Court File and Parties

CITATION: York Regional Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., et al, 2017 ONSC 6138

COURT FILE NO.: CV-16-548539

DATE: 20171013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YORK REGIONAL STANDARD CONDOMINIUM CORPORATION NO. 1206, Plaintiff

AND:

520 STEELES DEVELOPMENTS INC., 7 BRIGHTON PLACE INC., KANTIUM DEVELOPMENT & CONSTRUCTION INC., LIBERTY DEVELOPMENT CORPORATION, DARCON INC., MONDCONSULT LIMITED, YORK REGION COMMON ELEMENT CONDOMINIUM 1210, AFFINITY ALUMINUM SYSTEMS LTD., JIT PROFESSIONAL SERVICES INC., SIU HONG (ERNIE) LEUNG, P. ENG., QUEST WINDOW SYSTEMS INC., ROUSLAN TCHOLII, P. ENG., YA PING (TOM) ZHANG, P. ENG., TOM’S STRUCTURAL STEEL DETAILING, YA PING (TOM) ZHANG STRUCTURAL ENGINEERING & SOLUTION DEVELOPERS, NASSER HEIDARI, P. ENG., NCN ENGINEERING SERVICES LTD., NCN ENGINEERING SERVICES INC., TORSTEEL COMPANY LIMITED, VORSTADT INCORPORATED, VORSTADT’S SUPERIOR ROOF, VORSTADT’S SUPERIOR SHEET METAL LTD., DURON ONTARIO LTD., C&A TEDESCO WATERPROOFING INC., SAVERINO GENERAL CONTRACTORS LTD., ADVANCED PRECAST INC., MUKESH PATEL, P. ENG., MRP DESIGN SERVICES, DELGANT (CIVIL) LTD., DELGANT CONSTRUCTION LTD., DEGLANT LIMITED, RESFORM CONSTRUCTION LTD., GREEN VALLEY INC., GLOBAL PLUMBING & HEATING INC., SYSTEM DRYWALL & ACOUSTICS, MAYFAIR ELECTRIC LTD., YORK SHEET METAL LTD., ADJELEIAN ALLEN RUBELI LIMITED, SIGMUND SOUDACK & ASSOCIATES INC., UNITED ENGINEERING INC., A&G ENGINEERING LTD., DISANO SPRINKLER DESIGN LIMITED, EXP SERVICES INC./LES SERVICES EXP INC., BUILDING SCIENCES INC., RAFAEL & BIGAUSKAS ARCHITECTS INC., SEDUN+KANERVA ARCHITECTS INC., STRYBOS BARRON KING LTD., STRYBOS ASSOCIATES LTD., SIMERRA PROPERTY MANAGEMENT INC., SIMERRA PROPERTY MANAGEMENT LTD., 360 COMMUNITY MANAGEMENT LTD., BLANDFORD CONSTRUCTION SERVICES INC., MARNICK FIRE PROTECTION INC. and DEFENDANTS #1, #2, #3, #4, #5, #6, #7, #8, #9, #10, #11, #12, #13, #14, #15, #16, #17, #18, #19, and #20, Defendants

BEFORE: Sanfilippo J.

COUNSEL: William Sharpe and Clifford Blundell, lawyers for the Plaintiff/ Respondent/ Moving Party Gavin Tighe and Anna Husa, lawyers for the Defendant/ Moving Party/ Respondent Liberty Development Corporation Alexander Paul¸ lawyer for Darcon Inc.

HEARD: September 29, 2017

REASONS FOR DECISION

A. Overview

[1] This action is brought by York Regional Standard Condominium Corporation No. 1206 (“YRSCC No. 1206”) against 53 defendants for damages alleged to result from alleged construction deficiencies in a condominium building known municipally as 520 Steeles Avenue West, Vaughan (the “Condominium Building”).

[2] The defendant Liberty Development Corporation (“Liberty”) brings this motion pursuant to Rule 20 for summary judgment seeking dismissal of this action, as well as any crossclaims as against Liberty, on the basis that there is no genuine issue requiring a trial regarding Liberty.

[3] Liberty’s summary dismissal motion is supported by a single affidavit of an officer of Liberty consisting of 27 paragraphs with no exhibits. Liberty’s succinct evidence is that it had nothing to do with the design, development, construction or sale of the Condominium Building, and entered into no contractual obligation in any way pertaining to the project that led to the construction of the Condominium Building. Liberty thereby denies that it can in any way be liable to the plaintiff, whether in contract, tort or otherwise.

[4] YRSCC No. 1206 alleges that other defendants were the developers, builders and vendors of the Condominium Building, namely 520 Steeles Development Inc., 7 Brighton Place Inc. and Kantium Developments & Construction Inc., and concedes that Liberty did not enter into any contract regarding the Condominium Building. However, the plaintiff pleads that Liberty acted in cooperation with certain of the developer defendants and has liability to the plaintiff as part of the group defined, for purposes of the plaintiff’s Amended Statement of Claim, as “Developers”.

[5] In response to a Request to Admit delivered on July 31, 2017, wherein Liberty requested the plaintiff’s admission that there is no contract in place between Liberty and the plaintiff, the plaintiff stated the theory of its case against Liberty as follows: “[t]he Defendant Liberty … acted as co-venturer with Darcon Inc. in performing the construction management agreement.” In response to a requested admission that Liberty received no payment from the plaintiff, the plaintiff continued, stating: “[i]n being a co-venturer and co-performer of the construction management agreement … Liberty … assumed the obligations of providing services for the benefit of the Plaintiff.”

[6] YRSCC No. 1206 advances a cross-motion to stay, suspend or quash Liberty’s summary judgment motion on the bases that Liberty’s motion is brought contrary to the direction of the case management judge, Liberty has not made proper documentary production and Liberty has improperly refused questions posed by the plaintiff in its cross-examination of the Liberty affiant and in the plaintiff’s conduct of examinations under Rule 39.03. As alternative relief in its cross-motion, the plaintiff seeks an order allowing the argument of a motion on the documentary production and examination questioning issues prior to the hearing of Liberty’s summary judgment motion.

[7] In its responding motion records, YRSCC No. 1206 delivered eight volumes totaling 2,141 pages of material. On the return of the motions, I was provided by YRSCC No. 1206 with a supplemental affidavit of Cindy L. Johnson, a paralegal with the office of the plaintiff’s counsel, which explains steps taken by the plaintiff’s counsel to search over 8,000 pages of documents produced by the defendants, and stored electronically, to identify any document where the word “Liberty” appears in the email address or in the body of the document. I was also provided with copies of examination transcripts and a compendium such that the motion and cross-motion involved 11 volumes of responding materials delivered by the plaintiff.

[8] The observation was not lost that the plaintiff’s submission on cross-motion that it had been improperly denied an opportunity to assemble a thorough responding record was argued on a platform of over 2,141 pages of responding material and volumes of examination transcripts.

[9] The materials presented to the court were cumbersome and complex for use by counsel in submission as they were reconstituted and brought forward from previous motions. The evidence in relation to the submission regarding alleged excessive restriction on production and examination was a small sub-set of a much larger mass. This resulted in the necessity to sift through voluminous records to locate the more limited material pertinent to the submissions made. Further, not all of the records presented to the court were available to opposing counsel in their current form.

[10] Although two hours were set aside for argument of Liberty’s motion for summary judgment, the entirety of this time, and more, was expended in argument of the plaintiff’s cross-motion to stay, suspend or quash Liberty’s summary judgment motion.

[11] After argument, I dismissed the plaintiff’s motion to stay, suspend or quash Liberty’s summary judgment motion, and endorsed the record accordingly, with further reasons to follow.

[12] I remain seized of Liberty’s motion for summary judgment, which will be returned to me for hearing at the first full motion court day available in 2018, to be coordinated.

[13] As there is some time delay before Liberty’s full-day motion for summary judgment can be heard, YRSCC No. 1206 may advance a motion for questions refused and/or for a further and better affidavit of documents, should the plaintiff consider this necessary. As I remain seized of Liberty’s summary judgment motion, any such motion can be brought before me on November 3, 2017, in accordance with the procedure set out herein, even though the motion is within the jurisdiction of a Master.

B. Analysis

[14] By Civil Practice Court Direction of D.A. Wilson J. dated May 19, 2017, the date of September 29, 2017 was fixed for the two-hour hearing of Liberty’s motion for summary judgment.

[15] Master Sugunasiri issued a Direction on August 30, 2017 on a case conference conducted to fix a timetable for the exchange of documents in the Liberty summary judgment motion. Master Sugunasiri ordered that “any arguments that the plaintiff has about lack of documents and answers to under advisements from 39.03 examinations can be made in response to the summary judgment motion.” I take from this that Master Sugunasiri heard the plaintiff’s submission that it had been unreasonably restricted from proper examination and that this issue was left to be argued by the plaintiff as part of its response to Liberty’s summary judgment motion.

[16] On September 14, 2017, Archibald J., heard submissions from the plaintiff concerning questions refused from the cross-examinations and examinations that had been conducted. Archibald J. directed as follows:

The cross-motion to hear the refusals arising from the cross examinations on August 23, August 28 and September 12 is refused. The issue of why and how the refusals occurred can be raised before the judge on the summary judgment motion on September 29, 2017. There is not enough time for that motion to occur before the 29th nor is it necessary to be brought. If the refusals should not have been made that may have an impact on the success of the summary judgment motion.

[17] Again, the plaintiff was directed that the issue of alleged improper restriction of examination entitlement, and the resultant argument that the record available on summary judgment is insufficient to allow for adjudication, ought to be addressed as part of a responding position in Liberty’s summary judgment motion. This recognizes that the moving party takes a risk in unreasonable restriction in the responding party’s development of the evidentiary record because to grant summary judgment the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings: Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275 (Ont. S.C.J.), Ghaeinizadeh (Litigation guardian of) v. Garfinkle, Biderman LLP, 2014 ONSC 4994 (Ont. S.C.J.), leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Ont. Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836, at para. 38 (Ont. S.C.J.); George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001, 112 O.R. (3d) 190 (Ont. S.C.J.).

[18] The plaintiff nonetheless submitted that its cross-motion was required and ought to be determined.

[19] The plaintiff’s submission that Liberty brought the summary judgment motion in contravention of case management directions was not sustainable on the record. Liberty’s delivery of its summary judgment motion had been authorized by D.A. Wilson, J., Archibald, J. and Master Sugunasiri.

[20] I was similarly not satisfied on the record presented that there were grounds, procedural or substantive, on which Liberty’s entitlement to advance a summary judgment motion ought to be restricted. I therefore denied the cross-motion advanced by the plaintiff to stay, suspend or quash Liberty’s summary judgment motion.

[21] From a practical standpoint, as the time available for the argument of Liberty’s summary judgment motion had been consumed in argument of the cross-motion and therefore required re-scheduling, and as the plaintiff conceded that if it were allowed an opportunity to argue a motion on questions allegedly improperly refused and inadequacies in production it would have no continued basis on which to assert restriction in development of the evidentiary record, I directed that the plaintiff may bring before me, in advance of the return of the summary judgment motion, any motion that it seeks to argue on questions refused and/or on the documentary production by Liberty.

C. Procedure

[22] On the eve of return of Liberty’s summary judgment motion, Liberty provided the plaintiff with what it considered to be ample response to the questions refused and the questions taken under advisement at the examinations and cross-examination conducted. The plaintiff did not have, in the circumstances, a full opportunity to consider these responses.

[23] If the plaintiff considers that Liberty has continued to unreasonably restrict its examination and production entitlement, and if this is incapable of being addressed through discussions between counsel, the plaintiff may bring before me on November 3, 2017 a motion on questions refused and/or on the documentary production by Liberty. Although this motion is within the jurisdiction of a Master, it is efficient that I hear this motion as I remain seized of Liberty’s summary judgment motion.

[24] In terms of the plaintiff’s anticipated motion on questions refused and/or on the documentary production by Liberty, the following procedure will apply:

(a) The plaintiff is required to deliver a concise motion record specific to the relief sought and may not re-deploy the omnibus, voluminous motion records submitted on its cross-motion and in response to Liberty’s summary judgment motion. The motion record is to contain only documents that are entirely focused on the relief sought with the expectation that it will be no more than a single volume;

(b) If the motion is on questions refused or improperly taken under advisement, the plaintiff must submit a chart of questions that references the disputed question by number and contains the question refused, the answer provided to date and the basis on which the answer or continued refusal is considered improper. If possible, the plaintiff will group the questions into substantive categories. A copy of the applicable transcript references must be attached, and not the entire transcript unless the entirety of the transcript is said to be material. It is doubtful that affidavit evidence is appropriate in such a motion and ought to be filed only if considered necessary;

(c) A compendium of all case management orders and directions must be delivered if the submission is intended to be made that there has been any breach of any case management order or direction;

(d) Only those pleadings between the parties to the motion need to be included in the motion record;

(e) The parties are required to deliver a factum of no more than ten pages and a brief of authorities;

(f) The time deadlines set out in the Rules for delivery of materials in relation to a motion of this nature will govern;

(g) Cost outlines for the motion must be exchanged between counsel in advance and brought to the motion for use in submission on costs;

(h) The motion, including cost submissions, must be argued by the moving party and all responding parties within the two hours allocated.

[25] In the event that the plaintiff no longer requires this motion, the court is to be notified so that the two hour time period allocated to this motion may be released to other matters.

D. Conclusion

[26] The plaintiff’s cross-motion to stay, suspend or quash Liberty’s summary judgment motion is dismissed.

[27] Costs of the plaintiff’s cross-motion are reserved to be heard on the return of Liberty’s summary judgment motion.

[28] Any motion that the plaintiff is advised to advance on questions refused and/or on the documentary production by Liberty is to be returned before me on November 3, 2017 in accordance with the procedure set out herein.

[29] Liberty’s motion for summary judgment will be returned to me for hearing at the first full motion court day available in 2018, to be scheduled through the motions office.

[30] Costs thrown away resulting from the necessity to reschedule Liberty’s motion for summary judgment are also reserved to be heard on the return of Liberty’s summary judgment motion.

Sanfilippo J.

Date: October 13, 2017