Court File and Parties

COURT FILE NO.: CV-06-313708-000A CV-08-346635-00A1 CV-08-362262-00A1 DATE: 20190116

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL SOLTI and EVA SOLTI, Plaintiff AND: VENMAR VENTILATION INC., Defendant and FASCO INDUSTRIES INC., Third Party

and RE: Kamram Derayeh and Kathrne Herb Derayeh, Plaintiffs AND: Venmar Ventilation Inc., Defendant and FASCO INDUSTRIES INC., Third Party

and RE: SANDRA KERSTEMAN, Plaintiff AND: Fasco Industries Inc., Defendant and FASCO INDUSTRIES INC., Third Party

BEFORE: Darla A. Wilson J.

COUNSEL: Gosia Bawolska, Counsel for the Defendant Venmar Ventilation Inc. Kevin Adams, Counsel for the Third Party Fasco Industries Inc.

HEARD: January 15, 2019

Endorsement

[1] I have been involved in these three actions since January, 2017 when counsel requested a case conference due to an approaching trial date of April 3, 2017 in one of the actions. I was formally appointed case management judge in October 2017.

Background

[2] There are three third party actions before me which have not resolved. In each of them, Venmar Ventilation (“Venmar”) is the Defendant and has issued Third Party Claims against Fasco Industries (“Fasco): Court file CV-06-313708-000A, the Stolti action, with a date of loss of April 28, 2003; Court file CV-08-346635-00A1, the Kesterman action, with a date of loss of May 19, 2006; and Court file CV-08-362262-00A1, the Derayeh action, with a date of loss of September 13, 2006.

[3] These actions arise from fire losses in 2003 and 2006 which are alleged to have started as a result of a ventilator unit manufactured by Venmar. The Plaintiffs in the three actions issued claims, which were settled and paid by Venmar, who then issued Third Party Claims against Fasco, alleging defects in the motor which was designed and manufactured by Fasco. These third party claims were issued between September 2006 and January 2009. Discoveries were completed in the third party actions in 2010.

[4] In 2015, a trial date was selected in the Derayeh matter only for April 3, 2017. At the request of counsel, I vacated that trial date since there was no order for trial together of the 3 matters. Since that time, I have held numerous case conferences in an effort to get these matters on track and ready for trial. It has been a frustrating exercise.

[5] By way of endorsement dated January 27, 2017, I ordered counsel for Venmar to file the trial records in the 3 actions; that was not done. By way of Endorsement of November 20, 2017, I ordered both counsel to deal with the outstanding productions and the solicitor for the Plaintiff to send me an order for trial together of the 3 actions. That order was not complied with.

[6] A further case conference was convened in July 2018. The productions from Venmar remained outstanding and the order for trial together of the actions had not been taken out. I noted at that time that the actions were proceeding at “an appalling pace” and that court orders were seemingly ignored. I made further orders, including that trial records were filed with the court forthwith.

[7] The order for trial together of the 3 actions was sent to me in November, 2018. I signed the order November 20, 2018. Ms. Bawolska confirmed that she received the completed Trial Certification Form from Mr. Adams on October 29, 2018.

[8] I convened a case conference this morning to commence at 9:15. Ms. Bawolska did not join in the call until 9:25. Mr. Adams advised that he has requested the damage documentation relating to the damages claimed by the Plaintiffs in the various actions, including the affidavits of documents of the Plaintiffs, but has not received them. Mr. Adams advised that he was unclear if Venmar would be serving any new expert reports on liability and he needs that information before he can finalize the expert opinions on behalf of Fasco.

[9] Ms. Bawolska advised that she has not been able to locate the affidavits of documents in the Derayeh and Kesterman files. On the matter of expert reports, she indicated that Venmar will not be delivering any additional expert reports; only reply reports in response to expert reports that Fasco delivers. Ms. Bowolska confirmed that she has served the following expert reports on liability: Rochon Engineering Corporation report dated September 16, 2008 on Kesterman; Origin and Cause Incorporated report dated December 13, 2007 in Derayeh claim; Giffin Koerth report dated July 19, 2007 in the Solti action; and Origin and Cause memo to file in the Derayeh action, which appears to be undated.

[10] Although Ms. Bawolska has the trial certification form from the third party, she was not certain whether it had been filed along with the trial records, despite the fact that I ordered the actions set down for trial in 2017. In response to my inquiry, the trial office advised me that the files remain marked “inactive” and the trial certification form has not been received by the court.

[11] These actions are claims by the Defendant Venmar who settled the fire loss claims of the 3 plaintiffs and now seeks payment from the Third Party, who it alleges was negligent. It is incomprehensible to me why more than fifteen years after these fires occurred the Defendant has failed to move these matters on to trial. Instead, the files have languished for no reason, and Court orders have been ignored.

[12] I make the following orders:

1. Mr. Adams is to send to Ms. Bawolska and to me a letter setting out the productions that remain outstanding;
2. Ms. Bawolska is to send the requested documentation to Mr. Adams by January 18 or if it is not available, she is to advise him to this effect;
3. Trial records are to be filed in all 3 actions by January 18, 2019;
4. The Third Party is to deliver its expert reports on liability by April 30, 2019.
5. Counsel are directed to send a copy of this endorsement to their clients.

D.A. Wilson J. Date: January 16, 2019