CITATION: Scaffidi-Argentina v. Tega Homes Developments Inc., 2017 ONSC 6530
COURT FILE NO.: 12-53886
DATE: 2017/11/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CARMEN SCAFFIDI-ARGENTINA, MICHAELANGELO SCAFFIDI-ARGENTINA, SHEILA SCAFFIDI-ARGENTINA and MARISSA SCAFFIDI-ARGENTINA – PLAINTIFFS
AND
TEGA HOMES DEVELOPMENTS INC., GOODEVE MANHIRE INC., GOODEVE MANHIRE PARTNERS INC., PATERSON GROUP INC. and THE CITY OF OTTAWA - DEFENDANTS
BEFORE: Madam Justice Liza Sheard
COUNSEL: Elizabeth Ackman for the Defendants/Moving Parties, Goodeve Manhire Inc. and Goodeve Manhire Partners Inc.
Stephanie Drisdelle for the Defendant/Responding Party, Tega Homes Developments Inc.
HEARD: October 23, 2017
ENDORSEMENT on UNDERTAKINGS AND REFUSALS MOTION
[1] Goodeve Manhire Inc. and Goodeve Manhire Partners Inc. (collectively “GM”) bring this motion seeking, in part, an order requiring Tega Homes Developments Inc. (“Tega”) to answer questions refused by Christopher Simpson on his examination for discovery on May 31, 2017. GM also seeks an order extending the date for delivery of GM’s expert report responding to the Becker Report to 15 days after the receipt of answers to questions refused or 15 days after the date of this motion, if no refusals are ordered to be answered.
Background
[2] Following the Case Conference heard on April 5, 2017, this Court granted leave to Tega to serve and rely upon the expert report authored by N.K. Becker Incorporated referred to as the (“Becker Report”). Tega had served the Becker Report on February 27, 2017. A Case Conference was held on April 5, 2017 at the request of GM, which asserted that the Becker Report raised new defences not previously raised by Tega. At the Case Conference, GM submitted that further examinations for discovery would be required as a result of the late delivery of the Becker Report and that GM would also need to consider delivering a responding expert report. At the Case Conference, Tega took the position that all evidence had been disclosed on examinations for discovery and that no further discoveries were required, but did not oppose additional examinations, should GM believe that they were required.
[3] The late delivery of the Becker Report necessitated the adjournment of the liability trial, which had been scheduled to begin on May 8, 2017. At the Case Conference, Tega confirmed that if the Becker Report was allowed, it would withdraw the Art Engineering Inc. Report (the “Art Report”). Based on the submissions made at the Case Conference, Tega was granted leave to serve and rely upon the Becker Report at the liability trial. Paragraphs 17 and 18 of my Endorsement on the Case Conference further provided that:
[17] Should any of the other parties require further examinations as a result of the Becker Report, unless the parties agree otherwise, those examinations shall be conducted in the weeks previously scheduled for trial namely the weeks of May 8 and 15, 2017. (emphasis added)
[18] Any party seeking to serve a report responding to the Becker Report, shall serve that report on or before September 1, 2017. Thereafter, should any other party, including Tega, seek to serve or use any other expert report, they may do so only if the parties consent, or failing consent, if a motion for leave to file an additional supplementary report is served by September 30, 2017. That motion should be scheduled to be heard by me.
GM’s Motion
[4] GM prepared charts of the refusals and undertakings for use on the motion. The “Chart of Questions Refused”, “Chart of Questions Contained in Exhibit 1” and “Chart of Undertakings” are attached to this Endorsement as Schedules “A”, “B” and “C”, respectively.
[5] In submissions, counsel for GM identified three general categories of questions refused: (1) questions relating to the content of the Becker Report (described below); (2) questions that do not relate to the Becker Report; and (3) questions relating to the Art Engineering Inc. Report.
Questions relating to the Art Engineering Inc. Report
[6] GM questioned Mr. Simpson about the Art Report, some of those questions were refused and were the subject of this motion.
[7] One question related to whether Tega was going to withdraw the Art Report. That issue was resolved prior to the hearing of the motion and counsel agreed that the motion was to be argued on the basis that Tega has undertaken not to call anyone from Art Engineering Inc. or to rely upon the Art Report. Despite that, GM takes the position that an expert report cannot be withdrawn and that GM was entitled to examine the Tega witness about the Art Report. GM relies on the decision of Andreasen v. The Corporation of the City of Thunder Bay, 2014 ONSC 314, for its position that that a party cannot “withdraw” an expert report.
[8] The facts in this case differ from those in Andreasen. In Andreasen, the issue was whether a party was obliged to disclose the foundational information underlying an expert report when that party was uncertain as to whether or not they would call that expert to give evidence at trial. The motions were brought at the opening of trial and the party had not undertaken not to call the expert witness nor had the party withdrawn the expert report in question. The court concluded that disclosure of the foundational information underlying an expert’s report did not depend on whether or not the expert would testify at trial: Once the report had been served, litigation privilege was waived and, even if an undertaking had been given not to call that expert, the fundamental information underlying the expert’s report had to be produced.
[9] Here, Tega made it clear at the Case Conference that it was withdrawing the Art Report. As reflected in my Endorsement, GM participated in the Case Conference, but did not object to Tega’s position that, if leave were given to Tega to rely upon the Becker Report, it would withdraw the Art Report. It is therefore disingenuous for GM to now argue that Tega cannot withdraw the Art Report.
[10] On the motion, GM argued that it needs to know why Tega was withdrawing the Art Report and to have Tega’s position on what portions of the Art Report, if any, are wrong. GM says that it needs that information to better understand the case it has to meet, and also to consider whether or not to call the author of the Art Report to give evidence for GM. None of these reasons relates to the late delivery of the Becker Report.
[11] It is difficult to see the relevance or need for GM to be provided with the foundational information in support of the Art Report, (assuming that information cannot be discerned from the report itself) when Tega withdrew the Art Report, without objection from GM, and has undertaken not to call its author or rely upon it. Moreover, questions relating to the Art Report fall outside of the anticipated scope of the additional discoveries, which were permitted for the limited purpose of allowing GM to retain its expert to prepare a report to respond to the Becker Report.
Disposition on questions relating to the Art Report
[12] For the reasons set out above, I conclude that the questions asked with respect to the Art Report were properly refused.
Questions refused on the basis that they were unrelated to the Becker Report and covered old ground
[13] Tega refused to answer certain questions put to Mr. Simpson on the basis that the issues had already been canvassed on Mr. Simpson’s prior examination for discovery and that the question had either been asked, or could have been asked, at that time. Tega’s position is that the right to conduct this further examination of Mr. Simpson was not intended to provide GM with an opportunity to ask questions unrelated to the Becker Report that it had not thought to ask when it first examined Mr. Simpson.
[14] GM’s position was that the questions it asked were new, and not a repetition. Further, GM submits that it ought to be permitted to ask these questions because of a change in circumstances: after the first examinations for discovery, Tega assumed carriage of the defence of Dufresne Piling Co. (1967) Ltd., which Tega had originally named as a third party.
[15] At the Case Conference, the position taken by GM was that it needed the right to conduct further examinations for discovery by reason of the late delivery of the Becker Report. GM did not assert that it required further examinations because Tega had assumed the defence of the third party claim against Dufresne. The right to conduct a further examination of Tega was granted for the reasons given following the Case Conference. It was never intended to be unlimited in scope.
Disposition
[16] For the reasons set out above, Mr. Simpson, as Tega’s representative, properly refused to answer questions asked by GM that related to issues that were, or could have been, canvassed at Mr. Simpson’s earlier examination for discovery.
Questions refused relating to the Becker Report
[17] This decision does not need to address certain questions identified in the motion materials, which have been crossed out or otherwise marked on the attached Schedules. Those are the questions that GM chose not to pursue answers to, and the questions that Tega had answered or agreed to answer: question #1145, at pages 305–306, and question #1163, at pages 323–325. Below is the decision respecting the balance of the questions refused and to which GM sought an answer.
i. Refusal to provide retainer letter to Dr. Becker
[18] One question that was refused was the request to produce the instructions given by Dr. Becker’s counsel. GM submitted that rule 53.03(2.1)3 requires production of the retainer letter or letter of instructions sent by Tega’s counsel to Dr. Becker; it is not enough for those instructions to be summarized or paraphrased in the expert’s report.
[19] Tega’s position is that the rule does not require production of the retainer letter. Tega relies on the recent decision in Moore v. Getahun, 2015 ONCA 55, in which the court confirmed that communications between counsel and expert witnesses “attract the protection of litigation privilege… Where the dominant purpose of the communication is to prepare for litigation” (at para. 68). At paragraph 76, the Court in Moore applied the principles as set out at paragraphs 37 and 44 of Blank v. Canada (Department of Justice), 2006 SCC 39:
…litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.” Litigation privilege yields where required to meet the ends of justice, and “[i]t is not a black hole from which evidence of one’s own misconduct can never be exposed to the light of day.”
[20] The Court in Moore explains that “[W]here the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, the court can consider disclosure of such discussions.” On the motion, GM made it clear that it is making no such allegations.
[21] The question of whether a party is required to produce the letter of instructions sent to its expert was squarely addressed in the recent decision of O’Bonsawin J. in Maxrelco Immeubles Inc. v. Jim Pattison Industries Ltd., 2017 ONSC 5836. O’Bonsawin J. concluded that, in accordance with Moore, absent a foundation to support a suspicion that counsel improperly influenced the expert, there was no obligation to produce the instruction letter. She further concluded that rule 53.03(2.1)3 was satisfied when the information required by that rule was set out in the expert report itself.
Disposition
[22] I conclude here that rule 53.03(2.1)3 was satisfied when the information required by that rule was set out in the Becker Report itself: Dr. N.K. Becker’s letter to counsel for Tega, dated February 7, 2017, which is the first page of the Becker Report (attached as Exhibit E to the affidavit of Kate Genest sworn October 10, 2017), confirms his instructions.
ii. Questions respecting the Becker Report itself
[23] A number of the questions refused related to the alleged “monitoring” performed by GM and others, referred to on page 1 of the Becker Report. Tega asserts that the Becker Report itself discloses the foundational information upon which Dr. Becker based his opinion, which is referenced in and forms part of the Becker Report.
[24] In its responding materials, Tega provided a copy of the first page of all appendices that were attached to and served with the Becker Report. The appendices clearly set out the documents and information considered by Dr. Becker.
[25] The Becker Report complies with the rule 53 requirement that the expert report provide a description of the factual assumptions on which the opinion is based; a description of any research conducted by the expert that led him or her to form the opinion and a list of every document, if any, relied on by the expert in forming the opinion.
[26] In support of their opposing arguments on this issue, both parties relied upon the Court of Appeal decision in Conceico Farms Inc. v. Zeneca Corp., 2006 CanLII 25345 (ON CA), 82 O.R. (3d) 229 which considered the proper scope of discovery pursuant to rule 31.06 (3). The court stated that a party is entitled to obtain discovery of “the foundational information for the findings, opinions and conclusions” (at para. 19) but noted that, “as a practical matter, the obligation to disclose the information in a document is often discharged by simply producing the document. Indeed, probably because of this, much of the case law concerning rule 31.06 (3) refers to the rule requiring ‘production’” (at para. 12).
[27] Here, Tega submits that GM has been provided with the requisite foundational information, which is attached to and forms part of the Becker Report. For that reason, Tega refused to answer certain questions asked relating to the Becker Report. GM provided Tega with a list of questions in advance of Mr. Simpson’s examination which is marked as Schedule “B” to this endorsement. For the reasons set out above, I find that GM had the foundational information respecting the Becker Report and that Tega properly refused questions 1, 2, 3, and 4(a) identified in Schedule “A”.
[28] Questions 5(a) and 5(b) on Schedule “B” relate to “monitoring” performed by GM. I accept the submissions of Tega that, on a reasonable reading of page 1 of the Becker Report, it is clear that the use of the word “monitored” does not refer to specific monitoring records but describes the actions taken by GM, and the other independent engineering consultants, to monitor damages to the building. I conclude that the answer given by Tega is appropriate and that no further answer is required to those questions.
[29] The balance of the questions refused as listed on Schedule “B”, and for which GM pursued an answer, (questions 6(a), 8, 14(d), were not pursued, and question 21 was answered) appeared not to go to the factual basis or foundation for the opinion given by Dr. Becker but, rather, were in the nature of a cross-examination on the Becker Report.
[30] On the motion, GM submitted that there was a policy basis for requiring that those questions be answered: that it is in the best interest of the administration of justice for the expert report to be clearly understood by the opposing parties so that its responding expert’s report could be focused and offer the greatest assistance to the Court.
[31] Notwithstanding the submissions as to the alleged potential benefit to the opposing party’s expert, and in turn, to the Court, it must be remembered that the reason that GM was in a position to be putting such questions to the Tega witness is the late delivery of the Becker Report. GM did not ask for, nor was it granted, leave to conduct an indirect cross-examination of Dr. Becker on his report by way of an examination for discovery of Mr. Simpson. It would be unfair to allow GM to conduct such an examination when no reciprocal right is available to Tega.
[32] As made clear at the Case Conference and in my Endorsement on the Case Conference, the additional examination for discovery was intended to be conducted, if necessary, and in order to avoid any unfairness to GM arising from the late delivery of the Becker Report, which, GM alleged, raised defences of which GM had not previously been aware. That examination was not intended to offer GM a dry run at cross-examining Tega’s expert. To allow GM to do so, could give an unfair advantage to GM and to its own expert. Certainly, the parties are free to agree that their experts speak with one another to identify areas upon which the experts do and do not agree. This approach is sometimes referred to as “hot-tubbing”.
Disposition on the balance of questions refused relating to the Becker Report
[33] For the reasons outlined above, and except with respect to questions withdrawn by GM, answered by Tega, or agreed to be answered by Tega, I conclude that Tega properly refused to answer the questions set out in Schedule “B”.
Extension of time to deliver GM’s reply expert report
[34] GM asked for an order allowing for an extension of 15 days from the date of the hearing of this motion to deliver a responding report. At the hearing of the motion, counsel were in agreement that any extension of time that may be required will not affect the ability of the parties to be ready for any pre-trial and/or, should the action not settle, to be ready to proceed with the trial, now scheduled to begin in mid-January 2018.
[35] To avoid the need for any further motions on this issue, leave is hereby granted to GM to deliver its report responding to the Becker Report within 15 days of the release of this Endorsement.
Costs
[36] In its submissions regarding costs, GM identified that some answers were given the Friday before the motion was heard. One such answer was the undertaking not to rely on the Art Report. Despite the position taken by Tega at the Case Conference, as seen at pages 318–319 of the transcript of the examination for discovery of Mr. Simpson held on May 31, 2017, there was a distinct lack of clarity in the position then taken by Tega’s counsel with respect to the withdrawal of the Art Report.
[37] At the risk of being repetitive, it was clear in the submissions made at the Case Conference, and as reflected in my Endorsement of April 12, 2017, that the delivery and reliance upon the Becker Report was based upon Tega withdrawing the Art Report. There was no reason for any lack of clarity or, frankly, for any delay in Tega confirming to GM what it had made clear to this Court at the April 5, 2017 Case Conference.
[38] I will not repeat the Court’s view, expressed above, respecting the position taken by GM on this motion that Tega cannot withdraw the Art Report.
[39] Overall, GM has been unsuccessful on this motion. As should be clear from this Endorsement, the Court has concluded that GM attempted to go well beyond the scope of the examination that had been contemplated and discussed at the Case Conference.
[40] In accordance with the rules, accepted principles, and jurisprudence, costs should follow the event.
[41] At the conclusion of the motion, counsel provided the Court with their Cost Outlines. These were kept in sealed envelopes and not opened by me until I had made my decision on the merits of the motion.
[42] Tega’s cost outline discloses actual legal fees on the motion of $5,154.50. Tega’s calculates it substantial indemnity fees at 90% of the actual: $4,639.05, and partial indemnity fees at 60%: $3,092.70. In all cases, Tega claims full disbursements in the amount of $283.63, as well as HST calculated at the rate of 13% on the entire cost award.
[43] GM’s cost outline discloses actual legal fees of $11,159.50 plus a further $770.00 representing two hours for the motion, disbursements of $335.15 and HST calculated on the total amount. GM uses a partial indemnity rate of approximately 73%.
Disposition on Costs
[44] Applying the principles under rule 57 of the Rules of Civil Procedure, Tega is awarded its costs of this motion on a partial indemnity rate (60%) in the amount of $3,778.38 ($3,092.70 + plus 13% + $283.63), payable forthwith by GM.
L. Sheard J.
Date: November 14, 2017
Court File No. 12-53886
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CARMEN SCAFFIDI-ARGENTINA, MICHAELANGELO SCAFFIDI-ARGENTINA, SHEILA SCAFFIDI-ARGENTINA and MARISSA SCAFFIDI-ARGENTINA
Plaintiffs
- and -
TEGA HOMES DEVELOPMENTS INC., GOODEVE MANHIRE INC., GOODEVE MANHIRE PARTNERS INC., PATERSON GROUP INC. and THE CITY OF OTTAWA
Defendants
refusals chart
refusals
Refusals to answer questions on the examination of Christopher Simpson held May 31, 2017
Issue & relationship to pleadings or affidavit (Group the questions by issues.)
Ques. No.
Page No.
Specific question
Answer or precise basis for refusal
Goodeve’s Position on Why Questions should be answered
Disposition by the Court
897
228-231
To provide Tega’s position with respect to the questions set out in Exhibit 1 as if they had been asked on the record.
Tega has provided its position. The majority of the questions are refused.
Goodeve’s position is set out on the separate chart of Exhibit 1 questions.
Liability: Factual underpinning of the opinion set out in the Becker report; Dr. Becker’s findings including factual information considered and relied upon by Dr. Becker and foundational information.
1011
257-258
Could the wall have moved between the installation of the sheet pile wall and the excavation up to it.
1056
269-271
Was there provision in the encroachment agreement drafted by Simpson that provided Tega would repair or correct any problems associated with the installation of tiebacks
1057
271
Was it contemplated from the outset that if damage was caused to adjacent properties as a result of construction, encroachment agreements from Tega to those adjacent property owners would be needed in order to rectify any problems that occurred.
1073
275-276
To ask Mr. Beatty if he recalls if the plaintiffs expressed concern that vibration might cause damage or might cause tenants to depart
1073
278-279
To ask Mr. Beatty whether Carmen told him that the gross rent of the property was between $60,00.00 and $70,000.00 per year.
1084
283
To ask Mr. Beatty to confirm that he told Carmen there was no way Tega would guarantee rent, so a different system was going to be used.
1106
290
Without wishing to know the legal advice, was a solicitor consulted with respect to the indemnity/comfort letter Tega provided to the plaintiffs.
1133
299
Was there any further letter sent outlining Tega’s position in reaction to being told by Carmen Scaffidi-Argentina, or his insurer, not to proceed with the comfort letter
1145
305-306
Under Advisement
To distinguish between what Dr. Becker actually witnessed and what he concludes in his report. To advise specifically what date Becker was on site, what he saw, when he saw it and whether he made any notes about it. To produce notes if any were made and to advise if he made any other kind of communication or record of his visits to the property and what he observed.
1160
317
To produce the instructions given to Dr. Becker by Mr. Banks or his firm prior to Tega assuming the retainer.
This question was included in Exhibit 1. The answers was that no written instructions were provided by Mr. Banks.
The question was not restricted to written instructions. What verbal instructions did Dr. Becker receive from Mr. Banks?
1160
317-322
With respect to the report from Art Engineering Inc. dated March 12, 2015, Goodeve’s position is that having served this report, it cannot be withdrawn by Tega in the sense that questions can still be asked about it. Goodeve wishes to
know which of the assertions made by Art Engineering Tega now says are incorrect. Tega first to confirm whether in fact it is withdrawing the Art report. If in fact Tega is not withdrawing the Art report and intends to continue to rely on it, taking the position that some parts are inaccurate, to advise of the particulars of which parts Tega now says are inaccurate [Art report marked as Exhibit 2].
1163
323 - 325
To provide a list of all “participant” experts on which Tega intends to rely at the trial of this action.
On the record Mr. Bertschi disagrees this is a relevant or proper question, but seems to agree he will give the list.
Goodeve is unclear on whether the list will be provided or not. It has not been provided to date.
Court File No. 12-53886
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CARMEN SCAFFIDI-ARGENTINA, MICHAELANGELO SCAFFIDI-ARGENTINA, SHEILA SCAFFIDI-ARGENTINA and MARISSA SCAFFIDI-ARGENTINA
Plaintiffs
- and -
TEGA HOMES DEVELOPMENTS INC., GOODEVE MANHIRE INC., GOODEVE MANHIRE PARTNERS INC., PATERSON GROUP INC. and THE CITY OF OTTAWA
Defendants
CHART OF QUESTIONS CONTAINED IN EXHIBIT 1
Issue
Ques. No.
Page No.
Specific question
Answer or precise basis for refusal
Goodeve’s position on why question should be answered
Disposition by the Court
Dufresne’s position from Tega’s view
1
Does Tega agree that it does not challenge the factual assertions set out in Dufresne’s examination for discovery and answers to undertakings delivered to date.
2
Does Tega agree that Dufresne is experienced and can provide comment and opinion on its shoring and work at the site
3
If there is disagreement with anything that Dufresne says, will Tega advise with particularity and cite the reasons for its disagreement making reference to page number, etc.
Dr. Becker Becker Report: Questions to be put by Tega to Dr. Becker
4
Request for full particulars with respect to the following questions, including dates, places, people, time, documents, etc. as applicable:
4(a)
Produce the instructions given to Dr. Becker by Mr. Banks or his firm and by BOS firm.
The answer provided was “Dr. Becker advised that he did not receive any written instructions from Mr. Banks. With respect to the instructions provided by BOS, the answer was that same are contained in Dr. Becker’s report.
The answer provided is insufficient. The question was not restricted to written instructions. Tega should advise what verbal instructions Mr. Banks or his firm provided to Dr. Becker.
Dr. Becker’s report does not attach as an appendix any written instructions from BOS law firm. It is not clear what the answer is referring to when it says the instructions from BOS are contained in Dr. Becker’s report. Tega should advise with particularity.
4(b)
What experience does Dr. Becker have as a structural engineer for excavations – give particulars
4(c)
What experience does Dr. Becker have as a shoring contractor – give particulars.
4(d)
What experience does Dr. Becker have as a supervisor of shoring contractors – give particulars.
4(e)
What experience does Dr. Becker have as a soil engineer – give particulars
4(f)
With regard to the above what experience does Dr. Becker have in these fields in Ottawa – give particulars.
4(g)
What training has Dr. Becker had in excavations.
Issue
Ques. No.
Page No.
Specific question
Answer or precise basis for refusal
Goodeve’s position on why question should be answered
Disposition by the Court
Becker Report
With respect to monitoring performed by Goodeve and others, referred to on Page 1 of the Becker Report:
5(a)
What records of this monitoring is Dr. Becker referring to?
The answer provided was “with respect to your inquiry as to what records Dr. Becker is referring to regarding the monitoring of GM and others, I refer you to the compendium of documents that Dr. Becker received and reviewed as noted in his report.”
The answer provided is insufficient and unhelpful. Tega should inquire with Dr. Becker as to specifically what monitoring records Dr. Becker was referring to on page 1 of his report, so that Goodeve can properly understand Dr. Becker’s report.
5(b)
Does Tega or Dr. Becker have records from monitoring that record the extent or pattern of cracking in either the Florence or 417 Gladstone properties?
6(a)
Becker Report Page 2: June 2011 City Order – peer review reqd by independent 3rd party Geotech Eng. What report is being referred to? Does Dr. Becker have comments on it?
6(b)
Did Dr. Becker consider what impact the Rochon bracing in the Florence building might have had on the differential movement being experienced in the building.
Becker Report Page 3: What is the “significant damage” occurred at the 417 Gladstone property which is being referred to.
Becker Report Page 5: Are there examples of projects that Dr. Becker has been the structural engineer responsible for the temporary shoring or the structural design involving multi-storey underground parking garages? Are there projects on which Dr. Becker has collaborated with shoring contractors for the construction of such underground structures?
Becker Report Page 8: Paterson recommended using an active earth pressure coefficient of 0.5. What does Dr. Becker understand was used in the Goodeve design for this project?
Becker Report Pages 10, 11, 14: Dr. Becker references different versions of drawings but states on page 14 that it is typical in a building design for multiple versions of drawings to be produced during the design phase. Do all of the versions he refers to govern the construction of this project? Are there versions which are not relevant to the final design? Which one governs the construction? Does the Plot Date matter? The Revision Date? What value is the reference to versions prior to this version?
Dr. Becker Report Page 14: Dr. Becker states Goodeve did not specify the sequence of installation or removal – is he suggesting there are any connections between either sequence and the cracking at adjacent properties?
12(a)
Dr. Becker Report Page 15: 4.3b – “driving piles through frozen soil” – what is the total depth of pile driving? What is the depth of frozen soil? Is the impact of frozen soil likely to have had material impact? Does Dr. Becker have temperature records?
12(b)
Does Dr. Becker believe there is significance to the Savasta building cracking in February before excavation, but not the Florence building?
12(c)
Florence cracking first occurred on May 9. Depth of excavation to first waler (says this is 2.4 m (8ft. in 4.5(b) on page 17) – Where is this relative to the Florence basement?
13(a)
Dr. Becker Report Page 16: “Only 13 mm” rain July 6 – Was this the heaviest rainfall recorded in July? Had there been other rainfalls in the prior 2 weeks [note June 23/24 – 50 mm: June 28 – 8mm] that could have saturated the ground before this one? Could they cumulatively make the total rainfall critical on site?
13(b)
Do the photos from July 5 show standing water in the excavation?
13(c)
Does Dr. Becker dispute that Goodeve and Paterson recorded heavy heavy rain at the site July 5-7 (repeated on page 19 in (h) ).
13(d)
Does Dr. Becker recognize that Paterson also reported the heavy rain on July 6?
14(a)
Becker Report Page 17: Does Dr. Becker agree that deluges can be local? Was he at or near the site on July 6 or 7 2011? What is he suggesting would be the required “evidence of flooding within or around the excavation” that would be needed if significant rainfall had occurred?
14(b)
What would account for the accumulated mud around the excavator bucket in photo 3?
14(c)
“normally photos are taken by engineers who provide General Review services…” - is Dr. Becker suggesting that the absence of photos from Goodeve represents defective engineering?
14(d)
Did the absence of photos contribute to the cracking in the house?
15(a)
Page 18/19
June 6 photo – Dr. Becker mentions there is no corner brace at the lower waler. Was there a waler installed? When was soil excavated to the level that would allow the lower waler to be installed? When was the lower waler installed. Was there a corner brace at the lower waler as well?
15(b)
June 29 photo with worker welding – “indicates that the shoring adjacent to the Florence house was not fully braced in accordance with the design until that date”. When was soil excavated to the level that would allow the lower waler to be installed? When was the lower waler installed? Was there a corner brace at the lower waler as well? Is Dr. Becker certain that brace was not welded on June 28 and the worker was doing some touch-up on June 29?
15(c)
July 5 photo – Dr. Becker mentions a corner brace at the upper waler. Was there a corner brace at the lower waler as well that he did not mention?
15(d)
In the July 5 photos is there any evidence that the lagging supporting the Florence property had displaced immediately south of the Steel Sheet piling.
15(e)
In the July 6 photos is there any evidence that the lagging supporting the Florence property had displaced immediately south of the Steel Sheet piling.
15(f)
July 6/7 photos – house cracking at south end of west wall: July 8 – cracking formed at north end – Does this sequence indicate where the worst settlement occurred first?
15(g)
Could Dr. Becker confirm the process he used to estimate the raker spacing of 7.6 m/25ft. in paragraph (l).
16(a)
Becker Report Page 20: Dr. Becker has indicated there are deviations between the as-built conditions he has derived from photographs and the details shown on the Goodeve drawings. Does he draw a connection between the cracking in the houses and any of these deviations? If so, what conclusion does he draw?
17(a)
Becker Report Page 26: OBC 4.2.5.6 “loss of ground due to water or any other cause shall be prevented” – clearly makes loss of ground the responsibility of the excavator, so that if it did happen Dufresne is responsible. But is it realistic to believe that when excavating there will never be surprises?
18(a)
Becker Report Page 30-34: These are comments on design calculations made in January 2011 and March 15: Was this the design upon which the shoring was installed or was there a design done after this that was used for the construction?
18(b)
Which parts of Dr. Becker’s comments are relevant to the final design or as-built conditions at the Florence house? For example, was the design at the Florence house based on a K factor of 0.3?
18(c)
Would Dr. Becker agree that the soldier pile and lagging in the backyard was designed based on the 0.c value but the Steel Sheet piling directly against the house was designed using 0.5 as recommended.
Becker Report Page 35: Tab 25 – was this the design that governed the rakers for the Florence house shoring?
20(a)
Becker Report Page 36: Item f – the comments related to the support for the north end of the waler. Was the rest of the Steel Sheet piling shoring construction consistent with the assumptions that Dr. Becker refers to with respect to the excavation sequence?
20(b)
Would the conditions at the north end of the walers have impacted the SW corner of the house?
It is suggested by counsel that Dr. Becker is also a fact witness – please provide all the facts in his possession with dates and times, etc. If he has notes or any other correspondence setting out those facts, produce same.
Court File No. 12-53886
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CARMEN SCAFFIDI-ARGENTINA, MICHAELANGELO SCAFFIDI-ARGENTINA, SHEILA SCAFFIDI-ARGENTINA and MARISSA SCAFFIDI-ARGENTINA
Plaintiffs
- and -
TEGA HOMES DEVELOPMENTS INC., GOODEVE MANHIRE INC., GOODEVE MANHIRE PARTNERS INC., PATERSON GROUP INC. and THE CITY OF OTTAWA
Defendants
UNDERTAKINGS chart EXAMINATION FOR DISCOVERY OF CHRISTOPHER SIMPSON HELD MAY 31, 2017
Ques. No.
Page No.
Specific question
1009
256-257
To advise of the date Tega understands Dufresne started monitoring
1160
316
To produce a copy of the instructions given to Dr. Becker by counsel for Tega.
1163
319
To advise whether Tega is withdrawing the report of Art Engineering dated March 12, 2015 (Exhibit 2)
1163
319
To produce a copy of the instructions given to Art Engineering in relation to its report dated March 12, 2015 (Exhibit 2)
1163
325
To provide a list of persons Mr. Bertschi describes as participant experts who were at the scene; and identify what parts of their reports Tega intends to rely upon.
1161
328-329
To the extent that Tega intends to call any witnesses to identify who they are, provide their addresses and a summary of their evidence: Request for this information be delivered 90 days prior to trial.
1163
332
To provide Tega’s position on the following: If in fact Goodeve is found not to be negligent in this action, would Goodeve still be subject to the tort of nuisance.
CITATION: Scaffidi-Argentina v. Tega Homes Developments Inc., 2017 ONSC 6530
COURT FILE NO.: 12-53886
DATE: 2017/11/14
SUPERIOR COURT OF JUSTICE-ONTARIO
RE: CARMEN SCAFFIDI-ARGENTINA, MICHAELANGELO SCAFFIDI-ARGENTINA, SHEILA SCAFFIDI-ARGENTINA and MARISSA SCAFFIDI-ARGENTINA - Plaintiffs
AND
TEGA HOMES DEVELOPMENTS INC., GOODEVE MANHIRE INC., GOODEVE MANHIRE PARTNERS INC., PATERSON GROUP INC. and THE CITY OF OTTAWA - Defendants
BEFORE: Madam Justice Liza Sheard
COUNSEL: Elizabeth Ackman for the Defendants/Moving Parties, Goodeve Manhire Inc. and Goodeve Manhire Partners Inc.
Stephanie Drisdelle for the Defendant/Responding Party, Tega Homes Developments Inc.
ENDORSEMENT ON undertakings and refusals motion
L. Sheard J.
Released: November 14, 2017