Endorsement

COURT FILE NO.: CV-15-536748 DATE: 20180723 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carillion Construction Inc., Plaintiff – AND – City of Toronto, Defendant

COURT FILE NO.: CV-16-564857 AND RE: Carillion Construction Inc., Plaintiff – AND – NORR Limited, Defendant

COURT FILE NO.: CV-14-516955 AND RE: City of Toronto, Plaintiff – AND – NORR Limited, Defendant

COUNSEL: Christopher Hubbard and Keith Bannon, for Carillion Construction Inc. Kevin O’Brien, Roger Gillott, and Carly Fidler, for the City of Toronto Gregory Hersen, for Metrolinx Glen Ackerley and Andrea Gorys, for NORR Limited Michael Richards, for Geo. A. Kelson Co. Limited Daniel Campoli, for Urban Electrical Contractors Karen Groulx, for Otis Elevators Anthony Scane, for Avenue Building Corp. and York Marble, Tile & Terrazzo

BEFORE: E.M. Morgan J.

HEARD: July 23, 2018

CASE CONFERENCE – JULY 23, 2018

[1] Counsel have once again updated me with respect to the progress made since our last case conference in June 2018.

[2] Carillion has notified the City that there are 12 documents that were not included in the City’s productions which in its view should have been there. Considering that the City has produced some 500,000 documents in all, a disagreement over 12 documents isn’t all that bad. Counsel for the City advises that even this is close to being cleared up. Apparently, 4 of the documents turned out to already be produced, another 4 don’t exist and were identified only because of a misreading of other documents, 3 have been produced pursuant to Carillion’s request, and 1 is irrelevant according to the City. Counsel have been working cooperatively in terms of the documents, and I would expect that cooperative effort to continue.

[3] Master Albert has scheduled a motion date for August 28, 2018 for the City to move, if necessary, against the several subcontractors who have not produced documents. The Master has also scheduled a hearing for directions with respect to the construction lien matters. This is set for May 13, 2019, subsequent to the March-April mediation, in the event that there are still live issues to be considered at that point.

[4] Counsel for the City advises that NORR delivered its Statement of Claim on July 11, 2018, and that the City will be defending that action in due course. Counsel are in discussion with one another as to the timing of that defence.

[5] Counsel for Carillion advises that all subcontractors have now responded and will be participating in the mediation as scheduled. As outlined in my endorsement from the June 21, 2018 case conference, the smaller subcontractors will be participating indirectly through Carillion while the larger ones will be participating directly.

[6] As also set out in my previous endorsement, any subcontractors who intend to serve expert reports or updated claim documentation were to do so, or at least advise the City of their intention to do so, by this week. The City has heard from four of those subcontractors – Quantum Murray (will serve an expert report), Phoenix Restoration (will provide updated claim documentation), Urban Electrical (will serve an updated expert report), and Gilbert Steel (will provide a Key Documents brief). No other subcontractor may now serve an expert report or updated claim documentation without obtaining my leave to do so.

[7] As required in my previous endorsement, Metrolinx served a Demand for Particulars, a Request to Inspect, and a Notice of Motion to Strike on July 13, 2018. The City served its Response to Demand for Particulars on July 20, 2018. Counsel for Metrolinx advises that it is still not satisfied with the particulars provided by the City, and is contemplating a Motion in that respect. It is also contemplating a Motion to Strike in respect of that portion of the City’s Amended Third Party Claim that sets out an independent cause of action against Metrolinx (i.e. the claim advanced by the City other than the contribution and indemnity portion of the City’s claim against Metrolinx).

[8] Counsel for the City takes the position that the Demand for Particulars has been adequately responded to, and that most of what is outstanding is a demand by Metrolinx that the City quantify its damages. Since counsel for Metrolinx takes issue with that, a date for the Motion for Particulars has been set to be argued before me on October 1, 2018. A date for any further motion to strike to be brought by Metrolinx will be set at that time.

[9] Counsel for the City is anxious to know whether Metrolinx will be participating in the mediation in March-April 2019. While the City’s third party action against Metrolinx is proceeding along a separate track as the main action, counsel for the City anticipates that Metrolinx’ participation in the mediation will potentially have an impact on its outcome.

[10] For his part, counsel for Metrolinx is of the view that it is premature for his client to make a decision as to whether it will be in a position to participate in the mediation. Metrolinx was served with the City’s claim a year after the litigation was underway for all of the other parties, and counsel is concerned that Metrolinx not be unfairly pressed for time in order to fit into the mediation schedule. In any case, Metrolinx may have to await the result of the Motion for Particulars in order to make a determination as to whether or not it will participate.

[11] It seems fair to me to allow Metrolinx to wait to make its decision about participating in the mediation until it has the results of the Motion for Particulars (or is satisfied that it has all of the particulars from the City and therefore abandons the motion). I do not want to derail the separate process for the City’s action against Metrolinx, but at the same time I do not want to schedule the Metrolinx matters in such a way that could jeopardize the mediation session.

[12] Counsel for the City advises that the City is contemplating a Motion to compel Metrolinx’ attendance at mediation if it does not do so of its own accord. If that comes to pass, it must be resolved early enough to allow for the mediation to proceed as scheduled. I therefore will require that counsel for Metrolinx advise counsel for the City as to whether Metrolinx intends to participate in the mediation within one week of receiving a decision in the Motion for Particulars or, if it decides to withdraw the Motion for Particulars, within one week of notifying counsel for the City that it is withdrawing the Motion.

[13] I would ask counsel for Carillion to canvass the other counsel and to be in touch with my assistant with a number of possible dates for the next case conference.

Morgan J.

Date: July 23, 2018