Court File and Parties
COURT FILE NO.: CV-15-536748 DATE: 20181015 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, Brendan Bowles, Daniel Goudge, and Lena Wang, for Carillion Construction Inc. Roger Gillott and Sarah McLeod, for the City of Toronto Andrea Gorys and Glenn Ackerley, for NORR Limited
BEFORE: E.M. Morgan J.
HEARD: October 12, 2018
Scheduling of CARILLION’S productions motion
[1] Carillion has brought a motion against the City of Toronto and NORR Limited for further productions. This case conference has been convened in order to address the scheduling of that motion.
[2] The three main parties to this complex set of actions relating to the large-scale construction project at Toronto’s Union Station are Carillion (general contractor of the project), the City (owner of the part of Union Station relevant to Carillion’s claim), and NORR (architectural firm for the project). These parties completed what have been termed executive discoveries on September 26, 2018. More discoveries of these parties will be scheduled later if necessary, as will examinations for discovery of the many subcontractors and other parties in respect of claims related to the same overall project.
[3] A schedule has been set in series of case conferences with me, with a view to working as expeditiously as possible to make full production and to conduct sufficient discovery to allow the parties to assess settlement prospects at a mediation session set for March-April 2019. Last week, on October 4, 2018, Carillion served the City and NORR with a Motion Record seeking further productions from each of them.
[4] Carillion’s motion has not yet been argued. As a preliminary matter, the City and NORR object to the motion proceeding at this time. They take the view that the parties’ time and resources would be better spent working with their respective experts on the expert reports which are due within a couple of months, and examining the nearly 7 million documents that have already been exchanged among them – all in preparation for the mediation session this coming spring.
[5] Indeed, counsel for the City goes farther than to say that preparing for the mediation will be a more fruitful use of time; it is the City’s estimation that if Carillion were to get the production Orders that it seeks, it will be impossible to accomplish the task of retrieving and vetting the relevant documentation before March-April 2019 rolls around. Apparently, many of the documents sought by Carillion are on back-up computer tapes that require a laborious process in order to put them into accessible form. There may be hundreds or even thousands of emails and other digital documents involved.
[6] The mediation is set to last 5 days and will include all three of the main parties as well as all of the subcontractors and sub-subcontractors. It is fair to say that the pending mediation represents the parties’ best hope for achieving an omnibus settlement of this complex set of claims. The City and NORR submit that if there is no settlement at the mediation, Carillion’s motion for production and any other procedural motion can proceed at that time.
[7] Carillion submits that it has a right to further production prior to the mediation so that it can assess its position as accurately as possible before deciding whether to compromise any of its claims in a settlement agreement. It also takes the view that it is important for the City and NORR to understand that they will have much work on their hands and will be required to proceed energetically with the litigation after the mediation ends if it does not result in a full settlement. Accordingly, Carillion has included in the relief sought in the motion an Order that if the litigation is not settled in the March-April mediation the parties are required to complete all examinations for discovery by September 30, 2019.
[8] Since this debate is all taking place at a case conference, it is only the schedule for Carillion’s motion, and not its merits, that are under consideration here. The City and NORR have yet to respond to Carillion’s Motion Record with materials of their own; likewise, no cross-examinations have taken place and factums have not been submitted. All that has been filed with the court thus far is Carillion’s Motion Record.
[9] That said, it is worth taking a brief look at the heads of relief sought by Carillion in the motion in order to evaluate whether or not timing is crucial to the motion. Carillion seeks 6 Orders, which can be summarized as follows:
a) An Order requiring production from 3 City of Toronto senior officials – Josie Scioli (Deputy City Manager and former Chief Operations Officer), Chuck Donohue (Executive Director of the Facilities Management Division, former Executive Director of Facilities and Real Estate), and Rob Rossini (former Chief Financial Officer ad Deputy City Manager) – who are said to be custodians of City documents relevant to the Union Station project and to Carillion’s claim. The City has collected Mr. Donohue’s documents from the archived tapes, but has not collected Ms. Scioli’s or Mr. Rossini’ documents, and the process for doing so is laborious. According to Rick Tolkunow, the City’s representative at discoveries, these three individuals were the conduit between the project team and City council. They also authored staff reports, which are already produced in the record, that provide the reasons for increased project budgets dealing with “unforeseen site conditions”, etc. Although Carillion has the staff reports, it would like to see the emails, correspondence, memos, etc. that went into their creation.
b) A production Order for relevant documents from some 21 other City of Toronto employees who are said to be custodians of documents. Unlike the 3 senior officials discussed above, Carillion is prepared to wait until the termination of the mediation session for production from these City employees. Carillion does, however, want it determined in a motion now that the documents over which these 21 individuals are custodians must eventually be produced.
c) An Order requiring the City and NORR to produce all documents exchanged between them since commencement of the City’s action against NORR. Counsel for the City submits that this will entail arguments about various categories of privilege, including solicitor-client privilege, litigation privilege, and common interest privilege, and that the legal briefing and research needed to defend such a motion is extensive. Counsel for Carillion essentially agrees that the argument will be around privilege, but he says that the issues are relatively straightforward and a factum on privilege is a standard kind of document that litigation lawyers are constantly required to produce. The City estimates that there may be in the range of 400 documents to vet, although NORR states that the number may be a smaller than that.
d) An Order requiring the City to answer questions refused during discoveries. There are apparently 6 refusals, but 4 of them relate to privilege. Again, counsel for the City and Carillion disagree on how complex the legal argument will be.
e) An Order requiring NORR to answer questions refused during discoveries. Counsel for NORR explains that the questions in issue relate to NORR’s fee claim against the City, much of which has to do with NORR’s assisting the City with answering the claim by Carillion. Again, common interest or other categories of privilege may be in issue.
f) As already indicated, an Order that if the litigation is not settled at the upcoming mediation, the parties are require to complete all discoveries by September 30, 2018. The City says that this is premature, and that a schedule of proceedings that will take place after the mediation can logically wait until after the mediation. Carillion says that this schedule should be determined now as a way of focusing the mind on the future when the parties consider their options during the mediation.
[10] In my view, both sides are overstating their positions just a bit in their respective approaches to this motion. For Carillion, it seems unlikely that after sorting through the 6.9 million documents already in the record there will be a ‘smoking gun’ or anything that truly tips the scales in the documents they now seek. That is not to say that in the ordinary course they do not have a right to them; I make no comment here on the merits of the production request. But it is a stretch to say that Carillion requires these documents prior to the mediation.
[11] The three City officials from whom documents are sought are at the top of the municipal staff ladder. They signed off on staff reports which the City has already produced and which, according to Carillion’s counsel, shed considerable light on the City’s approach to the Union Station project and are very helpful to Carillion’s case. But Ms. Scioli, Mr. Donohue, and Mr. Rossini are, according to the City’s counsel, not the authors of the reports. The reports were authored by staff members under them; the three top tier managers were the nominal signers of the staff reports, but the hands-on work was done by others.
[12] The documents that these three high level officials can be expected to have in their possession are correspondence and staff-generated documents on which they were one of a number of people copied by virtue of being at the top of the City’s staffing pyramid. Such documents may or may not make for good material for Carillion and its counsel to rummage through at some point, but they seem no more likely to add to anyone’s settlement calculus at the mediation than do the kind of questions left out of the executive discoveries and saved for the full discoveries that may come later.
[13] The same is true for the documents that Carillion seeks as between the City and NORR. There will be an argument over privilege, but, more importantly, it seems unlikely that there is much in the way of substantive ammunition that Carillion will gain if it succeeds in getting hold of correspondence between its two adversaries dating from after commencement of the litigation. Again, that is not to pre-judge the motion; rather, it is to sprinkle a dash of realism onto Carillion’s statement that it needs to be as well-armed with information as possible before it can think about compromising its rights in a settlement if one is proposed at the mediation.
[14] It will be no surprise that the City and NORR blame Carillion for many of the problems and cost overruns of the project, and at the same time point fingers at each other. One can glean that from the title of the various pleadings alone. Carillion already has as part of the millions of documents disclosed in the case thus far, all of the documents that have been exchanged in the action between the City and NORR. It is unlikely that there is more material in the 400 or so undisclosed and arguably privileged documents that will impact on Carillion’s calculation of its own potential liability when it comes to a settlement proposal.
[15] For the City, it is likewise a stretch to say that it cannot possibly argue the production motion in the upcoming weeks or months. What the City really means is that if it loses the motion it may take until after the mediation to actually collect and deliver the documents to Carillion. The question of whether the Scioli-Donohue-Rossini documents are producible can be argued and answered before the City goes to all of the work it apparently takes to access and review them.
[16] Carillion, of course, wants the documents produced. However, its counsel is candid in indicating that what it most wants is for the City to know that it will have to produce them if the mediation fails. Thus, Carillion’s imperative for an early hearing of the motion has a strategic rationale, and not just a substantive legal one.
[17] As for the City’s response to Carillion’s demand for its correspondence with NORR, the documents can doubtless be collected into groups and addressed in that way. Almost all privilege motions are argued by analyzing categories of documents – e.g. memos or emails to a solicitor, demand letters, correspondence referencing Carillion, invoices, architectural drawings, witness interviews, etc. Each category can be assessed for privilege in relatively short order. The City and NORR can then sometime later review the specific documents to see which ones fall within which category before producing any that have been determined to be producible.
[18] Once again, Carillion appears more concerned that the City and NORR be cognizant that they will have to produce these documents eventually than it is to get the documents in its hands before the mediation. The likelihood of finding a game-changing document among these is less than the impact of knowing that this uncomfortable bit of disclosure will have to take place. If the motion goes Carillion’s way, but it then takes some time for the City and NORR to subsequently sort through the 400 or so documents at issue in the privilege motion, Carillion will doubtless find comfort in knowing that the City and NORR will be going into the mediation with this chore on their minds.
[19] As for Carillion’s final head of relief – setting an outside deadline for completion of discoveries if the mediation fails – that can be argued any time. Addressing this request amounts to little more than a few minutes of argument tacked onto the tail end of Carillion’ motion, whenever that gets heard. I can imagine that opposing counsel will have opposing views on this scheduling proposal, but as ongoing case management judge I am familiar enough with the matter that brief oral argument on this point will no doubt suffice to fill me in on each sides view.
[20] All of this is to say that Carillion has a right to bring its motion and there is no cogent reason for it not to proceed prior to the mediation if a suitable date can be found. At the same time, depending on the outcome of the motion and on what I learn further from counsel at the hearing of the motion, there does not appear to be a cogent reason that the City and NORR have to drop everything else and come up with any documents they ordered to produce prior to the mediation. The argument of the motion will take some time, but it is the possibility of having to actually produce everything that Carillion seeks that the City and NORR fear will take an inordinate amount of time. As matters appear to me right now, this latter stage can wait but the former stage need not.
[21] There remains, of course, the problem of finding a convenient date for all three parties and their counsel and, most importantly, for the court. My own fall/winter timetable is already heavily booked with motions and trials. Needless to say, matters do settle or adjourn, and so an opening may be found earlier than otherwise, but that is sometimes just a matter of happenstance. I urge counsel to be in touch with my assistant in order to start the process of fixing a date for the motion.
[22] I would estimate that the entire motion can be done in one full day. However, I would defer to counsels’ assessment if they believe that two days should be reserved.