COURT FILE NO.: 15 55285 A1

DATE: 20190521

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HALTON STANDARD CONDOMINIUM CORPORATION NO. 550, Plaintiffs

AND:

DEL RIDGE (APPLEBY) INC., DEL RIDGE HOMES INC., and THE CORPORATION OF THE CITY OF BURLINGTON, Defendants

BEFORE: The Honourable Mr. Justice Robert B. Reid

COUNSEL: D. A. Schmuck, Counsel, for the Plaintiff P. H. Starkman, Counsel, for the Defendants, Del Ridge (Appleby) Inc., and Del Ridge Homes Inc. M. Nguyen, Counsel, for the Defendant, The Corporation of the City of Burlington

HEARD: March 8, 2019

decision on motion

[1] The defendants have brought a summary judgment motion against the plaintiff. The plaintiff filed three affidavits in response.

[2] In this motion, which is actually a “motion within a motion”, the defendants object to the contents of the affidavits and seek an order: striking out the affidavit of Dave Vella, sworn December 3, 2018; the affidavit of Pat Silano, sworn December 7, 2018; and specific paragraphs of the affidavit of John Kousik sworn December 12, 2018, as well as an ancillary order amending the timetable for completion of the summary judgment motion.

Background:

[3] Halton Standard Condominium Corporation No. 550 (“Halton”) is a condominium corporation relating to a six-storey residential building and a single-level underground parking garage located in Burlington, Ontario.

[4] The defendants, Del Ridge (Appleby) Inc. and Del Ridge Homes Inc. (collectively “Del Ridge”) are alleged to be the builder and vendor of Halton condominium units sold to home buyers.

[5] The defendant, The Corporation of the City of Burlington, (“Burlington”) is a municipal Corporation responsible for the enforcement of the Building Code Act and the Ontario Building Code.

[6] In the main action, it is alleged that there are construction deficiencies as regards the parking garage roof and as to various aspects of the main building. Halton makes allegations of negligence against Del Ridge and Burlington.

[7] The summary judgment motion by Del Ridge is based on its defence that the claim is statute-barred by reason of the expiration of the two-year limitation period set out in the Limitations Act, 2002, S.O. 2002, c.24, Sched. B. Del Ridge has pleaded that the building project was substantially complete in or about March 2009 and that Halton was or ought to have been aware of any possible claim by 2012. The action was commenced in November 2015. Halton responds that the plaintiff’s claim was not discoverable until less than two years prior to the issuing of the statement of claim.

Responding affidavits:

Affidavit of Dave Vella:

[8] Mr. Vella is a “project principal” at WSP Canada Inc., (“WSP”) and was involved in the investigation and analysis of the Halton underground parking garage during 2014 and 2015. He deposed that WSP and its predecessor Halsall Associates each prepared a report identifying deficiencies. The reports were dated October 22, 2014 and July 15, 2015 and were attached to his affidavit as exhibits. According to Mr. Vella, the deficiencies outlined in those reports could not have been discovered by the average homeowner.

[9] Del Ridge and Burlington submit that the affidavit was noncompliant with rule 53.03(2.1) of the Rules of Civil Procedure since together with the attached exhibits it was an expert report and did not include the requisite information.

[10] Noncompliance was not disputed by Halton. However, Halton submits that the opinion was of a participant expert such that compliance with the rule is not required and in any event, the issue on the summary judgment motion is discoverability rather than proof of the construction deficiencies.

Affidavit of Pat Silano:

[11] Pat Silano is a professional engineer and a principal of the SPG Engineering Group Ltd. (“SPG”). He deposed that SPG prepared a number of reports discussing its investigations, conclusions and the repair work it supervised regarding the Halton premises. He participated in the investigations and supervision of repair work. Mr. Silano attached five SPG reports to his affidavit as exhibits, dated from October 14, 2015 to November 9, 2018. He deposed that Halton unit owners could not have discovered the cause of deficiencies without engineering assistance such as that provided by SPG.

[12] The same objections were made by Del Ridge and Burlington as with the affidavit of Dave Vella, set out above. Likewise, the same response was made by Halton.

Affidavit of John Kousik:

[13] John Kousik is a representative of Halton. He has resided in a Halton unit since August 2009 and was, for many years (after January 2012), a director of the condominium board for Halton. He deposed to problems regarding the underground parking garage and deficiencies concerning the main condominium building. He recited efforts and promises made by Del Ridge to rectify problems. In his affidavit, he makes reference to the various expert reports appended to the Vella and Silano affidavits.

[14] Objections to the Kousik affidavit by Del Ridge and Burlington can be summarized as follows:

a. Expert reports should not be referenced where the deponent was not the author of the reports, nor should Mr. Kousik be permitted to give the equivalent of expert opinion evidence where that evidence was gleaned from the expert reports of others;

b. Mr. Kousik should not be permitted to give evidence about deficiencies discovered where the evidence is based on the opinions of others and where the source of opinion and belief is not given contrary to the provisions of rule 39.01(4) which permits statements of information and belief in an affidavit, provided that the source of the information and the fact of the belief are specified; and

c. Mr. Kousik should not be permitted to give evidence about documents provided by Del Ridge to Halton in May 2009 or as to other matters of hearsay concerning which he had no personal knowledge and where he did not state the source of his belief contrary to the provisions of rule 39.01(4).

[15] In response, Halton submits that the impugned paragraphs are properly admissible with weight to be decided by the motions judge. Alternatively, the issue of what material should go before the judge on the summary judgment motion should be left to that motions judge. As with its response to the objections to the Vella and Silano affidavits, Halton submits that engineering reports referred to by Mr. Kousik were from participant experts rather than litigation experts and therefore properly could be referenced.

Analysis:

[16] The issues for decision on this motion are:

• Should affidavit evidence be subject to the review of the court in advance of the main summary judgment motion?

• If so, does the evidence constitute an expert opinion?

• If there is evidence of an expert opinion, are the deponents participant experts such that no compliance with rule 53.03(2.1) is required?

• Is affidavit evidence based on information and belief properly supported?

Should affidavit evidence be reviewed in advance of the main motion?

[17] Del Ridge relies on rule 25.11 which gives the court discretionary authority to strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading may prejudice or delay the fair trial of the action, is scandalous, frivolous or vexatious, or is an abuse of the process of the court.

[18] Only the first of the three grounds listed in the rule is relevant. Del Ridge submits that the record should be appropriately defined before the hearing so as to focus and perhaps minimize the need for cross-examinations. The outcome of this motion will assist the parties in preparation of the summary judgment motion so that effective facta can be prepared, and ultimately so the court can focus on admissible, relevant evidence.

[19] The position of Del Ridge is supported by the Divisional Court decision in Lockridge v. Ontario (Ministry of the Environment), 2012 ONSC 2316, 316 O.A.C. 1. In that case, at paragraphs 50 through 52, the court accepted that it was in the interest of justice to define the record appropriately in advance of the judicial review hearing based on the exclusion of clearly inadmissible material. In doing so, the court also noted the need to take care not to usurp the role of the trier of fact on the merits, and that in the case of doubt concerning the admissibility of affidavit material, it should not be struck. I note that in that case, the material filed was voluminous and the court was concerned about wasting limited resources and controlling costs for litigants.

[20] In this case, the evidence is not voluminous. However, the nature of a summary judgment motion makes it more akin to an application or judicial review since the outcome of the motion could be determinative of the case. The issue raised by Del Ridge, that is, Halton’s reliance on allegedly inadmissible expert evidence, is significant and the outcome of this motion will undoubtedly determine the nature of any response to be made by Del Ridge. No responding affidavits have been filed by Del Ridge to date. If this court does not resolve the issue of admissibility of the allegedly expert evidence, there is a strong likelihood that the fair trial of this action will be delayed or prejudiced.

[21] The secondary issue is whether there is unsupported evidence of information and belief offered by Mr. Kousik on behalf of Halton. In that regard, rule 20.02(1) provides that an affidavit for use on a motion for summary judgment may be made on information and belief, subject to the potential for an adverse inference being drawn if a party fails to provide evidence of a person having personal knowledge of contested facts. Rule 39.01(4) provides more generically that an affidavit on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

[22] Whether there is unsupported evidence of information and belief and, if so, its admissibility, is properly left to the motions judge. That determination is well within the purview of the motions judge and, unlike the expert evidence issue, it does not attract a need on the part of Del Ridge to reply. As well, it is Halton that bears the risk of an adverse finding as opposed to the moving party.

[23] As a result, and for the foregoing reasons, I am satisfied that the issue of expert evidence is a proper matter for determination in advance of the summary judgment motion. However, I am not satisfied that this court should make a ruling now about whether any affidavit evidence given on the basis of information and belief without disclosure of the source of the information and the fact of the belief should be struck, deferring that matter to the motions judge.

Does the evidence constitute an expert opinion?

[24] At the hearing of this motion, the parties argued at some considerable length about whether the expert reports appended to the affidavits of Messrs. Vella, Silano and Kousik were prepared by litigation experts or participant experts.

[25] As to the difference between participant and litigation experts, I refer to the summary set out by the Ontario Court of Appeal contained in Imeson v. Maryvale, 2018 ONCA 888 at paras. 60 - 62:

[60] In the civil litigation context, a litigation expert is subject to r. 53.03. This rule requires, among other things, an expert report that sets out the expert’s opinions, as well as an acknowledgment of the expert’s duty. Typically, an expert report provides a “roadmap of the anticipated testimony and specific limits may be placed on certain areas of testimony”: Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584 (Ont. C.A.), at para. 62, leave to appeal refused, (2018) [2017] S.C.C.A. No. 343 (S.C.C.). The expert’s report will provide the framework for discussion about the proper scope of the expert’s testimony.

[61] In contrast, under Westerhof participant experts may give opinion evidence without complying with r. 53.03. Typically, any opinions that are sought to be introduced are found in the clinician’s clinical notes and records, or in reports prepared for the purpose of consultation and treatment.

[62] In Westerhof, this court explained the proper role of a participant witness, at para. 60, as follows:

[A] witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

• the opinion to be given is based on the witness's observation of or participation in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[26] The nature of any construction deficiencies, responsibility for those problems, and the cost of remediation are not the subject of this motion. As such, any comments that bear on those issues contained in the affidavits or attached exhibits are irrelevant to my consideration.

[27] As noted, Halton’s response to the summary judgment motion alleging a limitation defence is that the construction deficiencies were not discoverable until a date within two years of the issuing of the statement of claim.

[28] Section 5 of the Limitations Act, 2002 provides, as to discoverability, as follows:

(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).

[29] It is reasonable to expect that Halton will put its best foot forward on the summary judgment motion in its response to the limitations defence. In fact, that quality of response is legally necessary. Doing so requires evidence about when Halton became aware of the problems, the apparent cause of the problems, the party or parties responsible, and the propriety of a legal action.

[30] The reports filed as exhibits to the three affidavits comment on problems identified at the Halton premises. Regardless of whether the opinions contained in the reports were correct, Halton can be said to have had knowledge of the reports’ contents on receipt. That knowledge may be relevant to the discoverability question. Although in another context the exhibits could be considered expert evidence, I conclude that they are not expert reports for the limited purpose of the summary judgment motion and therefore the provisions of rule 53.03(2.1) do not apply.

[31] Based on my conclusion that the exhibits do not constitute expert evidence, I need not decide whether the authors are litigation or participant experts. Obviously, if the matter proceeds to trial, the issue may well arise again.

[32] I turn now to the John Kousik affidavit. He speaks for Halton as a member of its board of directors, and also deposes to knowledge acquired from his personal experience as a unit owner. On the issue of discoverability, he is certainly entitled to refer to the reports that were received by Halton since the contents of those reports and the timing of receipt may well bear on the criteria set out in subsection 5(1) of the Limitations Act 2002. Once again, to the extent that any of them might be categorized as expert reports on the issue of liability or damages, they are not expert reports in the context of the discoverability issue. His opinion as to the efficacy of the reports is of no consequence to the summary judgment motion.

If there is evidence of an expert opinion, are the deponents participant experts such that no compliance with rule 53.03(2.1) is required?

[33] As I have noted, both Mr. Vella and Mr. Silano provided opinions in their affidavits to the effect that Halton unit owners could not have discovered the cause of deficiencies without engineering assistance such as that set out in the reports. Thus, their evidence was not just about their prior involvement with the Halton premises, deficiencies found, and details of the work identified in the reports. In those comments, they opine directly on a question that the court must answer on the summary judgment motion. Those opinions are being offered based on the deponents’ expertise on a matter directly linked to this aspect of the litigation, namely, the question of discoverability. In that respect, they are clearly litigation experts, having been retained by Halton for that purpose. It is admitted that there was no compliance with rule 53.03(2.1). Since I find those opinions to be the evidence of litigation experts, and noncompliant with the rules, paragraph 8 of the Vella affidavit and paragraphs 10 and 11 of the Silano affidavit are struck.

Is affidavit evidence based on information and belief properly supported?

[34] For the reasons set out above in the discussion of whether I should exercise discretion under rule 25.11, I decline to decide whether any affidavit evidence is based on information and belief and if so whether it is properly supported as required by rule 39.01(4). It is not in the interest of justice to do so and engaging in the inquiry would usurp the role of the motions judge on the summary judgment motion. As a general policy, it is not desirable to decide “motions within motions” when to do so is not critical to the orderly, efficient and proportional process of litigation.

Summary and conclusion:

[35] In summary, there will be in order as follows:

• striking paragraph 8 of the affidavit of Dave Vella, sworn December 3, 2018; and

• striking paragraphs 10 and 11 of the affidavit of Pat Silano, sworn December 7, 2018.

[36] In other respects, the motion is dismissed.

[37] The summary judgment motion was set to occur during the week of April 15, 2019. That date assumed the completion of the timetable established by the order of Justice Skarica dated November 15, 2018, which included the filing of reply affidavits by January 31 and cross-examinations and any examinations of witnesses by February 28, 2019. As counsel observed at the hearing of this motion, the timetable needs revision and a new summary judgment hearing date is required. If there is any disagreement about the establishment of a new timetable, counsel can contact the trial coordinator to arrange for a teleconference with me when that matter can be discussed.

Costs:

[38] I encourage the parties to resolve the issue of costs consensually. In the event that they are not able to do so, I am prepared to receive written submissions according to the following timetable:

• Del Ridge and Burlington are to serve Halton with written costs submissions and bills of costs on or before June 4, 2019.

• Halton is to serve Del Ridge and Burlington with written costs submissions and a bill of costs on or before June 18, 2019.

• Del Ridge and Burlington are to serve Halton with any responding submissions on or before July 2, 2019.

[39] All submissions are to be filed with the court no later than July 5, 2019. If submissions are not received by that date, or any agreed extension, the matter of costs will be deemed settled.

Reid J.

Date: May 21. 2019