Court File and Parties
COURT FILE NO.: C-1145-17 & C-51-18 DATE: 2019 07 17 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
One Source Fire and Life Safety Inc. et al Plaintiffs – and – Prica Group Construction Management Inc. and Columbia Village Inc. Defendants
Counsel: Edward J Dreyer - Counsel for the One Source and Prowave Emilio Bisceglia – Counsel for Primeline Windows Michael McCluskey - Counsel for the Defendants
HEARD: July 15, 2019
Reasons for Decision
The Honourable Justice James W. Sloan
[1] This consolidated action brings together numerous construction liens which arise from the construction of two student residences in the City of Waterloo.
[2] At issue before the court today is the scope of documentary discovery that the plaintiffs submit they are entitled to. Their request for documentation is set forth at Schedule B of Justice Taylor’s order dated the first day of May 2019.
[3] At first blush, the requests seem extensive, however the cost of the two projects were between $97,000,000 and $98,000,000. The aggregate total of the 5 outstanding construction liens is approximately $8,000,000.
[4] There are counterclaims filed by Prica in the approximate amount of $5,000,000.
[5] The defendants raises the following issues with respect to the claims:
i. delays caused by the lien claimant’s, ii. extras claimed by the lien claimant’s, iii. incomplete work by the lien claimant’s which was finished by other contractors, iv. termination of the contract by the lien claimant’s, v. holdbacks pursuant to the Construction Act, vi. the date of the certificates of substantial completion, and vii. lost profit.
[6] A coloured chart which was marked Exhibit 1, was filed to assist the court in trying to sort out, why the production of certain material was being requested.
[7] The defendants have pleaded that all of the construction liens were not registered in accordance with the Construction Act and are therefore not valid.
[8] In addition they state that the Construction Act dictates that the procedure, as far as possible, should be of a summary character.
[9] With respect to proportionality, the defendants state that there is only approximately $130,000 in dispute in addition to the holdbacks. However this does not take into account a claim for substantial extras and a counterclaim by the defendants for in excess of $5,000,000.
[10] In addition there is no material before the court with respect to what the human or monetary costs would be to produce the documents, many of which are likely maintained electronically.
[11] The defendants in their pleadings have brought into issue all of the documents being requested. They have control of most if not all of the documents and therefore it is difficult for them to submit that the documents under their control should not be produced.
[12] The defendants received certificates of substantial performance in July and August 2017, prior to the fall University term, yet claim for lost profits.
[13] Their claim that the plaintiffs delayed the project, brings into play virtually every aspect of the construction project, including, appropriate financing, weather, other trades and the timely delivery of construction products. This information is in the purview of the defendants.
[14] One Source and Prowave’s contracts were terminated on October 30, 2017, and there is a claim for incomplete work, however occupancy permits had been granted by the City of Waterloo by that time.
[15] On the evidence before me it would not only be unfair for the moving parties to attempt to conduct an examination for discovery without the requested documentation, it would lead to protracted discoveries resulting in significant undertakings, likely further motions and certainly further discoveries.
[16] On the facts of this case, proceeding to discovery without further productions would not assist the parties with respect to the lofty goals of proportionality and in the court’s opinion would result in more, rather than less expenses being incurred.
[17] The defendants shall therefore produce the requested documentation set out at Schedule B of Justice Taylor’s order dated May 1, 2019 subject to the following.
[18] I understand items 82, 83 and 84 are not being requested at this time.
[19] With respect to item 8, the defendant shall initially produce all correspondence dealing with any delay in the defendants obtaining financing in a timely fashion to allow the project to remain on schedule. If there is a dispute over what is produced on this issue, either before or after discoveries the parties may bring the appropriate motion.
[20] If the parties are unable to agree on costs, Mr. Dreyer & Mr. Bisceglia shall forward their brief submissions on costs to me by July 24, 2019. Mr. Johnson shall forward his brief response to me by July 31, 2019. Mr. Dreyer & Mr. Bisceglia shall then forward their reply, if any, to me by August 7, 2019. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca. Cost submissions, excluding bills of costs shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.