Zuppinger and Yan v. TSCC No. 2139 et al, 2017 ONSC 6771
CITATION: Zuppinger and Yan v. TSCC No. 2139 et al, 2017 ONSC 6771 COURT FILE NO.: CV-16-557031 (A2/B1/B2/C1) DATE: 20171110
SUPERIOR COURT OF JUSTICE – ONTARIO
B E T W E E N:
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: November 2, 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 Michael Currie, for the Defendant Tatiana Doubovsky Thomasina Dumonceau, 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. Tom Hanrahan, for the Fourth Party University Plumbing and Heating Ltd. Reine Reynolds, for the Fourth Party J.E. Coulter Associates Ltd. Eric Turkienicz, the Fourth Party Hidi Rae Consulting Engineers Inc. A.J. Billes, for the Fourth Party Page & Steeles – IBI Group Architects (Canada) Inc. Ashley Schmuker, for the Fifth Party Soberman Engineering Inc. Nora Kharouba, (absent) for the Fifth Party Fujitec Canada, Inc. Laura Young, for the Fifth Party Construction Control Inc. Paul Tushinski, for the proposed Fifth Party Taco (Canada) Ltd.
ENDORSEMENT
A. Overview
[1] A fourth case management conference was conducted on November 2, 2017, by teleconference, in accordance with paragraph 12 of my Endorsement of October 25, 2017 (the "3rd CM Order"), which was issued further to the case management conference conducted by teleconference on October 23, 2017. The 3rd CM Order directed that the following two matters would be addressed during a fourth case management conference:
a) The rescheduling of the date for mediation of this action, with Mr. Stephen Morrison acting as mediator, in accordance with paragraphs 10, 12 and 13 of the 3rd CM Order; and
b) Any claim for costs that any party may be advised to advance based on the late production of a large volume of documents by the defendants, Toronto Standard Condominium Corporation No. 2139 ("TSCC No. 2139"), Stephanie Carty-Kegel, Maxine Bass, Patti Milne and Duncan McEwan (the "TSCC No. 2139 Board Members"), Ted Slightham and Lanterra Development Ltd. ("Lanterra"), which resulted in the necessity to vacate the November 10, 2017 date for mediation and re-construct the timetable. This was provided for by paragraph 14 of the 3rd CM Order.
[2] This Endorsement will address the submissions made and resultant determination of these issues.
B. Rescheduling of Mediation
[3] After thorough canvassing of possible dates for mediation amongst counsel and with the mediator, Mr. Stephen Morrison, the only date on which all counsel and the mediator are available for a full day mediation is February 16, 2018.
[4] Counsel indicated that they required an opportunity to confer with their clients and instructing principals to determine their availability for attendance at mediation on February 16, 2018.
[5] The mediation session in the main action and the third and fourth party actions shall be conducted on February 16, 2018, with Mr. Stephen Morrison acting as mediator. Any counsel instructed to make any submission concerning the non-availability of a client or instructing principal for attendance that day may take steps to organize a further case management conference to address any such issue, using the protocol set out in paragraph 28(b) herein but with the party requesting the case management conference taking the initiative of canvassing the availability of all counsel for any such case management conference and circulating call-in co-ordinates.
[6] Ms. Dumonceau, counsel for the third party I.C.C. Property Management Ltd., will communicate with the mediator to book the February 16, 2018 date for the mediation.
C. Issue of Costs
[7] The Endorsement rendered after the first case management conference conducted on September 5, 2017 (the "1st CM Order") set out a comprehensive timetable for the conduct of summary examinations building to a mediation session to be conducted on November 10, 2017. The conduct of these summary examinations, scheduled to initiate on October 24, 2017, required the completion of documentary production in advance.
[8] As detailed in the 3rd CM Order, on Friday, October 20, 2017, TSCC No. 2139 produced 915 new documents totalling 4,600 pages of material. Also that day, Ted Slightham produced some 100 documents and Lanterra produced 133 new documents totalling some 600 pages. A hastily convened case management conference was then conducted by teleconference on October 23, 2017 to address the impact of this late production of documents. In the result, the timetable set out in the 1st CM Order required considerable modification and the mediation scheduled for November 10, 2017 had to be vacated, as set out in the 3rd CM Order.
[9] It was unclear at the time of the case management conference of October 23, 2017 of the extent to which costs would be unnecessarily incurred by reason of the vacating of the November 10, 2017 mediation date, including whether there would be cancellation costs invoiced by the mediator and/or the mediation chambers. Counsel sought to be heard on the issue of costs. This was reserved by paragraph 14 of the 3rd CM Order, as follows:
- The quickly organized case conference of October 23, 2017, conducted in a limited time period, did not allow for full submissions on the causes for the necessity to reschedule the examinations herein and did not allow for full briefing on any costs that might result therefrom, including any possible rescheduling or adjournment fee issued by the mediator. Submissions on these issues, including attribution of any such costs, may be made at the next case management conference, to which these cost issues have been reserved.
[10] In written cost submissions delivered on November 1, 2017, the plaintiffs presented a claim for costs from TSCC No. 2139. No costs were pursued from the TSCC No. 2139 Board Members, Mr. Slightham (who is implicated both as a board member and in his capacity as a real estate agent) or the third party defendant Lanterra, even though they also produced material in close proximity to the examination for discovery dates. The plaintiffs contend that it was the volume of material produced by TSCC No. 2139 that caused the necessity to, in essence, re-write the case management timetable.
[11] Having considered the written cost submissions delivered on behalf of the plaintiffs and on behalf of TSCC No. 2139, I invited oral submissions during the fourth case management conference. As no other party had any interest in this cost issue, the case management conference of November 2, 2017 continued on the issue of costs with only the involvement of Mr. Morrison and Mr. Koshal on behalf of the plaintiffs and Mr. LeDrew on behalf of TSCC No. 2139.
[12] The plaintiffs submitted that the late production of over 4,600 pages of documents by TSCC No. 2139 necessitated an urgent review of a sample of the newly-produced documents to determine if they were material, seek instructions from clients concerning the viability of completing review in time for the examinations and prepare for and attend at two case management conferences that would otherwise not have been required. The plaintiffs contend that these costs were avoidable and caused by the conduct of TSCC No. 2139 in not producing the documents earlier even though all parties were aware of the timetable for examination since the first case management conference conducted on September 5, 2017.
[13] The plaintiffs relied upon the decision by Master Hawkins in Sugar v. Deangelis, 2004 CanLII 26762 (Ont. S.C.J.) wherein $3,570 in costs were awarded after the defendants failed to proceed with examinations on the date scheduled by the court, emphasizing that the cost award included costs incurred at a case conference to attend to rescheduling. The plaintiffs also relied upon Olumide v. Conservative Party of Canada, 2015 ONSC 5989, wherein Hackland J. awarded $2,000 in costs after the plaintiff's conduct gave rise to the necessity for two case conferences that otherwise would not have been required.
[14] The plaintiffs submit that the documents that were produced on October 20, 2017 were first sought on August 16, 2017 when counsel for the third party I.C.C. Property Management took the position that the affidavit of documents produced by TSCC No. 2139 was deficient.
[15] Counsel for TSCC No. 2139 submitted that the process of broadening the assembly of material documents was extensive and time-consuming. When it became clear that documents from certain email addresses sent to or from TSCC No. 2139 and the TSCC No. 2139 Board Members were not included in the documentary production, TSCC No. 2139 broadened the scope of document identification and assembly with the result that the mass of documents expanded upon earlier expectation.
[16] TSCC No. 2139 contended that the additional documents could not have been produced in segments or tranches as it would have been unproductive to do so and would not have avoided the production of a large number of documents in close proximity to the examination date. TSCC No. 2139 submitted that the late production of material documents was not intended to delay, frustrate or subvert the timetable and the examination schedule, but rather was simply a regrettable by-product of the extensive documentary production exercise made necessary by the matters in issue.
[17] Noticeably absent from the material submitted by TSCC No. 2139 is an explanation as to the timing of the steps that were taken to assemble material given the pending dates for examination or why the documentary production process was not initiated much earlier. There was a demand for heightened documentary production on August 16, 2017, but no explanation of steps taken thereafter to address the demands made for broader documentary production, particularly in light of the scheduling on September 5, 2017 of the examination timetable.
[18] Court orders must be respected and obeyed. The failure to do so undermines the purpose of case management. As Master Hawkins stated in Esposito v. Toronto (City), 2007 O.J. No. 1092, at para. 12:
This is a case managed action. It is not an ordinary action. When the court makes timetable orders the court expects them to be obeyed. Adherence to court ordered timetables is fundamental to case management. The whole system of case management would break down if parties were free to obey or ignore timetable orders as they saw fit.
[19] This objective must be balanced with fostering the case management process as an informal means by which to keep costs down. TSCC No. 2139 submits that no cost award ought to be rendered for impairing and causing the breach of the case management timetable on the basis of the following principle stated by Myers J. in 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2016 ONSC 1714. [2016] O.J. No. 1179, at para. 2:
In my view, cost consequences at Case Conference should be rare. The informality is designed at least in part to keep costs down. The important goal of enhancing access to civil justice is best facilitated by encouraging parties to make use of Case Conferences, Civil Practice Court, Chambers Appointments, and other light touch case management processes that are being implemented to enhance efficiency and affordability of civil litigation. Removing the costs risk from informal appearances in ordinary cases encourages parties to bring matters before the court earlier and less formally. This will help move cases forward more efficiently and affordably and thereby save more than the limited costs incurred by the informal attendances.
[20] I agree with the summary by Myers J. of the goals of case management and that cost consequences at case conferences should be rare. I am of the view that one of the instances in which cost consequences in case management ought to be imposed is where a breach of a court-ordered timetable has resulted in delay and resultant wasted costs that were clearly foreseeable. I have determined that this is such a case.
[21] The timetable established by the 1st CM Order was implemented after hearing extensive submissions and had as its objective the development of an evidentiary record in a cost-efficient, summary manner sufficient to allow effectively for the conduct of an early mediation. This timetable hinged on the availability of many counsel, clients and instructing principals. It was known to all that any breach of the timetable would jeopardize the very purpose for which it was constructed.
[22] TSCC No. 2139, like any party, knew and understood that the Rules required that its documentary production be completed prior to examinations for discovery. TSCC No. 2139 could foresee that late delivery of 4,600 pages of documents, two business days before the examination of its representatives, could jeopardize the timetable, and this is precisely what has occurred. The mediation in this multi-party litigation will now be delayed by over three months by reason of the late production of documents by one party.
[23] On this basis, I have determined that the plaintiffs are entitled to costs reasonably arising from the late production by TSCC No. 2139 that has caused a wholesale modification of the timetable and resultant delay, including the delay of over three months in the conduct of the mediation.
[24] In terms of the quantum of costs, the plaintiffs seek costs on a substantial indemnity basis of $7,190.19 and on a partial indemnity basis of $4,793.46.
[25] There are no additional disbursements incurred by reason of the late production of documents. In particular, the mediator has not assessed a rescheduling or cancellation fee and the chambers at which the mediation will be conducted has similarly not submitted any invoice for the rescheduling.
[26] As such, I invited submission from the plaintiffs on the quantum of additional or incremental costs caused by the late production that would not have been incurred in any event by the plaintiffs in review of the documentary production. The plaintiffs pointed to extra resources required to quickly triage the 4,600 pages of documents received late, the wasted costs in formulating a recommendation and seeking client instructions resulting from this late-developed issue and costs sustained in preparing written submissions on these issues for the case management conferences of October 23, 2017 and November 2, 2017. I accept that costs were wasted by reason of the late production of documents by TSCC No. 2139 but not in the amounts submitted by the plaintiffs.
[27] Under Rules 57.01(e) and 50.13(6) and the discretion provided by s. 131 of the Courts of Justice Act to assess and award costs "of and incidental to a proceeding or a step in a proceeding", I award costs to the plaintiffs payable by TSCC No. 2139 fixed in the amount of $1,500, all-inclusive, and payable forthwith.
D. Further Case Management Directions
[28] The following further case management directions are provided:
a) The timetable dates set out in paragraphs 19(e), 19(f) and 19(g) of the 1st CM Order, for the completion of the examinations for discovery of Stephanie Carty-Kegel, Maxine Bass, Patti Milne, Duncan McEwan, Ted Slightham and the plaintiffs, Walter Zuppinger and Min Yan, are vacated (the "Vacated Events");
b) Counsel for the plaintiffs shall canvas with all counsel new timetable dates for the Vacated Events with the objective of obtaining concurrence on the rescheduling of the Vacated Events for dates following February 16, 2018. In the event that this rescheduling is not capable of being achieved collaboratively by counsel, then counsel for the plaintiffs will canvas with all counsel and determine two convenient dates for the conduct of a further case management conference by telephone to be conducted during the week of November 20, 2017 at 5:00 p.m. on both such proposed dates, from which I will select one date for the next case management conference. Once that date is selected, I would ask counsel for the plaintiffs to circulate call-in co-ordinates for a further case management conference by telephone;
c) In the event that all counsel are able to collaborate on establishing new timetable dates for the Vacated Events, I would ask that the consent to the re-scheduled dates please be communicated to me, through my assistant, for inclusion in a further endorsement;
d) The mediation session in this action shall be conducted on February 16, 2018, with Mr. Stephen Morrison acting as mediator. Any counsel seeking to make any submission concerning the non-availability of a client or instructing principal for attendance that day may take steps to organize a further case management conference to address any such concern, using the protocol set out in paragraph 28(b) herein but with the party requesting the case management conference taking the initiative of canvassing the availability of all counsel and circulating call-in co-ordinates;
e) I have been advised of the involvement of Taco (Canada) Inc. as a fifth party defendant but have not been provided by the fifth party plaintiff with a copy of the pleadings pertaining to any such fifth party action(s). I would ask that counsel for any fifth party plaintiff(s) please forward to me, through my assistant, a copy of the pleadings pertaining to any fifth party proceeding(s) herein, together with an indication as to whether there is agreement that the fifth party proceeding(s) will form part of the mediation session that will be conducted on February 16, 2018;
f) Should a case management conference not be required during the week of November 20, 2017, in that the opportunity to conduct a further case management conference pursuant to paragraphs 28(b) and (d) is not needed, then the next case management conference will be conducted on January 11, 2018 at 5:00 p.m. My assistant will provide call-in co-ordinates.
[29] 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: November 10, 2017