Court File and Parties

COURT FILE NO.: C-6223-16 DATE: 20190225 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

John Beaudry and Diana Daypuk, Plaintiffs – and – City of Greater Sudbury, Greater Sudbury Utilities Inc. and Greater Sudbury Hydro Inc., Defendants – and – Norman Cecil Eady, Melanie Eady and Cliff Richardson, Intervenors

Counsel: Douglas F. Best and Jessica Pei, for the Plaintiffs Marc A.J. Huneault, for the Defendant the City of Greater Sudbury Michael Hennessy, for the Defendants Greater Sudbury Utilities Inc. and Greater Sudbury Hydro Inc. Joseph Marcuccio, for the Intervenors

HEARD: January 23, 2019

DECISION ON MOTION

Robbie D. Gordon J.:

Overview

[1] The Plaintiffs have brought proceedings against the Defendants seeking injunctive relief, various declarations and damages. There is a pending motion for an interlocutory injunction in which affidavits have been exchanged. Cross-examination on those affidavits are pending. In the motion currently before me, the Plaintiffs seek discovery of documentation said to be in the possession of the City of Greater Sudbury (the “City”) in advance of conducting the cross-examination.

Background Facts

[2] In 2010 the Plaintiffs acquired property on the shores of Ramsay Lake accessible from a cul-de-sac known as Keast Drive and known as 1377 Keast Drive in Sudbury. By early 2015 they had begun planning to build a residence on their property.

[3] In late 2015 they applied for and obtained three permits from the City in anticipation of construction. They first applied for and obtained a “Driveway Entrance Permit”. The sketch submitted in support of the application for this permit indicated a proposed paved driveway leading from the end of Keast Drive westerly to the Plaintiffs’ property over part of the unopened road allowance for Keast Drive. They next applied for and obtained a “Site Alteration Permit”, required primarily to identify proposed grading and landscaping for the property. Appended to this application was a detailed plan indicating landscaping on parts of the unopened road allowance for Keast Drive. Lastly, they applied for and obtained a building permit for the residence itself.

[4] For some time, the City had been contemplating changes to the cul-de-sac at the end of Keast Drive to address safety concerns arising out of snow removal operations there. In June of 2016 the City determined to increase the size of the cul-de-sac by removing certain trees, relocating a hydro pole and extending Keast Drive. On June 22, 2016 City officials had an onsite meeting with two of the Plaintiffs’ neighbours to explain the plan. Neither of the Plaintiffs had been invited to this meeting. The results of that meeting appear to have been shared with the Plaintiff John Beaudry by way of email sent by the neighbour Norm Eady that afternoon.

[5] On or about July 11, 2016, the Plaintiffs undertook the work they believed to be authorized by their “Driveway Entrance Permit” and “Site Alteration Permit”. In particular, they constructed their driveway on the unopened road allowance by spreading aggregate and paving over it thereby diminishing the size of the proposed new cul-de-sac and compounding the snow removal problems the City was intent on resolving. Mr. Eady, one of the neighbours, also complained to the City that the Plaintiffs’ driveway construction impeded their access to Keast Drive, created an unsafe turning radius to access his driveway, and impeded his ability to install buried utility lines.

[6] The City determined that the Plaintiffs had done work well beyond what was authorized in the various permits that were issued to them. In particular, the City was of the view that it had authorized no work upon the unopened road allowance, and that the Plaintiffs had failed to obtain the necessary “Road Occupancy Permit” for that work. Accordingly, it issued an “Order to Comply” to the Plaintiffs on October 3, 2016 ordering them to return Keast Drive to its previous state failing which the City would undertake the work at the Plaintiffs’ cost.

[7] This precipitated this action and the request for an injunction that will ultimately be decided by this court.

[8] The two neighbours with whom the City met on June 22, 2016, are now interveners in this proceeding as it has been determined that they have an interest in the subject matter of the proceedings and may be adversely affected by any judgment rendered herein.

[9] The Plaintiffs intend to argue, among other things, that the City has acted in bad faith towards them and have preferred the interests of the interveners over their interests. To that end they have requested from the City the following:

a. Any and all records respecting the property known municipally as 1380 Keast Drive, its owners Norman Eady and Melanie Eady which relate to: the road right of way abutting, access to and from the property, the driveway to 1380 Keast Drive; construction on, or near or related to access and egress to the abutting road or the driveway to the road right of way abutting; b. Any notes, memos, records, charges, correspondence, summons, notices, demands or warnings to the owners of 1380 Keast Drive, whether or not related to any actions, landscaping, driveways, paving, grading, fences, walls, pillars, gates, installations or encroachments carried out or located by the owners or occupiers on the road right of way; c. Any and all records respecting the property known municipally as 1366 Keast Drive, its owner Cliff Richardson which relate to: the road right of way abutting, access to and from the property, the driveway to 1366 Keast Drive; construction on, or near or related to access and egress to the abutting road or the driveway to the road right of way abutting; d. Any notes, memos, records, charges, correspondence, summons, notices, demands or warnings to the owners or occupiers of 1366 Keast Drive, whether or not related to any actions, landscaping, driveways, paving, grading, fences, walls, pillars, gates, installations or encroachments carried out or located by the owners or occupiers of that property on the road right of way; e. Without limiting the generality of the foregoing, the production of any and all records of any correspondence, telephone calls, complaints, meetings or any other communications with any person at either the City or Sudbury Hydro, including staff and councilors related to those portions of Keast drive abutting the property at 1377 Keast Drive or the applications for permits, licenses, approvals, permission for that land or the construction of the Plaintiffs’ house on that land.

[10] The Plaintiffs served the City and the Interveners with a Notice of Examination requiring them to produce these documents at their cross-examination on affidavits. The City and Interveners replied that they would not be producing the requested documents. The Plaintiffs brought this motion to have the issue determined.

The Applicable Law

[11] The motion is brought pursuant to Rule 34 of the Rules of Civil Procedure, which applies to, among other things, cross-examination on an affidavit for use on a motion.

[12] Rule 34.10(2)(b) provides that on any such examination, the person to be examined shall bring and produce for inspection, all documents and things in his possession, control or power that are not privileged and that the notice of examination requires the person to bring.

[13] Rule 34.10(3) provides that the notice of examination may require the person to be examined to bring and produce for inspection all documents relevant to any matter in issue in the proceeding that are in his or her possession, control or power and are not privileged.

[14] Rule 29.2.03 is also applicable to this motion. It provides that in making a determination as to whether a party or other person must produce a document, the court shall consider whether: (a) the time required for the party to produce the document would be unreasonable; (b) the expense associated with producing the document would be unjustified; (c) requiring the party to produce the document would cause him undue prejudice (d) requiring the party to produce the document would unduly interfere with the progress of the action; (e) the documents are readily available to the party requesting it from another source. Rule 29.2.02(2) also requires that I consider whether such an order would result in an excessive amount of documents required to be produced.

[15] In brief, the Plaintiffs’ request is to be determined on two factors: (1) the relevance of the documents requested; and (2) proportionality.

Analysis

[16] In R. v. Watson (1996), 108 C.C.C. (3d) 310, Doherty J.A. determined that relevance:

…requires a determination of whether as a matter of human experience, and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact “A”. If it does, then “Fact A” is relevant to “Fact “B”. As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation, then ‘Fact A” is relevant and prima facie admissible.

[17] In a civil action, the facts in issue are established by the pleadings. As noted above, the Statement of Claim in this action seeks injunctive and declaratory relief along with damages. The Plaintiffs’ various claims are grounded in negligence, negligent misrepresentation, and estoppel.

[18] In this motion, the Plaintiffs seek production of certain records which they say are relevant to the City’s bad faith towards them in the issuance of the order to comply, and its unfair treatment of them as compared to the manner in which it has acted favourably towards the interveners.

[19] The issue is whether the City’s bad faith or unfair treatment of the Plaintiffs (“Fact A”) is relevant to the claims of negligence, negligent misrepresentation or estoppel they have made.

[20] The Statement of Claim makes no allegation of bad faith on the part of the City, no allegation that the Plaintiffs were treated unfairly in comparison with their neighbours and no allegation that the Plaintiffs were aware of or relied upon the manner in which the City dealt with others. In my view, evidence of bad faith or unfair treatment is not relevant or material to the causes of action pleaded by the Plaintiffs.

[21] Insofar as damages are claimed, tort law seeks to compensate a wronged party by putting him or her back in the situation he or she was prior to the commission of the wrongful act. In the absence of a claim for aggravated or punitive damages, bad faith or unfair treatment does not enter into the damages analysis. No such damages are sought in this case.

[22] With respect to the injunctive relief claimed, the Plaintiffs urged me to accept that bad faith and unfair treatment would be relevant to the assessment of the equities between the parties.

[23] On consideration of a request for an injunction the court is required to consider: (1) the merits of the action to determine whether there is a serious question to be tried; (2) whether the Plaintiff will suffer irreparable harm; and (3) where the balance of convenience may lie.

[24] As set out above, the statement of claim in this case does not allege bad faith or unfair treatment of the Plaintiffs and does not plead causes of action in which bad faith or unfair treatment would constitute material facts. It follows that such claims have no relevance to the merits of the case as currently framed. Similarly they have no bearing on whether or not the Plaintiffs will suffer irreparable harm. The balance of convenience speaks to who will suffer the greater harm from the granting or refusal of the injunction and would not engage arguments of bad faith or unfair treatment.

[25] In summary, bad faith and unfair treatment have no relevance to the proceeding as it is currently framed.

[26] At the hearing of this motion, counsel for the Plaintiffs made an oral request for leave to amend the Statement of Claim, if necessary, to make allegations of bad faith and unfair treatment as alleged in the motion materials. There was no motion for leave before me nor any notice of motion to amend the Statement of Claim. His request, made orally, was without notice to the Defendants. Our rules do not provide for oral motions of this sort, and in my view it would be unfair to entertain the request for leave or the motion itself without advance notice in writing to the defendants of the specific amendments sought and new causes of actions alleged.

[27] Accordingly, insofar as the Plaintiffs’ motion seeks the production of documents whose sole relevance would relate to bad faith or unfair treatment by the City, it must fail. In my view, that would include the request for documents relating to 1380 Keast Drive and its owners, and the documents relating to 1366 Keast Drive and its owners.

[28] However, records of correspondence, telephone calls, complaints, meetings or any other communications with any person at the City of Sudbury including staff and councilors, related to applications for permits, licenses, approvals, or permission for 1377 Keast Drive or the construction of the Plaintiffs’ home on it are relevant and ought to be produced. None of the factors set out in Rule 29.2.03 would operate to relieve the City of this obligation and it is ordered accordingly.

[29] If the parties are unable to agree on costs they may make written submissions to me, limited to three pages plus attachments each, within 45 days.

The Honourable Mr. Justice Robbie D. Gordon Released: February 25, 2019