COURT FILE NO.: CV-16-556541
DATE: 2019 10 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DEPENDABLE MECHANICAL SYSTEMS INC., Plaintiff
- and -
FOUR SEASONS SITE DEVELOPMENT LTD. and METROLINX, Defendants
BEFORE: Master Todd Robinson
COUNSEL: L. O’Connor, for the plaintiff
C. Tan, for the defendant, Four Seasons Site Development Ltd.
HEARD: August 21, 2019
REASONS FOR DECISION
[1] Dependable Mechanical Systems Inc. (“DMS”) moves to compel answers to questions refused and further answers to insufficiently answered undertakings given by the representative of Four Seasons Site Development Ltd. (“Four Seasons”), Rohit Bansal, during his examination for discovery on November 29, 2018. DMS also seeks an order that Four Seasons’ representative reattend examination to answer questions arising from answers to undertakings and any answers ordered on this motion.
[2] This is one of four refusals and undertakings motions that the parties sought to be heard concurrently, two in this proceeding and the other two in the related proceeding in Court File No. CV-16-553441. Both proceedings arise from DMS’ subcontract work for Four Seasons on separate Metrolinx projects. Pursuant to separate judgments of reference, both actions are currently the subject of references before me commenced under the now-former Construction Lien Act, RSO 1990, c. C.30 (the provisions of which remains applicable to these proceedings by operation of Section 87.3 of the Construction Act, RSO 1990, c. C.30, as amended).
[3] This action in CV-16-556541 arises from DMS’ subcontract work for Four Seasons in the construction of a new train maintenance facility known as the Mimico Train Layover, situated across from the Willowbrook Rail Maintenance Facility in Toronto. Four Seasons was the general contractor for the project, pursuant to a prime contract with Metrolinx. The project involved extensive electrical and mechanical work. Four Seasons subcontracted that work to DMS. DMS’ subcontract was ultimately terminated by Four Seasons, the propriety of which is at issue in this litigation. Both parties allege that the other was in breach of the subcontract. A significant issue in the litigation is project delay and responsibility for delays. Four Seasons’ counterclaim in this action also includes damages allegedly suffered by Four Seasons arising from a third Metrolinx project at the Oshawa GO Station for which DMS was also Four Seasons’ electrical and mechanical subcontractor.
[4] Prior to commencement of the hearing, consent was reached in each of the four motions to answer certain of the refusals and undertakings and to withdraw others. I have noted the consent dispositions for the refusals and undertakings in this motion together with my determinations further below.
Preliminary Issue – Striking Paragraphs
[5] As a preliminary issue, before motion submissions commenced, Four Seasons challenged the propriety of certain paragraphs in DMS’ affidavits tendered in support of both this motion and DMS’ motion in CV-16-553441. Four Seasons’ sought to have the impugned paragraphs struck. Four Seasons alerted DMS and the court to its position through its facta in both motions, but did not bring formal motions to strike as a matter of judicial and cost efficiency.
[6] Impugned paragraphs in the supporting affidavit for this motion are set out in paragraph 13 of Four Seasons’ factum, namely paragraphs 12, 19, 22, 25, 34, 39, 43, 46, 50, 54, 57, 60, 63, 66 and 69 of the affidavit of Rajesh Ahuja sworn August 12, 2019. Four Seasons objects to the propriety of these paragraphs on the basis that they each contain argument, speculation or legal conclusions, and seeks an order that they be struck. Four Seasons is particularly concerned with the propriety of legal conclusions made by Mr. Ahuja on what is relevant, which is properly a determination for this court.
[7] DMS concedes that use of conclusory language such as “relevant” and “adequacy” in the drafting done by counsel was not proper, since both relevancy of questions and adequacy of answers are issues to be determined by the court. However, DMS submits the language should be read down to what was intended, such as “relevant” being read as “may be relevant”, rather than striking the paragraphs in their entirety. Four Seasons’ counsel submitted that the issue was raised and should be addressed as a matter of propriety, but conceded that regardless of whether or not the impugned paragraphs are struck, the parties’ arguments on the substantive issues and the disposition of the motion would be unchanged (so long as the court determined relevancy rather than accepting Mr. Ahuja assertions of relevancy). On the basis of that concession, and since I would not have accepted Mr. Ahuja’s assertions of relevancy as determinative in any event, I reserved determination on the propriety of the impugned paragraphs and counsel proceeded with their submissions on the motion.
[8] Before addressing my determinations on the argued undertakings and refusals, I address the impugned paragraphs. At the hearing, I alerted both counsel to the decision in Chopik v. Mitsibushi Paper Mills Ltd., [2002] OJ No 2780, where, at paras. 25 and 26, Justice Shaughnessy summarizes the law applicable to striking paragraphs of an affidavit. Four Seasons also correctly points to case law holding that legal argument, speculation, irrelevant information, and assertions that are argumentative or inserted for colour may be struck: see, for example, Enns v. Goertzen, 2019 ONSC 4233 at para. 68. Those are the principles I have applied in reviewing the impugned paragraphs.
[9] My rulings on each of the impugned paragraphs are as follows:
(a) Paragraph 12: The first sentence is improper argument on relevance. I see nothing objectionable in the second sentence warranting that it be struck and, in my view, that sentence stands independent of the first sentence. Only the first sentence shall be struck.
(b) Paragraph 19: I see nothing objectionable in this paragraph. However, it appears the reference was intended to be to paragraph 20. That paragraph is improper argument on relevance and shall be struck.
(c) Paragraph 22: This paragraph provides a summary of what is purportedly stated in the statement of defence and counterclaim. I see nothing objectionable in this paragraph warranting that it be struck.
(d) Paragraphs 25, 34, 39, 43, 46, 50, 54, 57, 60, 63, 66 and 69: These paragraphs are each improper argument in an affidavit and shall be struck.
[10] Having considered these rulings in context of the arguments made by counsel, I have determined there is no impact on my disposition of this motion from the above-noted paragraphs or portions of paragraphs being struck.
Undertakings
[11] DMS moved on 14 undertakings, of which the parties reached consent on 3 being answered. The sufficiency of the answers given to the remaining 11 undertakings were argued. The numerical references below are to the responding undertakings chart of Four Seasons, which was used by the parties in argument.
[12] Undertaking Nos. 1, 8 and 9: On consent, further answers to these undertakings will be provided by Four Seasons.
[13] Undertaking No. 2: Four Seasons undertook to determine the extent of delay arising from power being brought over from the Willowbrook Rail Maintenance Facility. Four Seasons’ answer is that it has been unable to determine the extent of delay. Although the relevant transcript extract has not been filed, DMS frames the undertaking as a best efforts undertaking in its undertakings chart. Four Seasons did not dispute that characterization. I accordingly accept that Four Seasons was to make best efforts to determine the extent of delay, but no indication of what efforts were made have been provided. In the absence of either the answer or responding evidence indicating the efforts made by Four Seasons to satisfy the undertaking, the court is not able to ascertain if best efforts have been sufficiently made. A further answer outlining the efforts made to answer the undertaking is required. If best efforts have not been made to review records and provide an answer, then Four Seasons shall make best efforts as it undertook to do and provide a further answer.
[14] Undertaking Nos. 3, 4 and 7: These undertakings all relate to advising if any delay claim is being pursued by Four Seasons and, if so, the quantification of such claim with production of back-up documentation. Four Seasons’ answer is that it is in the process of determining if it will pursue a delay claim against DMS. DMS argues that Four Seasons ought to know if a delay claim is being pursued three years after serving its statement of defence and counterclaim. Four Seasons’ response is that it has not yet confirmed if a delay claim will be pursued.
[15] Sufficiency of Four Seasons’ answers to these undertakings is, in my view, a close call. It is not unreasonable for DMS to expect that, by now, Four Seasons should have determined if a delay claim will be pursued. However, I accept Four Seasons’ submission that quantifying a delay claim, if it is pursued, likely requires involvement of an expert. In my view, Four Seasons answer is sufficient for undertaking nos. 3 and 4 for the time being. If Four Seasons does later pursue a delay claim, and obtains consent or leave to amend its statement of defence and counterclaim, DMS will be entitled to the particulars and documents that Four Seasons has undertaken to provide and may also be entitled to further examination.
[16] DMS argues that a deadline for Four Seasons to “fish or cut bait” should be set. There is nothing before the court to suggest that the undertaking given by Four Seasons had any agreed deadline. The relevant transcript extracts are not in the record before me. I accordingly must rely on the undertakings charts of the parties. Those charts do not suggest that any deadline was asked or agreed for Four Seasons to confirm if it will pursue a delay claim. Making the order sought by DMS would imply a condition to the undertaking that is unsupported by any evidence before the court. I accordingly decline to order a deadline for Four Seasons to determine if a delay claim will be pursued. This does not, however, preclude DMS from raising the issue at a future hearing for directions.
[17] For the same reasons, undertaking no. 7 has been sufficiently answered. It deals with confirmation that the Scott Schedule contains all claims. In answer, Four Seasons has confirmed that it is in the process of determining if a delay claim will be pursued. In my view, this is confirmation that all other claims are included in the Scott Schedule.
[18] Undertaking No. 5: Four Seasons undertook to advise what was on the critical path for the project schedule at the end of July 2015. In answer, Four Seasons referred to the critical path as shown on the baseline schedule dated April 1, 2015. The next schedule was not until October 2015. I agree with DMS that this undertaking remains outstanding. The undertaking was to identify critical path items as of July 2015, not prior to or following that date. Critical path on a project can change month-to-month on a project. Scheduled work that was not previously on the critical path may become critical path work as a result of other project delays. The undertaking was specific to critical path work items as of July 2015. That undertaking has not been answered. Four Seasons shall review its records and confirm, to the extent possible, which work items it understood to be on the critical path of the project schedule as of July 2015.
[19] Undertaking No. 6: This undertaking was to advise if there was any correspondence between Four Seasons and one of its completion subcontractors, Bessling Mechanical Inc. (“Bessling”), about utilizing materials already purchased and on site and, if so, to produce it. The answer to undertaking stated that Bessling offered a $12.50/meter credit for using material on site with a quotation dated April 25, 2016 being produced. DMS argues this answer is insufficient, since it does not confirm if there is other correspondence or if the quotation is the only correspondence. Four Seasons’ counsel submits that the quotation is all that there is. That position is not in any evidence before the court. I accordingly agree with DMS that the undertaking has not been satisfied. Four Seasons must confirm whether or not there is any other correspondence and, if so, produce it as it undertook to do.
[20] Undertaking Nos. 10, 11, 12 and 13: These undertakings all relate to confirming the dates of certain excavation work and whether excavation work of the building had already been completed by Four Seasons when it did other excavation work on behalf of DMS. Four Seasons argues these questions are a fishing expedition, and that DMS has failed to raise “a single ground of relevance” for anything other than the answers given. Four Seasons’ answers only confirm that Four Seasons’ claim is for a June 24, 2015 backfill and that Four Seasons only did work for DMS on July 14-15, 2015.
[21] Whether or not the requested undertakings are relevant or constitute a fishing expedition is now moot. Four Seasons gave undertakings to answer the questions asked. Having given the undertakings, Four Seasons cannot now resile from its obligation to answer them because it has decided part of the answer required is irrelevant. The answers provided by Four Seasons are not full answers to the undertakings given. For example, undertaking no. 11 was to advise if Four Seasons had completed excavation of the building when excavation work for DMS was done, but the answer given by Four Seasons is limited to confirming that Four Seasons did excavation work for DMS on July 14-15, 2015. It fails to confirm if building excavation work had already been completed by that time. Full answers to undertaking nos. 10, 11, 12 and 13 shall be given.
[22] Undertaking No. 14: DMS frames this undertaking as providing a breakdown of the quantum being claimed by Four Seasons. Four Seasons submits that the undertaking is incorrectly framed and that the actual undertaking was to provide a breakdown of its claim within a reasonable period prior to trial. DMS argues that the understanding when the undertaking was given was that a breakdown would be given within a reasonable time after the examination, not prior to trial. Four Seasons’ answer to this undertaking is only that the breakdown will be provided prior to trial.
[23] Both counsel read transcript extracts that are not in either party’s motion materials. The relevant transcript extract was subsequently filed on consent for my consideration. It provides as follows:
Q. What is the quantum that you’re claiming in respect of Mimico?
MR. DORSEY: I haven’t broken down the amounts. We’ve put them together at $6 million.
Q. Would you give me a breakdown please?
MR. DORSEY: We’ll give you when we’re in a position. Before trial we’ll give you a breakdown. We’ll provide particulars and give you a breakdown.
MR. SHAFIR: Well, today is discovery time.
MR. DORSEY: Yes, it is.
MR. SHAFIR: And I have no know [sic] what the particulars are that I’m going to meet and whether I have to have an expert.
MR. DORSEY: We’ll provide it to you in a reasonable period of time. Unfortunately, as you are aware, construction lien trials to set down are a long way off. I don’t know when they’re scheduling them now but it’s not imminent.
Q. Subject to the undertakings and the refusals those are my questions for today.
[24] I agree that the undertaking given is as framed by DMS’ counsel in argument, namely providing a breakdown and particulars within a reasonable period of time following the examination. While Four Seasons’ counsel initially undertook to provide the breakdown and particulars prior to trial, the subsequent exchange clarified that DMS’ counsel was not agreeable to that undertaking, following which a revised undertaking was given. In my view, the sole remaining issue is what constitutes “a reasonable period of time” following discoveries.
[25] DMS seeks a breakdown of the $6,000,000 counterclaim advanced against it. DMS’ desire to “discover” the extent and quantification of that counterclaim during the discovery process, and not later, is a reasonable one. I agree with DMS that, over three years since the counterclaim was advanced, Four Seasons should be able to provide a quantification and breakdown of its counterclaim. The examination took place on November 29, 2018. In my view, nine months between the examination and the motion hearing is a sufficiently reasonable time to have complied with the undertaking. Four Seasons shall provide a current breakdown of its counterclaim.
[26] This does not mean that Four Seasons cannot amend its position if the quantum or breakdown of its set-off and counterclaim changes. Four Seasons has ongoing disclosure obligations. Should a change occur, Four Seasons would be obliged to advise DMS and any issues regarding further examination on an amended damages quantification may be raised at a future hearing for directions
Refusals
[27] DMS moved on 14 refusals, which DMS organized into five categories. Those categories were also used by Four Seasons in responding to this motion. I have used the same categories in addressing each of the refusals. The numerical references below are to the responding refusals chart of Four Seasons, which was used by the parties in argument.
Requests for Information
[28] Refusal no. 1 was to advise if request for information (RFI) logs or submittal logs were kept for the project and, if so, to produce them. DMS argues that the number of requests made, the dates of requests and dates of responses are relevant. Four Seasons argues that the request is a fishing expedition, and that RFI logs are not relevant since they do not disclose any substantive information. Four Seasons further submits that DMS has already received copies of redacted RFI logs, with all electrical and mechanical work unredacted, through a freedom of information request. A copy of those redacted RFI logs is included in the responding motion record at Tab A1.
[29] The existence of RFIs for work within DMS’ scope of subcontract work is relevant based on the pleadings: see para. 10(c) of the statement of claim and paras. 9 and 12 of the statement of defence and counterclaim. I do not accept Four Seasons’ position that seeking a fully unredacted copy of the RFI log is a “fishing expedition” or that the logs are irrelevant because there is no substantive information contained in them. The fact of an RFI is itself relevant for discovery purposes. DMS’ counsel rightly points out that delays in one division of work may impact trades working in other divisions. Delay in DMS’ work is an issue in dispute. Having a complete list of RFIs permits some assessment work to be done regarding potential delays or issues in other divisions that may have impacted DMS. The court has no basis to determine if the redacted portions of the RFI log are irrelevant, other than Four Seasons’ position to that effect. As a litigant, DMS is entitled to test that assertion and need not accept Four Seasons’ position. There is no evidence of any prejudice from disclosing a fully unredacted RFI log, and none was argued. I accordingly order that Four Seasons produce an unredacted copy of the RFI log.
Redacted Documents
[30] Refusal nos. 2, 3, 4, 8, 9, 10, 11 and 12 all arise from questions seeking disclosure of pricing, invoicing and payments as between Four Seasons and Metrolinx. In particular:
(a) Refusal nos. 2, 3, 4, 9, 10, and 11 all arise from redactions of financial information made by Four Seasons in various produced documents: payment certificates, site meeting notes, and a document identified as DMS1485. In all cases, Four Seasons has redacted pricing as between Metrolinx and Four Seasons, invoiced amounts, and payment amounts;
(b) Refusal no. 8 was in response to a request that Four Seasons confirm the amount received by Four Seasons from Metrolinx on account of the items in DMS’ schedule of units; and
(c) Refusal no. 12 was given in response to a request for an alternative undertaking for Four Seasons to consent to Metrolinx releasing the payment certificates.
[31] Four Seasons maintains that pricing agreed, amounts invoiced, and amounts paid as between Four Seasons and Metrolinx are irrelevant. Four Seasons’ counsel took the position during discoveries that the pricing and payment information was confidential, but no privilege is claimed or argued. Four Seasons argues that DMS’ damages claim is based on pricing as between DMS and Four Seasons, not pricing as between Four Seasons and Metrolinx, so the latter is thereby irrelevant to DMS’ case against Four Seasons.
[32] DMS argues that payment certificates are critical documents in construction litigation that should be produced, particularly where delay is alleged. DMS cites Master Wiebe’s decision in Camino Construction Inc. v. Matheson Constructors Ltd., 2015 ONSC 3614, where he made the following statement at para. 15:
Delay claims attract a broad range of relevant activity, namely any activity that impacts the critical path of Mattheson’s work in question. To properly decipher the delay issues, the expert witnesses will have to be able review all documents relevant to this issue. Payment certificates, in my experience, are critical documents in this regard. They are contemporaneous records usually produced by a third party professional for the purpose of monitoring the monthly development of the project in all of its aspects, namely before any litigation arises. As such, they tend to have considerable significance in relation to delay issues.
[33] I agree with Four Seasons’ submission that Camino dealt with the significance of progress certificates in assessing project delay. However, in this case, the produced redacted progress certificates show the percentage complete for each line item. The facts of Camino are thereby distinguishable and, in my view, the case does not assist DMS’ argument.
[34] DMS argues that redaction of unit cost, total cost, previous draw, balance to complete, current draw and other information was improper, and that the actual units and amounts certified as complete and payable by Metrolinx are relevant. DMS points to the substantial issue of Four Seasons’ alleged wrongful termination for DMS’ failure to pay its subtrades and then failing to vacate their subsequent liens. DMS’ counsel sought to demonstrate in submissions that the progress draws provided to DMS by Four Seasons show lower completion rates than the progress certificates issued under the prime contract. DMS argues in the litigation that Four Seasons failed to pay DMS amounts received from Metrolinx and properly payable to DMS, which resulted in non-payment to DMS’ subtrades (pleaded at para. 20 of the statement of claim). DMS’s counsel argued that discrepancies between the progress certificates and the progress draw documents support that position.
[35] In response, Four Seasons’ counsel argued and sought to demonstrate that the differences between the progress draws provided to DMS and the progress certificates issued under the prime contract are because the latter includes all subcontractor work while the former includes only DMS’ smaller scope. While that may be the case, it is not in evidence before the court. The court cannot accept evidence given by counsel on a disputed issue during motion submissions.
[36] On this motion, I need not determine whose position on the variance between the progress draws and the progress certificates is correct. This is a discovery motion, not trial. I am satisfied that there is a legitimate dispute over the extent of certification of DMS’ work at the prime contract level as compared to the percentages reflected in progress draws provided to DMS by Four Seasons. In my view, both the extent to which DMS’ work was certified for payment under the prime contract and the amounts paid by Metrolinx are relevant based on the pleadings. DMS specifically pleads that Four Seasons has not paid DMS for work it performed, that DMS was prevented access to certification and payment information, and that Four Seasons has been paid in full by Metrolinx: see paras. 13, 14(b), and 17 of the statement of claim and para. 8 of the defence to counterclaim. Four Seasons pleads that DMS has been paid 90% of all sums certified and paid to Four Seasons by Metrolinx for DMS’ work and that Four Seasons took all reasonable and necessary steps to have payment certificates issued: see paras. 19 and 21 of the statement of defence and counterclaim.
[37] The manner in which redactions have been done make it impossible for the court to assess if the redacted content is relevant or irrelevant. It is unclear how much of a line item is within DMS’ scope of work and how much is not. Four Seasons could have provided the court with responding affidavit evidence or unredacted copies of the progress certificates for the court’s review, but did not. Relevance for the purpose of discovery does not equate to admissibility at trial. In the absence of evidence supporting that the redacted content is clearly irrelevant, which is not before the court, and in the absence of any evidence of or argued prejudice to Four Seasons from providing unredacted versions, I find that the unredacted versions of all progress certificates addressing any scope of work within DMS’ subcontract scope of work are relevant and producible documents for discovery purposes.
[38] Given my determination that Four Seasons’ refusals regarding pricing and payment as between Four Seasons and Metrolinx cannot be sustained on the record before me, it follows that the pricing redactions in the site meeting minutes (Exhibit “I” to the affidavit of Rajesh Ahuja sworn August 12, 2019) are unsupportable. Similarly, although the document identified as DMS1485 does not appear to be in evidence and the relevant transcript extract has not been filed, the responding refusals charts support that redactions in that document are to a “balance to complete” column and, further, that Four Seasons’ basis of refusal to produce an unredacted version is the same pricing and payment position as above. These redactions are also unsupportable. It also follows that refusal no. 8 must be answered, since the basis of that refusal was the same.
[39] I accordingly order that refusal nos. 2, 3, 4, 8, 9, 10, and 11 be answered and unredacted versions of progress certificates addressing any scope of work within DMS’ subcontract scope of work, the site meeting minutes, and DMS1485 be produced for inspection by Four Seasons. Given my determinations on the other refusals, a determination on refusal no. 12 is moot.
Gas Line Excavation
[40] Refusal nos. 5, 6, and 13 all relate to gas line excavation work:
(a) Refusal nos. 5 and 6 are the same, both arising from requests for Four Seasons to confirm the amount charged to Metrolinx for excavation to lay the gas line. Four Seasons submits that the only relevant information is what DMS would have charged to Four Seasons and what Four Seasons actually paid to another subcontractor to complete the work. What was ultimately charged to Metrolinx under the prime contract is argued to be irrelevant.
(b) Refusal no. 13 was given in response to a request that Four Seasons advise whether equipment used for excavation was owned by Four Seasons or rented. Four Seasons’ position is that the information is not relevant, and that the underlying rationale for the question was the timing of when excavation work was done. Four Seasons confirmed in separate answers to undertakings that the work was performed July 14-15, 2015.
[41] Four Seasons’ costs incurred for rectification and completion work are relevant based on the pleadings: see para. 48 of the statement of defence and counterclaim and paras. 14-17 of the defence to counterclaim. DMS argues that 264 meters of gas piping work was completed by DMS as an extra, as set out in DMS’ Scott Schedule in this action. In defence of DMS’ claim, Four Seasons claims it did certain excavation and backfill work itself, and that another subcontractor had to complete DMS’ work. Four Seasons argues that only the actual cost incurred by Four Seasons for the work is relevant, since damages will be based on what Four Seasons paid in excess of what DMS would have been paid for the work.
[42] In my view, the amount actually invoiced to and paid by Metrolinx for the work is relevant. If Four Seasons has recovered some or all of its own additional costs for the work from Metrolinx, by approved extra or otherwise, then Four Seasons’ damages claim may amount to a claim for double recovery. Also, whether equipment used by Four Seasons in completing excavation work was owned or rented is also relevant based on the same pleading. I agree with DMS that the intended rationale behind a question is immaterial, but rather it is the relevance of the question actually posed that the court must consider. DMS is entitled to test the damages quantification and that information is relevant to doing so. Refusal nos. 5, 6 and 13 shall all be answered.
Amounts Invoiced by DMS
[43] Refusal no. 7 was given in response to a request for Four Seasons to provide the dates and amounts of DMS’ invoices to Four Seasons. Four Seasons refused on the basis that this information is already within the possession of DMS, since DMS knows what it invoiced to Four Seasons and when those invoices were rendered. Four Seasons further submits that it has also already confirmed the amounts actually paid by Four Seasons by answer to a separate undertaking.
[44] The dates and amounts of invoices from DMS to Four Seasons, and payment of those invoices, are relevant based on the pleadings: see, for example, para. 24 of the statement of defence and counterclaim and para. 7 of the defence to counterclaim. This refusal deals only with the dates and amounts of invoices from DMS. DMS argues that Four Seasons’ position on what amounts DMS invoiced is relevant to non-payment. Four Seasons argues that DMS did not ask for Four Seasons’ position, but only asked for confirmation of the dates and amounts of invoices. Four Seasons argues that if DMS wanted Four Seasons’ position, then “the proper way would be for DMS to put DMS’ purported invoice dates and amounts to [Four Seasons] and [Four Seasons] can either agree or disagree.”
[45] In my view, Four Seasons has taken an overly technical position on this item. Substantively, DMS’ question sought to have Four Seasons confirm from its records what invoice dates and amounts were acknowledged as being received. I see no practical distinction between asking Four Seasons to confirm the dates and amounts of invoices it received (the question posed) and putting DMS’ invoice dates and amounts to Four Seasons and seeking confirmation which were received (what Four Seasons argued should have been done). DMS’ question was proper and relevant. Nothing is before the court indicating that Four Seasons has already confirmed this information through documentary or oral discoveries, or through other answers to undertakings. Refusal no. 7 shall accordingly be answered.
Labour Hours
[46] Refusal no. 14 is argued by DMS to have been given in response to a request for Four Seasons to confirm if the summary in a document identified as 16-2 (located at Exhibit “J” to the affidavit of Rajesh Ahuja) was an approximation of labour hours. Four Seasons disputes that there was any refusal, arguing that the exchange during discoveries was a dispute over characterization of the information by DMS’ counsel. Four Seasons further notes that, in any event, information provided in answer to a separate undertaking satisfies the question.
[47] Calculation of labour hours claimed as part of Four Seasons’ set-off and counterclaim is relevant based on the pleadings: see para. 48 of the statement of defence and counterclaim and paras. 14-17 of the defence to counterclaim. However, I am not satisfied that there was any refusal. The relevant transcript extract is not in the record, but is extracted in the moving factum, at para. 55, as follows:
The Rohit Transcript reads: “So can I summarize that this is an approximation of what the hours were?” The response by Mr. Tan reads “We don’t know that. We’ve already said we’ll make the inquiry [as to whether time sheets were submitted] so we’re not going to agree to that characterization.”
[48] Assuming that is an accurate extract from the transcript, I agree with Four Seasons that the response by its counsel is not a refusal. It is disagreement with the characterization put forward by DMS’ counsel. However, if I am wrong in that, in my view, the separate answer to undertaking given by Four Seasons, which confirms that labour hours “are based on 9-10 hours per person on site on the dates mentioned”, is a complete answer. That response clearly advises that the hours are an estimation or approximation, and confirms the specific approximation used.
Order
[49] I accordingly order as follows:
(a) The following paragraphs, or portions thereof, shall be struck from the affidavit of Rajesh Ahuja sworn August 12, 2019: paragraphs 12 (the first sentence only), 20, 25, 34, 39, 43, 46, 50, 54, 57, 60, 63, 66 and 69.
(b) Four Seasons has sufficiently answered undertaking nos. 3, 4, 7.
(c) In accordance with paragraphs 12, 13, 18, 19, 21, and 25 above, Four Season shall provide answers or further answers to undertaking nos. 1, 2, 5, 6, 8, 9, 10, 11, 12, 13, and 14, within 30 days.
(d) Four Seasons need not answer refusal nos. 12 and 14.
(e) In accordance with paragraphs 29, 39, 42 and 45 above, Four Seasons shall answer refusal nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 13, including producing documents ordered for inspection, within 30 days.
(f) All answers ordered in subparagraphs (c) and (e) above are to be given.
(g) Rohit Bansal, as representative of Four Seasons, shall reattend a further examination for discovery on a date no later than December 31, 2019, unless otherwise agreed by the parties, for the purpose of answering questions arising from answers to improperly refused questions for which answers have been ordered above and answers to undertakings.
(h) This order is effective without further formality.
[50] The parties have agreed that costs of this motion will be addressed following disposition of the remaining three refusals and undertakings motions. I accordingly defer the issue of costs until that time.
MASTER TODD ROBINSON
DATE: October 7, 2019