York Regional Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2018 ONSC 3766

COURT FILE NO.: CV-16-548539

DATE: 20180615

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

Gavin Tighe and Anna Husa, lawyers for the Defendant/ Moving Party Liberty Development Corporation

Alexander Paul, lawyer for the Defendant Darcon Inc.

HEARD: March 5, 2018

REASONS FOR DECISION

A. Overview

[1] The plaintiff, York Regional Standard Condominium Corporation No. 1206 (“YRSCC No. 1206”), brings this action for damages alleged to result from deficiencies in a condominium building known as the Posh Condominiums and identified municipally as 520 Steeles Avenue West, Vaughan, Ontario (the “Condominium”). YRSCC No. 1206 purports to proceed also as the statutory representative of the owners of Condominium units who claim to have lost the enjoyment and value of their units.

[2] YRSCC No. 1206 has sued anyone who had any involvement with the development, design, construction or other activities leading to the completion of the Condominium, naming 53 defendants. One such defendant, Liberty Development Corporation (“Liberty”), advances this motion for summary judgment to extricate itself from this action.

[3] Liberty’s principal submission is that it had no connection with the Condominium. The evidentiary record does not contain a single contract entered into by Liberty with any of the parties involved in this condominium project and there is no evidence of any payments to Liberty. If the 257 paragraphs pleaded over 73 pages of the plaintiff’s triple-amended Statement of Claim sought relief against Liberty only on the basis of breach of contract, there would be a compelling case for summary dismissal of Liberty’s involvement. But that is not the case.

[4] The plaintiff has advanced broader claims against Liberty, alleging that Liberty’s relationship with the construction manager, Darcon Inc. (“Darcon”), caused Liberty to have an operational involvement in the Condominium project that placed Liberty in sufficient proximity to the plaintiff to give rise to a duty of care, at law. The plaintiff relies heavily on evidence of a Liberty employee having a role in the construction management of the Condominium project. The plaintiff pleads that Liberty’s operational involvement gives rise to a duty of care in its favour, that Liberty has liability jointly with the construction manager, Darcon, and that Liberty has liability for representations said to have been made to the public concerning Liberty’s involvement in the Condominium project. Broadly, this motion calls for determination of whether Liberty had a role in the Condominium project that would sustain a legal liability claim against it.

[5] I am not satisfied that a fair and just determination of Liberty’s involvement can be made in this summary judgment process. Among the over 3,000 pages of materials filed on this motion, I have identified genuine issues regarding Liberty’s liability that are not capable of being determined on the current record using the tools contained in Rule 24.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the process roadmap specified by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Moreover, I have concluded that this is not an appropriate case for summary judgment in the context of this action as a whole because the determinations necessary to resolve Liberty’s involvement give rise to the potential for inconsistent findings on the myriad surviving elements that will continue against the other 52 defendants.

[6] This motion for summary judgment is dismissed.

B. Procedural Context for Determination of This Motion

[7] When Liberty’s summary judgment motion was first issued on May 19, 2017, the claims that Liberty sought summarily to dismiss were those pleaded in the plaintiff’s Amended Amended Statement of Claim (the “2^nd Amended Claim”). Liberty’s evidence in support of summary dismissal was concisely stated in an affidavit containing seven substantive paragraphs. A return date was established for Liberty’s motion to be heard on September 29, 2017.

[8] In the almost one year that elapsed since the scheduling of this motion, YRSCC No. 1206 brought six motions ancillary or further to Liberty’s motion, including a motion for leave to appeal one of the interlocutory orders. In that process, Liberty’s summary judgment motion was delayed over six months from its initial return date. In the meantime, the plaintiff has added or amended 59 paragraphs of its 257-paragraph, triple-amended statement of claim (the “3^rd Amended Statement of Claim”), principally directed at bolstering its claims against Liberty.

[9] Much has been written of the current litigation culture where motion practice dominates: see George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001, 112 O.R. (3d) 190. Motions such as this raise questions about the appropriateness of summary judgment in circumstances of complex litigation. Can a summary judgment motion achieve its objective of a fair and just result through proportionality, efficiency and affordability when suffocated by motion layered upon motion? Is there a point in the development of a summary judgment motion where its viability needs to be reconsidered by reason of shifting target, whether due to emerging conflict or identified deficiency in the evidentiary record or by expansion of the allegations pleaded? As D.M. Brown J., as he then was, stated in George Weston, at para. 29: “trying to push the square peg of a Rule 20 motion into the round hole of a trial is not the way to go about securing a less costly trial.”

C. Preliminary Motion – Plaintiff Motion to Admit Report

[10] At the opening of Liberty’s motion for summary judgment the plaintiff brought a motion to admit into evidence a report dated September 7, 2017 prepared by Mr. Michael Kruse (the “Kruse Report”). Liberty objected to the admission of the Kruse Report on the submission that it does not meet the criteria for an expert report as set out by the Supreme Court in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, 18 O.R. (3d) 160, and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182.

[11] In White Burgess, the Supreme Court stated that the first step in determining the admissibility of expert testimony is to establish the four threshold requirements set out in Mohan. As a secondary, discretionary gatekeeping function, the court must balance the risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks.

[12] The four criteria for the admissibility of the Kruse Report as an expert report explained in Mohan at p. 20 are as follows: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) that the expert be properly qualified.

[13] Mr. Kruse has 32 years of experience in the construction industry, including as a project manager. The plaintiff sought to qualify Mr. Kruse as an expert to give evidence on the scope of work of a construction manager and to provide his opinion concerning two of the issues raised by Liberty’s summary judgment motion, namely: whether the evidentiary record in this motion demonstrates that Liberty employed Mr. Max Vossough; and whether Mr. Vossough’s activities establish operational involvement of Liberty in the Condominium project.

[14] The opinions that the plaintiff proposed to admit through Mr. Kruse are questions to be determined by the court. Mr. Kruse simply read the same documents as are before the court in the motion record and seeks to provide his interpretation of their meaning and significance.

[15] In Mohan, at p. 23, the Supreme Court provided guidance regarding the requirement that the proposed expert report be “necessary in assisting the trier of fact”: “What is required is that the opinion be necessary in the sense that it provide information ‘which is likely to be outside the experience and knowledge of the judge or jury’ … [T]he evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature.”

[16] The Kruse Report fails to satisfy the Mohan criteria of relevance and necessity. The court does not require the Kruse Report to understand and to assess the issue of operational involvement of Liberty in the Condominium project. To the extent that Mr. Kruse’s opinion is tendered to provide his opinion on an issue that the court is to decide on this motion, his report is not helpful or necessary: Laudon v. Roberts (2007), 49 C.P.C. (6th) 311 (Ont. S.C.J.). The Kruse Report does not satisfy the Mohan criteria.

[17] The plaintiff’s motion to admit into evidence the Kruse Report is dismissed.

D. The Plaintiff’s Claim

[18] It is important to place in perspective the role that Liberty is alleged to have had in the Condominium project in the context of the overall scope of the plaintiff’s claim in order to assess the impact to the surviving action of findings that Liberty asks the court to make on this motion.

[19] YRSCC No. 1206 seeks damages of $75 million arising from harm to the common elements of the Condominium. This is said to include the entire physical structure of the building, including surface walls of the interior of each unit. The plaintiff has sued the following parties:

a) York Region Common Element Condominium 1210, who administered the neighbouring condominium premises and is alleged to have contractual obligations to the plaintiff under a shared facilities agreement;

b) 520 Steeles Developments Inc. (“520 Steeles”), 7 Brighton Place Inc. (“7 Brighton”) and Kantium Developments & Construction Inc. (“Kantium Inc.”), who are alleged to have been, along with Liberty, the developers, builders and vendors of the Condominium units, and are referred to collectively in the 3^rd Amended Claim as the “Developers”;

c) Darcon and Mondconsult Limited, who are alleged to have provided construction management services “in conjunction with and or as partners of” the Developers;

d) 16 contractors, who are sued for their alleged role in the design, supply, manufacturing, construction and installation of discrete components of the Condominium and are defined in the 3^rd Amended Statement of Claim as “Constructors”;

e) 14 engineers or engineering firms, who are sued for their alleged role in the design, inspection, testing, certification and in some cases installation of building components and are referred to as “Constructors’ Engineers”;

f) Five engineers or engineering firms, who are sued for their alleged role in design and oversight of construction of elements of the Condominium project and are referred to as the “Design Engineers”;

g) EXP Services Inc., who is sued as an engineering consultant to the project and also served as the Bulletin 19 Field Review Consultant, and is referred to as the “Bulletin-19 Engineer”;

h) Building Sciences Inc., who is alleged to have served as engineering consultant to the plaintiff and to be responsible for a performance audit, and is referred to as the “Performance Audit Engineer”;

i) Four architects or architectural firms, who are sued for their alleged role in the design of the Condominium project or the neighbouring condominium project or the landscape architectural design, and are referred to as the “Architects”;

j) Three property management companies, who are sued for their alleged role as project managers, responsible for the project management of the Condominium, including at the time of registration, and are referred to as the “Property Managers”.

[20] The plaintiff pleads that all of the 53 defendants, including Liberty, were in a position of legal proximity to the plaintiff and thereby owe a duty of care to the plaintiff and to existing and future purchasers of the Condominium units.

The Causes of Action against Liberty

[21] The plaintiff’s case against Liberty is based on the following causes of action:

a) Breach of contract: YRSCC No. 1206 pleads that Liberty, as a Developer, was in breach of contract, including failure to provide services in a diligent and reasonable manner to ensure the structural integrity of the Condominium, failure to correct deficiencies, concealment of substandard work and incomplete and inadequate attempts at remediation: 3^rd Amended Statement of Claim, paras. 230-232;

b) Negligence: The plaintiff pleads that Liberty was in a position of proximity to the plaintiff sufficient to give rise to a duty of care in negligence to the plaintiff and the Condominium unit owners: 3^rd Amended Statement of Claim, paras. 96, 99, 101, and 103. Liberty, together with the other Developers, is alleged to have breached its duty of care regarding the following:

(i) Completion of the residential condominium in conformity with applicable standards: 3^rd Amended Statement of Claim, para. 100;

(ii) A continuing obligation to withdraw, amend or correct any drawings, specifications, certificates, reports or any other design or construction documents where material nonconformities, anomalies or errors came to their attention affecting structural integrity, the presence of contaminants or other factors affecting the use of the units: 3^rd Amended Statement of Claim, para. 108;

(iii) Obligation to construct the required independent concrete columns and footing required to support the garage slab as identified and required by the approved design drawings: 3^rd Amended Statement of Claim, para. 125;

(iv) Allowing for the construction of a structural system for the building, a structural system for the roof and a building envelope system that are said to be inadequate, prematurely failing, requiring of immediate remediation and a danger to the public: 3^rd Amended Statement of Claim, paras. 138, 166.1 and 183;

(v) Ensuring that all warranties applicable to the Condominium were in proper order: 3^rd Amended Statement of Claim, para. 189.

c) Joint Liability through Operational Involvement “in Conjunction or Partnership with Others”: YRSCC No. 1206 submits broadly that Liberty is jointly and severally liable to the plaintiff together with all defendants for any deficiencies in the construction of the Condominium and its common elements, including management, workmanship and design: 3^rd Amended Statement of Claim, para. 217. However, the cornerstone of the plaintiff’s joint liability theory involving Liberty is the claim that Liberty was a “co-venturer” or “co-performer” of the construction management obligations of Darcon: 3^rd Amended Statement of Claim, paras. 15 and 21. The vast majority of the plaintiff’s third series of pleading amendment was overtly focused on bolstering its theory that Liberty and Darcon have common officers and directors, office space, employees and directing minds, such that Liberty shared or undertook Darcon’s construction management responsibilities. This is alleged to have placed Liberty in sufficient proximity to be jointly liable with Darcon for any defect in construction management: 3^rd Amended Statement of Claim, paras. 111.1-111.30.

[22] In order for Liberty to establish a basis for summary dismissal of its involvement in this action, Liberty must establish that there is no genuine issue requiring trial in relation to Liberty’s defence of the causes of action pleaded against it, which will be referred to as the “Breach of Contract Claim”, the “Negligence Claim” and, broadly, the “Joint Liability Claim”.

E. Applicable Principles for Summary Judgment

[23] Liberty’s motion for summary judgment is based on Rule 20.01(3), which provides as follows:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[24] There is only one paragraph in the joint Liberty/ Darcon Amended Statement of Defence that is specific to Liberty:

5. Liberty did not develop the lands that are referenced in the statement of claim. Liberty had no connection to any development, design, construction or other activities on the lands described in the statement of claim.

[25] Liberty’s defence is thereby predicated on establishing that Liberty was not connected to the Condominium project sufficiently for Liberty to have liability to the Plaintiff on the Breach of Contract Claim or the Negligence Claim or the Joint Liability Claim.

[26] Rule 20.04(2) directs as follows:

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

20.04(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial;

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

20.04(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[27] In order for summary judgment to be available, Liberty must establish, under Rule 20.04(2)(a), that there is no genuine issue requiring a trial in relation to Liberty’s defence that Liberty did not have sufficient connection to the Condominium project to have liability to the plaintiff on the Breach of Contract Claim or the Negligence Claim or the Joint Liability Claim.

[28] In Hryniak, the Supreme Court emphasized that the important objective of ensuring access to justice requires an effective and accessible process for the enforcement of rights. The procedural tool refined in Hryniak, the summary judgment motion, was focused on as a means by which to achieve timely and efficient adjudication in certain, but not all, cases. In Hryniak, the Supreme Court provided the template by which Rule 20 is to be applied.

[29] In Hryniak, at para. 66, the court sets out a two-part test for considering summary judgment under Rule 20.04(2)(a), termed the “Roadmap”. The first step is that the motion judge must determine whether there is a genuine issue requiring trial based only on the evidence contained in the motion record, specifically without using any of the powers set out in Rule 20.04(2.1). There will be no genuine issue requiring trial where the evidentiary record on the motion provides the judge with the evidence necessary to reach a fair and just determination in a process that is timely, proportionate and affordable, as is stated in Hryniak at paras. 4, 28, 66 and specifically at 49. Paragraph 49 states:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[30] The second step in the “Roadmap” is activated when a judge finds that there is a genuine issue requiring a trial. The court should then determine whether the need for a trial can be avoided by using the powers set out in Rules 20.04(2.1) and (2.2). These powers are to be employed where they will lead to a fair and just result but not where they do not serve the goals of affordability and proportionality, as stated in Hryniak at para. 66:

She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[31] The foundational themes in Hryniak focus on the goals of proportionate, cost-effective and timely adjudication on an evidentiary record and in a process that allows for a fair and just determination. The Supreme Court emphasized that when the use of the new powers under Rules 20.04(2.1) and (2.2) enable a judge to fairly and justly adjudicate a case, it will be in the interest of justice to do so. However, while these powers are presumptively available, the decision to use these powers is within the discretion of the judge, as stated in Hryniak at para. 68:

While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. [Emphasis in original. Footnotes omitted.]

[32] The Supreme Court provides specific guidance on instances in which the use of the powers set out in Rule 20 might be inappropriate, including unmeritorious motions for summary judgment, or indeed response thereto, where the object is not to achieve the goals of proportionate, cost-effective and timely adjudication but rather the antithesis: to add expense and cause delay (Hryniak, at para. 68). For summary judgment to work efficiently, the parties and their counsel must also commit to fashioning a “proportionate means to achieve a fair and just result”: Hryniak, at para. 32.

[33] The summary judgment sought by Liberty is intended to remove Liberty from this case, but the litigation as a whole will continue as against the remaining 52 defendants. A summary judgment motion brought by a single defendant amongst a group of many necessitates an analysis of the consequences of determination of this motion in the context of this action as a whole, as specifically raised by the Supreme Court in Hryniak, at para. 60:

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

[34] Hence, in order for partial summary judgment to be available to Liberty in an action that will continue on multiple issues against all other defendants, I must be satisfied that this summary judgment process is advisable, fair and just in the context of the litigation as a whole.

Summary – Principles Applicable to Liberty’s Motion for Summary Judgment

[35] In order to establish a basis for summary judgment, Liberty must prove that there is no genuine issue requiring a trial regarding Liberty’s defence that it did not have sufficient connection to the Condominium project to have liability to the plaintiff on the Breach of Contract Claim or the Negligence Claim or the Joint Liability Claim. The record on the motion must provide the evidence necessary to reach a fair and just determination of Liberty’s defence. If a genuine issue requiring trial is identified, I may exercise my discretion to use the fact-finding tools to adjudicate the genuine issue provided that the evidentiary record is sufficient to ensure a fair and just determination. Last, as this is a case where the action will continue after the summary judgment determination, the “interest of justice” inquiry requires that partial summary judgment must be advisable in the context of the litigation as a whole, specifically that it does not give rise to the potential for duplicative or inconsistent findings in the surviving action.

Analysis – Is There a Genuine Issue Requiring Trial?

The Burden

[36] The burden of persuading the court, through evidence, that there is no genuine issue requiring a trial rests with the moving party. This burden shifts to the responding party to prove that its claim has a real chance of success only after the moving party has first discharged its evidentiary burden of establishing that there is no genuine issue requiring trial: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30; Connerty v. Coles, 2012 ONSC 5218, at para. 9.

[37] The party seeking summary judgment must “move with supporting affidavit material or other evidence to support its motion”: Cuthbert v. TD Canada Trust, 2010 ONSC 830, 88 C.P.C. (6th) 359, at para. 12. A responding party on a summary judgment motion cannot rest solely on allegations in a pleading: MacDonald v. Chicago Title Insurance Co. of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at para. 50. Allegations contained in the pleadings cannot be used as the evidentiary basis for positions taken in summary judgment motions. “Pleadings are not evidence”: Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10, at para. 8.

[38] Liberty tendered two affidavits sworn by the Senior Vice President of Liberty, Michael Uster, being an affidavit sworn April 26, 2017 and an affidavit sworn September 11, 2017 that replied to the plaintiff’s responding record. Liberty did not produce any documentary evidence, testifying instead that it had none to produce. Liberty’s affidavit of documents, sworn by Mr. Uster on May 18, 2017, states that there are “Nil” documents in the corporation’s power, possession or control that are material to the issues raised by this action.

[39] The plaintiff sought to meet its evidentiary obligation in response by delivering responding records consisting of nine volumes of material comprising over 1,600 pages. The affidavit evidence relied upon by YRSCC No. 1206 consisted of three affidavits sworn by Cindy L. Johnson, a paralegal in the office of the plaintiff’s lawyers, sworn August 22, 2017, September 5, 2017 and September 27, 2017, as well as an affidavit sworn by Condominium unit holder Michelle Afagh Parvizian (the “Parvizian Affidavit”).

[40] Each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Hryniak, at paras. 57, 66; Cuthbert, at para. 12; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423, 2 O.T.C. 146, at p. 434, aff’d [1997] O.J. No. 3754 (C.A.). In Chernet v. RBC General Insurance Company, 2017 ONCA 337, at para. 12, the Court of Appeal stated: “Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts. Not by speculation about the facts.”

[41] As part of putting forward their “best foot”, the parties conducted examinations of Hassam Haji Mohammadi, produced on behalf of 520 Steeles, 7 Brighton and Kantium Inc. (the “Mohammadi Examination”), Marco Filice, the General Manager of Darcon and senior vice-president of Liberty (the “Filice Examination”) and Morteza Max Vossough (the “Vossough Examination”). In addition, Mr. Uster, Ms. Johnson and Ms. Parvizian were cross-examined on their affidavits.

[42] Notwithstanding the enormity of the record on this motion, totaling in excess of 3,000 pages with almost 400 pages of transcript evidence, the responding party plaintiff submitted that it was denied the opportunity to tender a complete responding record on this motion for two reasons: first, that its examinations were hindered by improper restrictions placed by the moving party on the scope of examination; and second, that by Liberty disclosing “Nil” documents in its affidavit of documents, the plaintiff was denied proper production from the moving party. The plaintiff pointed to its identification, from the productions of others, of over 400 documents that passed through Liberty’s office or email directory as establishing that Liberty had not made proper documentary production and thereby deprived the plaintiff of the opportunity to “put its best foot forward”.

[43] The case law establishes that the motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial: Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, 137 O.R. (3d) 570, at para. 54, citing Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 111 O.A.C. 201 (C.A.), at para. 17. However, the motion judge may decline to so presume where she or he concludes that there is material evidence that has not been produced such that the evidentiary record on the motion is inadequate to ensure a fair and just determination.

Liberty’s Position – No Involvement

[44] Liberty set out to prove a negative: in Liberty’s words, that it had “nothing to do” with the Condominium project. The testimony of Mr. Uster, Liberty’s Sr. V.P., was as follows:

a) Liberty had no connection with the Condominium;

b) Liberty was not the developer of the Condominium;

c) 520 Steeles was the developer and declarant of the Condominium, 7 Brighton Place was the developer and declarant for the neighbouring townhouse project and Kantium Inc. was the project manager for both, and Liberty has no relationship with any of these parties;

d) Liberty did not enter into any contract with any of the defendants;

e) Liberty did not develop, build or sell the Condominium and was not responsible for overseeing or managing any of the trade contractors in connection therewith;

f) Liberty had no financial interest in and obtained no financial benefit from the Condominium development.

[45] This evidence by Mr. Uster was supported by Mr. Marco Filice, who holds positions both in Darcon (General Manager) and Liberty (Sr. Vice-President), who swore that Liberty had no involvement in the Condominium project. Mr. Filice testified: “So, I definitely recall this not being for certain, 105 percent, a Liberty project”: Filice Examination.

[46] Liberty challenged the plaintiff to identify a single contract in the entirety of the Condominium project into which Liberty entered. No such contract was identified.

[47] The Construction Management Contract dated June 1, 2010 pertaining to the Condominium project is executed by Mr. Mohammadi on behalf of 520 Steeles, as owner, and by Mr. Brendan Murphy on behalf of Darcon, as construction manager. Mr. Murphy is both the President of Darcon and a Director of Liberty. Mr. Murphy did not give evidence on this motion.

[48] Liberty is not a party to the Construction Management Contract. Mr. Mohammadi testified that there is no contract in place between Liberty and any of the companies he is connected with: 520 Steeles, 7 Brighton and Kantium Inc.. Through the use of requests to admit, Liberty established that there is no contract in place between Liberty and Rafael & Bigauskas Architects Inc. (“Rafael Inc.”), Adjeleian Allen Rubeli Limited (“Adjeleian Ltd.”) or United Engineering Inc. (“United Engineering”) in respect of the design, development or construction of the Condominium.

[49] Liberty submitted that through the use of requests to admit, all the defendants asserting crossclaims have now either expressly admitted that they had no contractual relationship with Liberty in relation to the Condominium project or have declined to respond to the requests to admit and are thereby deemed to admit those facts. Further, those defendants who have advanced crossclaims against Liberty do not oppose the dismissal of the claim and crossclaim against Liberty.

[50] The evidentiary record does not contain any evidence of any payment to Liberty in relation to any work in the Condominium project.

[51] Liberty contends that in the absence of a contractual relationship with any of the parties in relation to the Condominium project and in the absence of any payment for any work, there cannot be any genuine issue requiring trial that Liberty was not involved in the development, design, construction or other activities on the Condominium project and thereby cannot have any liability to the plaintiff.

[52] The absence of any evidence of any contractual obligation in the Condominium project and the lack of payment are not, however, determinative of the threshold issue, stated broadly, of whether Liberty had a role in the Condominium project that would sustain a legal liability claim against Liberty. Besides the Breach of Contract Claim, the plaintiff advances two other theories of liability against Liberty, the Negligence Claim and the Joint Liability Claim which have as their common foundational element the issue of whether Liberty had any operational involvement in the Condominium project.

Liberty’s Operational Involvement through Mr. Vossough

[53] The plaintiff filed nine volumes of responding material totaling in excess of 1,600 pages to establish that there is a genuine issue requiring trial regarding the role of Liberty in the development, design, construction or other activities on the Condominium project. The plaintiff refers to this as Liberty’s “operational involvement”.

[54] As Liberty did not produce any documents, the plaintiff set out to investigate Liberty’s operational involvement in the Condominium project by word-searching the Schedule A lists of documents contained in the affidavits of documents of four co-defendants and, where available, the physical documents to identify documents that pointed to Liberty having a role in the development of the Condominium.

[55] This investigation revealed email communications and delivery of construction documents, including Site Instruction Reports and Site Review and Evaluation Reports, to Mr. Vossough sent or received from a Liberty email address reflecting the domain name Liberty Development (the “Vossough Liberty Email Address”), or to the location of Liberty’s office at that time: 505 Highway 7 East: Liberty at Suite 303, Thornhill, Ontario.

[56] The evidence of Mr. Uster and Mr. Filice is that Mr. Vossough was, at material times, an employee of Darcon and did not perform any work on the Condominium project on behalf of Liberty. Mr. Uster testified that Mr. Vossough was “previously” a Liberty employee who did not obtain a Darcon email address until approximately May 2011, months after transitioning from Liberty, but that when communicating with others in regard to the Condominium project he did so in his capacity as a Darcon employee. Liberty did not tender any evidence to explain why Mr. Vossough was permitted to continue to use a Liberty email address for months after leaving Liberty or whether Liberty told others that Mr. Vossough’s involvement in the Condominium project was entirely on behalf of Darcon.

[57] This testimony of Mr. Uster and Mr. Filice is at odds with the evidence of Mr. Vossough, who testified as follows concerning his employment in the period from June 2010, being the early stage of the Condominium project, onward (Vossough Examination, q. 31-50, pp. 10-13):

Q. 31. Have you ever been an employee of Liberty?

A. Yes.

Q. 32. Could you tell me the time periods that you were an employee of Liberty?

A. I recall, I think that I transitioned from Liberty to Darcon towards the end of 2010.

Q. 33. Is that November of 2010?

A. I think it was December.

Q. 34. In December of 2010, you transitioned from Liberty to Darcon?

A. Well, I was paid for it, I would say.

Q. 35. I beg your pardon?

A. It became a contract between Darcon and myself.

Q. 36. So, as of 2010 you had a contract of employment with Darcon?

A. Yes.

Q. 37 Prior to that you had a contract of employment with Liberty?

A. Yes.

Q. 48. Did you receive a paycheque from Darcon in November of 2010 or did you receive a paycheque from Liberty?

A. Money was deposited into my account, I don’t remember who it came from.

Q. 49 But, up until December of 2010 you were papered as a Liberty employee?

A. Yes.

Q. 50. And after that period, December 2010, you were papered as an employee of Darcon?

A. Yes.

[58] Mr. Uster’s evidence and Mr. Vossough’s evidence is contradictory concerning how Mr. Vossough came to work as part of the construction management team on the Condominium project in the period from the early stage of the project in June 2010 through to December 2010, at which point Mr. Vossough states he transitioned to Darcon. Mr. Vossough testified that while a Liberty employee, in the period leading to December 2010, he was directed to assist Darcon in its role as construction manager for the Condominium project by Mr. Brendan Murphy, who has roles in both Darcon and Liberty. Mr. Uster testified that Liberty and Darcon were, at all times, separate companies that did not assign employees from one corporation to the other. The evidence of Mr. Vossough and Mr. Uster is not reconcilable, and Mr. Murphy, the person who is said to have assigned Mr. Vossough to work on a Darcon project while employed by Liberty, did not provide any evidence.

[59] Liberty and Darcon are closely held corporations that carry on business from contiguous office space and have overlapping officers and directors. The corporation profile tendered into evidence by the plaintiff shows that Fereydoon (Fred) Darvish is the President and Director of Liberty as well as the Vice-President and Director of Darcon, Abdulatif Fazel is the Secretary and Director of Liberty as well as an Officer and Director of Darcon and Brendan Murphy is a Director of Liberty and the President of Darcon. Liberty was incorporated on August 19, 1999, Darcon on October 28, 1999, both with the same registered office address.

[60] The evidence before me shows that Mr. Vossough had operational involvement in the Condominium project from January 18, 2010 to June 8, 2012. The question is whether he did so throughout on behalf of Darcon as construction manager, as Liberty submits, or on behalf of Liberty or both Liberty and Darcon, as the plaintiff submits. Mr. Vossough testified to having been employed by Liberty to December 2010 and by Darcon thereafter but the evidence points to his use of Liberty email address, logo and corporate identification through to June 8, 2012.

[61] The plaintiff relies on emails between Mr. Vossough and others in the Condominium project wherein Mr. Vossough expressly refers to himself as a member of Liberty, such as this email of September 1, 2010:

As a minimum we need underground up to and including ground floor drawings with relevant sections and details. We will need for now 4 full size and 2 half size drawings. Please have them delivered to our office.

Please be advised that we are planning to pour the slab for the crane base tomorrow and start strip footings starting from the south east corner by September 7.

Thanks.

LIBERTY LOGO

Max Vossough

Liberty Development Corporation

Liberty Tel. No. Liberty Fax No.

Vossough Liberty Email Address

Liberty web address

[62] In this email, Mr. Vossough is identified as a Liberty representative, using a Liberty email address and a Liberty logo. Mr. Vossough asked that construction drawings be sent to “our office”, being the Liberty office, at suite 303, 505 Highway 7 East, and not the Darcon office at suite 280 of that building. Mr. Vossough’s statement that “we” are planning to pour the slab is contained on a communication bearing a Liberty logo. In submitting that this email communication is not an anomaly, the plaintiff tendered into evidence through Ms. Johnson over 25 emails similarly composed to the email reproduced above, all sent by Mr. Vossough, some dating before the transition from Liberty to Darcon that is said to have occurred in December 2010 and some after. This collection of emails are all sent by Mr. Vossough from a Liberty email address with a Liberty logo and a Liberty mailing address, to the architects, engineers and others working on the Condominium project providing input, direction or coordination of construction activity in the period from August 31, 2010 to April 1, 2011, and pertain to the following construction operations:

a) Specifications for concrete and field test for determination of concrete strength;

b) Structural rebar for footings and footing sizes;

c) Slab size specifications;

d) Observations on discrepancies between architectural drawings and structural design;

e) Coordination of meetings, which Mr. Vossough would attend, with contractors, consultants and engineers.

[63] In total, the plaintiff distilled from the productions of four of Liberty’s 52 co-defendants and placed into evidence a total of 414 documents that were forwarded to, or by, Mr. Vossough using a Liberty email address in relation to the Condominium project during the time period from January 18, 2010 to June 8, 2012, as follows:

a) A search of the affidavit of documents of the defendant engineer Adjeleian Ltd., which contains a 569 page list of Schedule A documents comprising 8,000 pages of material, disclosed 242 emails that show communications by or to Mr. Vossough at the Vossough Liberty Email Address. The earliest of these emails is dated January 20, 2010 and the last is identified as being sent or received on December 22, 2011. The reference lines of the emails indicate that they are in relation to the design and construction aspects of the Condominium project.

b) A search of the affidavit of documents of Darcon disclosed 21 emails that show documents forwarded to Liberty from January 18, 2010 to July 11, 2011, as follows:

(i) Engineering detail review documents and structural site documents forwarded by courier to “Liberty Development – 505 Highway 7 East, Suite 303” by Adjleian Ltd. on numerous elements of the Condominium project, directed not only to Mr. Vossough at Liberty but also to others who are referred to as Liberty representatives, including Anthony Fragale, Hugo DaSilva, Jeff Majidi and Hamid Aghazamani;

(ii) Email communications pertaining to the Condominium project sent to the Vossough Liberty Email Address.

c) A search of the affidavit of documents of Rafael Inc. disclosed 97 documents that were forwarded to or sent by Mr. Vossough using the Vossough Liberty Email Address from January 19, 2010 to July 11, 2011, pertaining to the following subjects:

(i) Architectural drawings;

(ii) Structural drawings;

(iii) Schedule of minutes and meetings;

(iv) Site construction reports;

(v) Permit and hydro issues;

(vi) Site instructions.

d) A search of the affidavit of documents of United Engineering disclosed 54 documents that show emails forwarded to or sent by Mr. Vossough at the Vossough Liberty Email Address from October 7, 2010 to June 8, 2012, including the following:

(i) 24 Site Review and Evaluation Reports completed by United Engineering in relation to the Condominium project and distributed to the working group in the period from October 5, 2010 to June 11, 2012;

(ii) 27 Site Instruction Reports completed by United Engineering in relation to the Condominium project and distributed to the working group in the period from August 25, 2010 to June 29, 2011.

[64] Although the documents produced by the plaintiff to establish Liberty’s operational involvement in the Condominium project total 414, I cannot ascertain on the current record whether the 414 documents represent the entirety of the operational involvement alleged of Liberty through Mr. Vossough or simply a sampling. There is no record on which to assess whether these documents are anomalous outliers or representative of an operational involvement in the Condominium by Mr. Vossough and, if so, whether Mr. Vossough’s involvement was on behalf of Liberty or Darcon or both for the following reasons:

a) 414 documents represent a small portion of the total document database of productions created amongst the 53 defendants in this action, which is said to exceed 30,000 documents. Liberty submits that the plaintiff has selectively culled the documents that support its contention, out of context and incompletely, and has thereby distorted the factual matrix in which the assessment of Liberty’s role ought to be assessed. This submission would lead to the conclusion that the record necessary for determination of this issue is either not present or incapable of being fashioned for a summary motion;

b) There is evidence that Mr. Vossough also had a Darcon email address during the material times, but Liberty tendered no evidence concerning Mr. Vossough’s use of the Darcon email address. As such, there is no evidence on which to assess the comparative timing or frequency of use by Mr. Vossough of each of the email addresses, the overlap in time or in subject matter between his use of the two email addresses, or the nature or quality of the work attended to with them. There is no way to know if the 414 documents bearing Liberty imprint represent a minute fraction of the construction management done by Liberty or Darcon or dominate the construction management steps. There is no record on which to conduct a comparative analysis of Mr. Vossough’s activities before December 2010 and after, being the date on which he is said to have “transitioned” from Liberty to Darcon;

c) Liberty did not produce any documents. As a result, there is no evidentiary basis on which to assess whether these 414 documents constitute the entirety of the documents sent or received by Mr. Vossough from a Liberty email address or Liberty office, or whether they are a sub-set of a larger collection.

[65] In not producing any documents on this motion, Liberty relied on the sworn statement made by Mr. Uster on May 18, 2017 in Liberty’s affidavit of documents. Mr. Uster swore that he had “conducted a diligent search of [Liberty’s] records and made appropriate enquiries of others to inform [himself]” and to the full extent of his “knowledge, information and belief” there were no documents in Liberty’s power, possession or control that are material to the matters in issue. Yet, after being made aware of the 414 documents that were sent to or received by Liberty in relation to the Condominium project, and which would thereby be expected to exist in Liberty’s email directories or files, Mr. Uster testified as follows on cross-examination:

Q.143.And you made no inquiries as to what [Vossough Liberty Email Address] e-mail documents are on the Liberty server?

A. I don’t make inquiries of Darcon employees.

Q. 144. Liberty has an IT officer?

A. Yes.

Q. 146. And you didn’t ask the IT officer to take a look at what was in the Liberty e-mail server relating to this POSH condominium development? Yes or no, sir, did you make such an inquiry?

A. Oh, I thought that was a statement. Was that a question?

Q. 147. Absolutely, sir.

A. I did not ask the IT officer.

Q. 151. First of all, you didn’t ask the IT officer to search the Liberty server for the key word “Kantium”. You didn’t do that?

A. Is that a question?

Q. 152. It certainly is?

A. I did not do that.

Q. 153. And you didn’t ask for a key word search of 520 Steeles?

A. From Liberty IT officer, correct.

Q. 154. And you didn’t ask for e-mails to or from Sam Haji, also known as Haji Mohammadi. You didn’t look for either of those, a Sam Haji Mohammidi?

A. From Haji, no …

[66] Liberty concedes that it did not search its electronic databases and files even though it recognized that documents involving Liberty pertinent to the Negligence Claim and the Joint Liability Claim had been produced by others. Liberty may well have no material documents beyond the 414 documents produced by the other defendants, but this is not currently known.

[67] Parties to summary judgment motions are entitled to have the opportunity to review relevant documents in the possession of moving parties as part of their preparation of their responding position. This is because important evidence is often only in the possession of the party moving for summary judgment: Bank of Montreal v. Negin (1996), 1996 CanLII 1548 (ON CA), 31 O.R. (3d) 321, 95 O.A.C. 230 (C.A.), at p. 323. In Cole v. Hamilton (1999), 1999 CanLII 14820 (ON SC), 45 O.R. (3d) 235, 35 C.P.C. (4th) 321 (S.C.J.), at p. 236, Cumming J. stated that, “a party will often require production of documents by the opposition to prove the party’s case.” Wilcox J. made a similar finding in McLelland v. Farquhar Plymouth Chrysler Ltd., 2013 ONSC 1216, where he held that full disclosure of documentary evidence is necessary for a party to properly respond to a motion for summary judgment.

[68] In Drosophilinks Consulting Inc. et al. v. Canadian National Railway Company et al., 2010 ONSC 3576, Newbould J. held that he was entitled to draw an adverse inference against the party who failed to fully produce documents even in the absence of a motion to seek an order for the production of such materials. In so finding, he relied on Indcondo Building Corp. v. Steeles-Jane Properties Inc. (2001), 14 C.P.C. (5th) 117 (Ont. S.C.J.), at para. 7, wherein Nordheimer J., as he then was, drew an adverse inference when examination questioning had been improperly restricted notwithstanding no motion had been brought to compel answers to the questions refused. The adverse inferences capable of being drawn from failure to produce documents and from improper restriction of examination questioning both derive from the principle stated as follows by Borins J.A. in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257, 111 O.A.C. 201 (C.A.), at para. 117: “In this regard, rule 20.02 provides that on the hearing of a Rule 20 motion ‘an adverse inference may be drawn, if appropriate, from the failure of a party to provide evidence of persons having personal knowledge of contested facts.’”

[69] The availability of drawing an adverse inference is not affected by whether a motion has been brought to compel further productions or answers to questions refused. This is no different than Rules 31.07(2) and 34.15, that restrict the introduction of evidence at trial related to a question improperly refused, or Rule 30.08(1), that restricts the use of a document at trial that has not previously been produced. Neither of these Rules requires that a motion be brought as a predicate to the operation of the Rule.

[70] But apart from the question of adverse inference, there is a broader issue. The Supreme Court in Hryniak makes clear, at para. 28, that: “A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.” In order to determine the factual issues fairly, the motion judge must be satisfied that the record allows for a fair adjudication, as per Hryniak at para. 57: “On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute.” A moving party who does not make full documentary production or who improperly restricts examination questioning proceeds at its own peril as it risks a finding that the summary motion brought fails due to inadequacy of the evidentiary record. It would be unjust to grant summary judgment against a plaintiff if there is the possibility that material documents exist that ought to have been produced by the moving party defendant, and ought to have been tendered in evidence, but were not due to inadequate discharge of the duty to conduct a diligent search: 90 George St. v. Reliance Construction, 2012 ONSC 1171; Grossman et al. v. Toronto General Hospital et al. (1983), 1983 CanLII 1975 (ON SC), 41 O.R. (2d) 457, 146 D.L.R. (3d) 280 (H.C.J.).

[71] The plaintiff submits that an adverse inference ought to be drawn against Liberty based on its reliance on an affidavit of documents that produced “Nil” documents without completion of those steps necessary to fulfil their documentary production obligation, and for improper restriction on examination questioning. I do not find it necessary to make a determination that questions have been improperly refused, although I comment that this case exemplifies the prudence of using Rule 34.12 to object to improper questions on examinations pertaining to summary judgment motions in the place of refusals.

[72] Mr. Uster conceded in cross-examination that he did not conduct the searches required in order to comply with Liberty’s production obligations. As such, I cannot rely on his sworn statement in the affidavit of documents that he delivered on behalf of Liberty that Liberty has no documents in its possession, power or control that are material to the claims advanced by the plaintiff.

[73] In the circumstances, I do not consider that it is necessary to make any adverse inferences. I find that the evidentiary record on this motion does not provide the evidence necessary for a fair and just determination of the genuine issue that has been identified pertaining to Liberty’s operational involvement in the Condominium project. There is insufficient evidence to resolve whether Mr. Vossough was an employee of Liberty or Darcon at the time that he was operationally involved in the Condominium project or to resolve whether, regardless of his employment, the steps that he was taking to assist Darcon in its role as construction manager were steps taken on behalf of Liberty. I am not satisfied that the documents in the evidentiary record tell the entire story and the evidence of material witnesses, such as Mr. Darvish and Mr. Murphy, is absent. The evidentiary record on this motion does not provide me with the evidence necessary to reach a fair and just determination of the genuine issue requiring trial concerning Liberty’s operational involvement in the Condominium project.

Representations of Liberty’s Involvement in the Condominium Project

[74] There is another genuine issue requiring trial: namely, whether Liberty made a marketing representation that it was involved in the construction management of the Condominium project.

[75] The promotional brochure for the Condominium project made two references to Liberty:

a) The logo/ wordmark for Kantium Inc., featured prominently on each of the 21 pages of the brochure, including on each floorplan, contained the following: “With cooperation of Darcon Incorporated (Branch of Liberty Development Corporation)”;

b) In the description of “Construction Management” contained on the page entitled “Sharing a Singular Clarity of Vision”, the following was stated: “Darcon Inc. (Branch of Liberty Development Corporation) has been setting the standard for building quality homes and communities in the GTA for many years. Responsible for a series of innovative residential, commercial and office developments across the city, the principals have over 30 years of hand-on experience in the design and construction of projects which preserve and enhance the communities in which they reside.”

[76] Ms. Michelle Afagh Parvizian is an immigration consultant who purchased two condominium units in the Condominium project. Ms. Parvizian testified that she saw a sales banner or flag on the exterior wall of the sales office for the Condominium project that announced that Liberty was involved. She swore that she knew Liberty by reputation as a trusted and reputable condominium builder and developer and was induced to consider the purchase of a condominium by the representation of Liberty’s involvement. Ms. Parvizian stated that her understanding of Liberty’s involvement was confirmed by the statements made in the marketing materials that Kantium Inc. was developing the Condominium project: “With cooperation of Darcon Incorporated (Branch of Liberty Development Corporation)”.

[77] Liberty denied, through Mr. Uster’s sworn testimony that the references to Liberty in these marketing document were created by or for Liberty or were authorized by Liberty. Mr. Uster denies that there was any flag or banner that promoted Liberty’s involvement and testified that if there was any such flag or banner, it was used without Liberty’s authority or consent.

[78] Mr. Mohammadi, the principal of the developer 520 Steeles, is an engineer by profession who, in 2007, bought the land on which the Condominium was built and then began the process of bringing the Condominium project to market. Mr. Mohammadi testified that he was referred to Liberty to address the construction management of the project, and met with Mr. Darvish. After negotiations with Mr. Darvish and Mr. Brendan Murphy of Darcon, Mr. Mohammadi believed that he had an agreement that Liberty and Darcon would manage the construction of the Condominium project, in his words, “basically from A to Z”.

[79] Mr. Mohammadi testified concerning the design of the marketing materials. He stated that the representation on the marketing materials of Liberty’s involvement in construction management with Darcon was done with the input and approval of Mr. Darvish on behalf of Liberty and Mr. Murphy on behalf of Darcon. This evidence is in stark contrast to the evidence of Mr. Uster. The evidence of Mr. Darvish and of Mr. Murphy is not available in this motion.

[80] The record before me on this motion does not provide the evidence necessary to reach a fair and just determination of whether Liberty made a marketing representation, with Liberty’s authority, that it was involved in the construction management of the Condominium project. This is a genuine issue requiring trial for its determination.

Liberty’s Relationship with Darcon

[81] The plaintiff submits that there is also a genuine issue requiring trial concerning the relationship between Darcon and Liberty as “co-venturers” or “co-performers” of the Construction Management Contract. In support of this submission, the plaintiff relies heavily on Darcon and Liberty having common officers and directors, that the companies carry on business from contiguous offices and, according to Mr. Vossough, that there is a sharing of employees.

[82] The Construction Management Contract was executed on June 1, 2010 by Mr. Mohammadi for 520 Steeles and by Mr. Murphy for Darcon. 520 Steeles thereafter received bills pertaining to the construction management only from Darcon. Mr. Mohammadi swore that Mr. Vossough was the superintendent of the construction management and reported to Mr. Murphy. When examined regarding his understanding of the relationship between Darcon and Liberty in the construction management of the Condominium project, Mr. Mohammadi stated:

Well, to make it very clear, it was all about Liberty. I did not know Darcon existence (sic) before that. Liberty had the name, it had building (sic) all over the town. They were well known in the industry and I needed somebody with a good name and a big name to help us with this project, and that was Liberty.

[83] When cross-examined on the issue that Liberty and Darcon were two separate corporations, Mr. Mohammadi stated that the two corporations were indistinguishable: “My understanding is that Liberty’s Darcon and Darcon is Liberty”. When Mr. Mohammadi was asked about whether he understood that Mr. Vossough was affiliated with Darcon when forwarding emails with Liberty logo and address, Mr. Mohammadi testified that: “They were all as a team. Liberty, Darcon, I don’t see any separation.”

[84] The issue of Liberty’s relationship with Darcon is connected with the issue of Liberty’s operational involvement, and is pertinent to the determination of the Negligence Issue and the Joint Liability Issue and ought to be determined together with that issue on a full record at trial.

Summary – There are Genuine Issues Requiring Trial

[85] The summary judgment process must provide the judge with the evidence required to adjudicate the dispute. As the court in Hryniak stated, at para. 66: “There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).”

[86] I have determined that there are genuine issues requiring a trial concerning Liberty’s operational involvement in the Condominium project, Liberty’s alleged representations to others concerning its involvement and Liberty’s relationship as a co-venturer or co-performer along with Darcon in the role of construction manager. These issues form the foundation of the Negligence Claim and the Joint Liability Claim. I am not satisfied that sufficient evidence has been presented on all relevant points to allow me to make the determinations necessary for dispositive findings under Rule 20. In the absence of a sufficient evidentiary record, application of the tools set out in Rule 20.04(2.1) will not allow for a just and fair determination of the genuine issues that have been identified.

F. Analysis – Partial Summary Judgment in the Context of the Litigation as a Whole

[87] Notwithstanding my determination that there are genuine issues requiring trial, thereby necessitating the dismissal of this summary judgment motion, I will, for completeness of analysis, address the plaintiff’s submission that this motion ought to be dismissed on the basis that it is inappropriate in the context of the litigation as a whole.

[88] In Hryniak, the Supreme Court stated that in summary judgment motions that do not resolve the entirety of the issues raised by the action, there is an added consideration: namely, the “interest of justice analysis” mandates consideration of the consequences of the summary judgment motion to any surviving elements of an action. This is not to be taken as a wholesale prohibition against granting partial summary judgment. Indeed, Hryniak itself was an appeal of a partial summary judgment in which partial summary judgment was upheld. Rather, partial summary judgment cases require assessment of whether the determination of a portion of the action assists or impairs the fair and just adjudication of the remainder of the action.

[89] Following Hryniak, several decisions by the Ontario Court of Appeal have provided guidance on the motion judge’s assessment of the advisability of summary judgment in the context of the litigation as a whole. In Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, the motions judge held that he could determine on summary motion the validity of a release but not the two promissory notes that were part of the same transaction. The Court of Appeal reversed, finding that the granting of partial summary judgment by the motions judge risked inconsistent findings, and thereby substantive injustice, to the parties in relation to the surviving issues. The Court of Appeal stated that the motions judge is required to “assess the advisability of the summary judgment process in the context of the litigation as a whole”: Baywood, at para. 33.

[90] An identical finding was made in Hamilton (City) v. Their + Curran Architects Inc., 2015 ONCA 64, where, relying on Baywood, the court stated, at para. 22, that “a summary judgment motion judge commits an error in principle when he or she fails to assess the advisability of the summary judgment process in the context of the litigation as a whole.” In that case, a motions judge’s dismissal of third party actions was overturned on the basis that it created a risk of inconsistent findings of fact by and between the parties and was thereby not a proportionate means to achieve a just result.

[91] In Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, the Court of Appeal overturned a motion judge’s dismissal of a lender’s claim in negligence against the defendants in circumstances in which the lender’s surviving claim for misrepresentation would proceed to trial. The motion judge ordered the partial summary judgment on a finding that there was no risk of duplicative or inconsistent findings in dismissing part of the lender’s claim. The Court of Appeal ordered that the negligence claim proceed to trial on the basis that the facts found by the motion judge would likely be at issue in the trial of the claim for misrepresentation, such that there was a real risk of duplicative or inconsistent findings at trial. The Court of Appeal cautioned, at para. 4, against granting partial summary judgment except where there is “no risk of duplicative or inconsistent findings at trial and [where] granting summary judgment [is] advisable in the context of the litigation as a whole”.

[92] In Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, the motions judge granted summary judgment in regard to one cause of action between the parties without final determination against any party. In reversing, the Court of Appeal stated that in addition to the danger of inconsistent or duplicative findings considered in Baywood and CIBC, partial summary judgment raises a series of further problems that are contrary to the principles of efficiency and proportionality raised in Hryniak: namely, summary judgment motions cause the progression of the action to be delayed; a motion for summary judgment can be very expensive; significant court resources are required to address an increase in the volume of summary judgment motions; and the record available on a summary judgment motion will not likely be as expansive as a record at trial, giving rise to the potential for inconsistent findings. As a result, the Court of Appeal provided the following caution, at para. 34:

When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.

[93] Recent cases where partial summary judgment is upheld all have a common element: the partial summary judgment resolved a discrete issue that could be separated from the other claims or parties in the surviving case. In Sirois v. Weston, 2017 ONCA 1002, the court upheld a lower court decision to dismiss a claim due to the expiry of a limitation period on the finding that limitation periods are distinct issues that can be severed from the surviving issues in the case. In Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125, a motions judge’s order granting summary dismissal of several, but not all, claims against doctors and ambulance attendants was upheld even though claims against a hospital were left to be determined at trial. The Court of Appeal stated, at para. 3, that “this is precisely the type of case that summary judgment is designed to address”, because it achieved the objectives of proportionate, cost-effective and timely dispute resolution without impacting the remaining elements to be adjudicated.

[94] The jurisprudence highlights that a motion judge hearing a summary judgment motion must balance the competing objectives set out in Hryniak: namely, the court must weigh the efficiencies achieved by some summary resolution against the risk of duplicative or inconsistent findings in the surviving elements of the case. The motion judge must be certain that the net result of the partial summary judgment process is an overall increase in efficiency in adjudicating the case. I adopt the summary stated by Myers J. in Mason v. Perras Mongenais, 2018 ONSC 1477, at para. 32, that “[t]he question then is whether the risks of duplication and inconsistent findings outweigh the benefits of summary resolution and preclude summary resolution from being proportionate where the case is brought to an end against some but not all of the parties.”

[95] In conducting this balancing, I have determined that the risk of duplicative and inconsistent findings outweighs the benefits of summary resolution and thereby precludes summary determination from being proportionate in this instance, as follows:

a) The Negligence Claim and the Joint Liability Claim both make claims against Liberty as part of a group of “Developers”. No efficiency will be gained by making the determinations that would be necessary to dismiss this action against one member of this group. I agree with Belobaba J.’s finding, in Teti v. Mueller Water Products Inc., 2015 ONSC 4434, 134 C.P.R. (4th) 249, that issues of joint exposure amongst defendants, in that case group enterprise exposure, cannot efficiently be determined on summary motion;

b) The Joint Liability Claim necessitates detailed assessment of the relationship between Darcon and Liberty, including analysis of documentary evidence that will be examined at trial for multiple purposes. There is no efficiency in conducting phased analysis on the same materials;

c) The complex issues of inter-corporate connections and interactions cannot efficiently be determined on this summary motion. Neither can determination of liability of a single defendant of many in circumstances in which all are alleged to share in joint responsibility for deficiencies in the Condominium project;

d) The areas of conflicting testimony on this motion would be assisted by reference to pertinent documentary evidence. As the document base in this case exceeds 30,000 documents, to which Liberty has not produced any, there is the risk that the documentary evidence tendered on the motion is not fairly representative of the totality of the material evidence. This heightens the potential that a finding on this sampling of material on this motion may be inconsistent with a finding on the broader body of documentary evidence available at trial;

e) It is not just and fair to the plaintiff to require the plaintiff to prove its case against Liberty on summary motion when the same case must then be proven against the remainder of the Developer group at trial. This is not efficient or proportionate.

[96] Fundamentally, the case against Liberty is not sufficiently discrete to fall within those types of cases where partial summary judgment is appropriate.

Summary – Partial Summary Judgment

[97] The mandate to assess the advisability of the summary judgment process in the context of the litigation as a whole requires an assessment of whether the summary judgment sought achieves the goals of efficiency and proportionality or runs counter to these objectives. Summary judgment of part of the claims involving a single member of the defendant group in this case would be counter-productive to the objective of achieving a just and fair adjudication for all. This summary judgment process gives rise to a potential for duplicative or inconsistent findings in the adjudication of the myriad surviving elements of this action involving the remaining defendants and is thereby not a proportionate means to achieve a just result

[98] Had I determined that the genuine issues identified on this motion were capable of being adjudicated using the tools set out in Rule 20.04(2.1), I would have nonetheless declined to grant summary judgment on the basis that the summary judgment sought by Liberty was not advisable in the context of the litigation as a whole.

G. Disposition

[99] The motion by YRSCC No. 1206 to admit into evidence the Kruse Report is dismissed.

[100] Liberty’s motion for summary judgment is dismissed.

H. Costs

[101] The plaintiff and the defendants Liberty and Darcon are encouraged to discuss and attempt to resolve the issue of costs of the summary judgment motion and the motion to adduce expert evidence, as well as the costs reserved to this motion from earlier hearings, namely: (i) the costs of the plaintiff’s motion of September 29, 2017 to stay or dismiss the summary judgment motion, and; (ii) the costs of the plaintiff’s pleading amendment motion of January 18, 2018.

[102] In the event that the parties are not able to reach agreement on the issue of costs, the plaintiff may deliver, within 15 days of the release of these Reasons for Decision, written submissions on costs of no more than 5 pages in length not including cost outline and any offers to settle. The defendants Liberty and Darcon may deliver, within 30 days of the release of these Reasons for Decision, their written submissions on costs of the same length. I will then consider the submissions and issue my decision on costs through an endorsement.

Sanfilippo J.

Date: June 15, 2018

COURT FILE NO.: CV-16-548539

DATE: 20180615

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

REASONS FOR decision

Sanfilippo J.

Released: June 15, 2018