Superior Court of Justice - Ontario

RE: Durham Condominium Corporation No. 123 v. Watts Water Technologies, Inc. and Watts Water Technologies (Canada) Inc.

BEFORE: Master R. A. Muir

COUNSEL: S. Erentzen for the plaintiff L. Lorimer for the defendants

REASONS FOR DECISION

[1] The defendants bring a preliminary motion to strike various paragraphs of the plaintiff’s supporting affidavit in connection with a motion seeking answers to questions refused at discovery.

[2] The parties agree on the applicable law. The principles relating to such affidavit evidence are summarized in the decision of RSJ Shaughnessy in Chopik v. Mitsubishi Paper Mills Ltd., [2002] OJ No. 2780 (SCJ) at paragraphs 25 and 26. I have applied those principles to the motion to strike.

[3] I see no issue with paragraph 13. It simply quotes various statements found in the attached exhibit which is a public document available on the internet. It does not offer opinion and is not contentious.

[4] In my view, paragraph 16 is improper and shall be struck. It purports to provide the law clerk’s interpretation of the evidence given by the defendants’ witness at discovery. That is a matter of opinion. The court will determine what that evidence is by reviewing the transcript.

[5] I see nothing improper about paragraph 17. It simply attaches a public document about the settlement of a class action involving what appear to be similar issues. The question of who manufactured the coupling in question is a matter in issue in this action based on the pleadings although I appreciate that the defendants deny they are the manufacturers.

[6] Paragraph 19(d) offers the law clerk’s opinion about the contentious issue of the similarity between this action and the class proceeding and as such is improper. It shall be struck. The balance of paragraph 19 shall not be struck. It simply quotes various statements found in the exhibit, which is a public document.

[7] Paragraph 20 is proper. It simply summarizes the attached photographs taken by the law clerk who swore the affidavit.

[8] Paragraphs 25 to 33 are argument and are improper in an affidavit. I will not consider them as evidence on this motion but will consider those paragraphs as forming part of the plaintiff’s argument in support of its motion.

[9] The costs of this motion will be determined in as part of the costs of the plaintiff’s motion.

2019 08 15

Master R. A. Muir