20] The plaintiff is agreeable to a limit of four hours if the examination is of the defendant Robinson for one hour and of Frank Suppa for three hours.

[21] If a further examination of the defendant Robinson is ordered, the Vaughan defendants request that his examination be conducted by way of written questions and answers. The plaintiff does not wish to examine the defendant Robinson by way of written questions and answers.

[22] With respect to the relief at paragraphs 5, 6a, 6b and 7e of the notice of motion, I am satisfied that it is reasonable to order the examination of the Frank Suppa for three hours and the examination of the defendant Robinson, for one hour and also on the undertakings provided on September 25, 2017.

[23] Although the defendant Robinson retired from Vaughan on June 30, 2011, he is also a named defendant. The further amended statement of defence and crossclaim of the Vaughan defendants contains an amendment specifically concerning the defendant Robinson (para. 20A). I am satisfied that it reasonable to conduct a further examination of the defendant Robinson limited to one hour.

[24] The defendant Robinson currently resides in Golden Valley, Ontario, located one hour from North Bay. Given that Robinson resides approximately four hours from Toronto, if it is the preference of the Vaughan defendants, the one hour examination of Robinson may be conducted by video conference.

[25] At paragraph 7a of the notice of motion the plaintiff seeks timetabling of the service by Vaughan defendants of a still further and better supplementary affidavit of documents. On the motion, the Vaughan defendants advised that a still further and better supplementary affidavit of documents is in the process of being prepared by the defendant Vaughan. Accordingly, I am ordering that such a still further and better supplementary affidavit of documents be served by the defendant Vaughan. No deadline for the service was addressed in argument. Given that the further examinations are taking place on or before October 31, 2017, more of which is said below, the supplementary further and better affidavit of documents shall be served on or before October 20, 2017.

[26] At paragraph 7a of the notice of motion the plaintiff also seeks timetabling of the disclosure of the originals of all documents listed in schedule “A” to the Vaughan defendants’ affidavits of documents and other documents disclosed to date. At paragraph 7c of the notice of motion the plaintiff seeks a timetable for the inspection of the documents referred to at paragraph 7a of the notice of motion. At paragraph 7d of the notice of motion the plaintiff seeks an inspection of all original documents referred to in the affidavit of documents and answers to undertakings of the Vaughan defendants. The Vaughan defendants agree to the plaintiff attending to review the property file for up to two hours but are not agreeable to any further relief in this regard.

[27] The evidence before me does not satisfy me of a basis to order disclosure of the originals of all documents listed in the affidavits of documents of the Vaughan defendants and other documents disclosed to date. At paragraph 51 of the plaintiff’s affidavit, the plaintiff deposes that one of the reasons why she needs “…to inspect the originals of documents produced in the past is because a number of documents have been cut off or are missing attachments or the quality of the reproduction has been poor and it has been difficult to read or see what is shown on a page.” The plaintiff goes on to give the example of the document at tab 1 of the Vaughan defendants’ affidavit of documents, where the drawing was copied but parts were cut off.

[28] As a result of parts of the copy of the drawing at tab 1 having been cut off, the original of the drawing at tab 1 of Vaughan’s affidavit of documents, if available, shall be made available for inspection. On consent of the Vaughan defendants, the property file shall be made available for inspection for up to two hours within 20 days. An order shall go accordingly.

[29] With respect to any other documents with the issues outlined at paragraph 51 to the plaintiff’s affidavit, the plaintiff shall provide a list of such documents, together with the specific issue as outlined at paragraph 51. Upon receipt of the list, the Vaughan defendants shall make best efforts to obtain the originals of the specific documents listed and make such originals available for inspection. The plaintiff shall provide the list within 10 days of today’s date. Best efforts to make the originals of the documents listed available for inspection shall be made within 10 days thereafter.

[30] At paragraph 7b of the notice of motion the plaintiff seeks timetabling of the service by the defendant Mauro of a further and better supplementary affidavit of documents. In light of the evidence at paragraph 43 of the plaintiff’s affidavit, I am ordering that a further and better affidavit of documents be served disclosing the documents referred to at paragraph 43(a), (b), (f), (g) and (h) to the extent that the documents are, or were formerly, in the Mauro defendant’s power, possession or control. The further and better supplementary affidavit of documents shall be served on or before October 20, 2017.

[31] At paragraph 7b of the notice of motion the plaintiff also seeks timetabling of the disclosure of the originals of all documents listed in schedule “A” to the defendant Mauro’s affidavit of documents and disclosed to the plaintiff to date. At paragraph 7c the plaintiff seeks timetabling of the inspection by the plaintiff of all documents referred to at paragraph 7b of the notice of motion. At paragraph 7d the plaintiff seeks timetabling of the inspection of all original documents referred to in the affidavit of documents and answers to undertakings of the defendant Mauro. The defendant Mauro agrees to an order making available for inspection all documents referred to at paragraph 7b with respect to documents produced to date. An order shall go accordingly. Although a deadline was not specifically addressed in argument, a deadline of within 20 days is reasonable.

[32] With respect to the relief at paragraph 7f of the notice of motion, the plaintiff seeks a deadline for the delivery of further expert reports of October 30, 2017, and a deadline for the delivery of further reply expert reports of November 30, 2017. The defendants seek a deadline for the delivery of further expert reports of November 15, 2017, and a deadline for the delivery of further reply expert reports of November 30, 2017.

[33] There is a difference of two weeks between the suggested deadlines of the parties for the delivery of further expert reports. My preference is to order a deadline that all parties feel they can meet. I am ordering a deadline of November 15, 2017, for the delivery of further expert reports. The parties agree to the deadline for delivery of further reply expert reports. On consent, the deadline for the delivery of further reply expert reports shall be November 30, 2017.

Other timetabling issues

[34] The other timetabling issues addressed on the motion were deadlines for any further examinations and motions. The plaintiff seeks a deadline for further examinations to take place on or before October 31, 2017. The plaintiff also seeks a deadline for any further motions to be brought on or before November 30, 2017. The defendants are agreeable to these deadlines. On consent, an order shall go accordingly.

Costs

[35] The plaintiff seeks costs of the September 19, 2017, motion and the within motion payable by the defendant Mauro to the plaintiff in the cause in the amount of $2,000.00. The plaintiff also seeks costs of the within motion payable by the Vaughan defendants to the plaintiff forthwith in the amount of $3,000.00. The plaintiff also seeks $10,000.00 payable by the Vaughan defendants. The plaintiff submits that the amount of $10,000.00 represents the costs thrown away as a result of the deficient production and examinations of the Vaughan defendants and is equivalent to the amounts paid by the plaintiff pursuant to the order of Justice Wilson made when the trial was adjourned. No costs outline was provided by the plaintiff.

[36] The defendant Mauro seeks costs for the September 19, 2017, motion and for the within motion in the total amount of $6,332.33.

[37] The Vaughan defendants seek costs of the September 19, 2017, motion in the amount of $3,500.00 and submits that costs of the within motion should be ordered payable in the cause and that any costs thrown away should also be in the cause.

[38] With respect to the issue of costs of the September 19, 2017, motion the focus of the motion was the contested relief of reciprocal inspections. The defendants were successful on that issue. Certain timetabling issues were addressed on consent. Costs of the May 5, 2017, motion were also addressed and it was determined that there should be no costs of the May 5, 2017, motion.

[39] I am awarding the defendants some costs with respect to the September 19, 2017, motion where the main contested issue was decided in favour of the defendants. In all of the circumstances of the September 19, 2017, motion, I am satisfied that payment other than within 30 days would be more just. Costs of the September 19, 2017, motion are fixed in the all-inclusive amount of $800.00, payable by the plaintiff to the defendant Mauro in the cause and fixed in the further all-inclusive amount of $800.00, payable by the plaintiff to the Vaughan defendants in the cause.

[40] With respect to the issue of costs of the within motion I am satisfied that the plaintiff is entitled to some costs of the within motion. The plaintiff was substantially, but not entirely, successful on the motion. Costs of the within motion are fixed in the all-inclusive amount of $2,000, of which $1,200.00 is payable by the Vaughan defendants and $800.00 is payable by the defendant Mauro. In my view this amount is a fair and reasonable amount that the defendants could expect to pay in all of the circumstances. The costs are payable to the plaintiff in the cause.

[41] With respect to the plaintiff’s request for $10,000.00 for costs thrown away, I am reserving the issue of these costs to the trial Judge. The trial Judge will be in a better position to determine whether there are any such costs thrown away and, if so, the cause of any costs thrown away and whether any such costs ought to be paid.

Master B. McAfee

Date: October 5, 2017