Urban Mechanical Contracting Ltd. v. Broccolini Construction (Toronto) Inc.

DATE: 2019-12-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: URBAN MECHANICAL CONTRACTING LTD, Plaintiff

AND:

BROCCOLINI CONSTRUCTION (TORONTO) INC., PAUL BROCCOLINI, JOHN BROCCOLINI, JOSEPH BROCCOLINI, ANTHONY BROCCOLINI, and SIMON DE GROOT, Defendants

BEFORE: Sossin J.

COUNSEL: Fernando Souza, Counsel for the Plaintiff

Timothy Morgan, Counsel for the Defendants (apart from Simon de Groot)

HEARD: October 21, 2019

REASONS FOR JUDGMENT

OVERVIEW

[1] This case is about whether an action between two construction companies over disputed performance under a contract may move forward or whether portions of the action are barred by a previous settlement between the parties.

[2] The defendants, Broccolini Construction (Toronto) Inc., Paul Broccolini, John Broccolini, Joseph Broccolini, Anthony Broccolini (collectively, “the Broccolini defendants”) bring this motion under Rules 21 and 25 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 (the “Rules of Civil Procedure”) to strike portions the statement of claim of the plaintiff, Urban Mechanical Contracting Ltd. (“Urban Mechanical”).

[3] This litigation arises from a contract dated September 10, 2013, between Broccolini Construction (Toronto) (“Broccolini”) and Urban Mechanical as a subcontractor on a project to expand and renovate the Erin Mills Town Centre (the “Erin Mills project”).

[4] On July 7, 2016, Urban Mechanical issued a notice of claim for delay against Broccolini, alleging that Urban Mechanical was delayed in performing its work and that Broccolini was responsible for the delay (covering the period between September 30, 2015 and May 31, 2016). Urban Mechanical sought $1,320,553.82, plus HST, on this claim.

[5] Urban Mechanical registered a lien on August 11, 2016 and brought an action against Broccolini to enforce that claim, which was settled.

[6] The minutes of settlement, dated December 13, 2016, provided that the lien was to be discharged, the action to enforce the lien would be dismissed and Broccolini would pay Urban $604,032.91.

[7] The minutes of settlement contained releases of Broccolini and its officers and directors, including the Broccolini defendants, for all causes of actions other than a specified claim for delay (the “delay claim”) and certain payments for work then underway.

[8] On August 25, 2017, Urban Mechanical issued a statement of claim seeking $1,745,150.55 in damages and a range of orders and declaratory remedies against both Broccolini and the Broccolini defendants.

[9] On February 27, 2018, Broccolini and the Broccolini defendants issued their amended statement of defence and counterclaim.

[10] On July 19. 2018, Urban Mechanical delivered an affidavit of documents listing 24,725 documents.

[11] On May 3, 2018, Urban Mechanical delivered its reply and defence to the counterclaim.

[12] On October 18, 2018, counsel for the parties attended Civil Practice Court where the Broccolini defendants sought to schedule a motion for partial summary judgment in the action. The matter was adjourned to a chambers appointment before Justice Patillo, who ordered that the partial summary judgment motion was not to proceed.

[13] On December 10, 2018, the Broccolini defendants served their affidavit of documents listing 262 documents.

ANALYSIS

[14] This motion is brought under Rules 21 and 25 of the Rules of Civil Procedure.

[15] Rules 21 and 25 provide:

RULE 21 Determination of an Issue Before Trial

Where Available

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1).

To Defendant

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

Jurisdiction

(a) the court has no jurisdiction over the subject matter of the action;

Capacity

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Another Proceeding Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

Action Frivolous, Vexatious or Abuse of Process

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (3).

RULES OF PLEADING — APPLICABLE TO ALL PLEADINGS

Material Facts

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. R.R.O. 1990, Reg. 194, r. 25.06 (1).

Pleading Law

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded. R.R.O. 1990, Reg. 194, r. 25.06 (2).

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court. R.R.O. 1990, Reg. 194, r. 25.11.

[16] In R. v. Imperial Tobacco Canada Ltd. 2011 SCC 42(“Imperial Tobacco”), at para, 17, the Supreme Court confirmed that the test under Rule 21.01(1)(b) to strike a pleading is whether the moving party can establish that it is “plain and obvious” that the responding party’s claim or defence cannot succeed. The same “plain and obvious” standard applies where, under Rule 21.01(1)(a), a party seeks to determine a question of law which may dispose of all or part of an action.

[17] For purposes of this analysis, the motions judge must assume all facts alleged by the responding party’s pleadings are true, as long as they are not manifestly incapable of proof.

[18] Generally, no evidence can be accepted on a Rule 21 motion, nor can a party rely on what evidence proffered at some future date might or might not show. As Chief Justice McLachlin emphasized in Imperial Tobacco (at para. 22):

It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.

[19] The following issues need to be decided on this motion:

1. Can the Broccolini defendants bring this motion or is it subject to the order of Justice Patillo arising from the chambers appointment in this matter?

2. Should the minutes portion of the action be struck as an abuse of process?

3. Should the discovery of documents in this action be limited to the facts and occurrences that took place after the performance date of September 30, 2015?

[20] I consider each issue in turn.

1) Can the Broccolini defendants bring this motion or is it subject to the order of Justice Patillo arising from the chambers appointment in this matter?

[21] Following the direction of the Civil Practice Court, on February 4, 2019, the parties attended a chambers appointment with Justice Patillo to determine if the Broccolini defendants’ proposed motion for summary judgment could proceed.

[22] Justice Patillo concluded that the motion could not go forward, and gave the following endorsement explaining his reasons:

Based on the pleadings and the proposed notice of motion for summary judgment, I am not satisfied that the proposed motion, which is for partial summary judgment, should be scheduled. Simply put, it will purportedly narrow the issues but not eliminate them. The main issue is the plaintiff’s delay claim. Both parties have different views as to the scope of that claim. In my view, that question must be resolved in a trial not by way of summary judgment.

Leave to commence a summary judgment motion denied.

Patillo J.

[23] The Broccolini defendants did not seek leave to appeal this decision by Justice Patillo.

[24] Urban Mechanical argues that the motions under Rules 21 and 25 are disguised attempts to advance the partial summary judgment motion which Justice Patillo directed not go forward. Urban Mechanical submits this finding was not appealed and is now res judicata.

[25] Urban Mechanical relies on Ipex Inc. v Lubrizol Advanced Materials Canada, 2015 ONSC 6580, where a party’s second attempt at summary judgment was found to be barred by res judicata and an abuse of process where the issue of a limitations defence sought to be litigated in the second motion had already been addressed in the first. In this case, however, the Broccolini defendants do not bring a second summary judgment motion, to be decided on the evidence in the record, but rather a pleadings motion, to be decided on the assumption that all facts alleged are proven.

[26] The issues to be addressed in a motion to strike a portion of the pleadings under Rules 21 or 25, are distinct from a motion for partial summary judgment under Rule 20. Additionally, a summary judgment motion is decided on the basis of an evidentiary record, while a pleadings motion is not; see Whiteman v. Iamkhong et al., 2013 ONSC 2175, at paras. 40-44.

[27] Specifically, this case may be distinguished from settings where a party seeks to bring a second summary judgment motion after a first, unsuccessful motion; Ipex Inc. v. Lubrizol Advanced Materials Canada, Inc. 2015 ONSC 6580.

[28] I am aware of no rule or precedent precluding a party from bringing a Rule 21 or 25 motion after a motion for summary judgment or partial summary judgment, or as here, where a party had attempted but not been permitted to bring such a motion.

[29] For these reasons, I find no bar to the Broccolini defendants bringing this motion under Rules 21 and 25 to have certain portions of the Urban Mechanical claim struck.

2) Should the minutes portion of the action be struck as an abuse of process?

[30] The Broccolini defendants argue the portions of the claim which address disputes resolved through the minutes of settlement should be struck from the pleadings as an abuse of process.

[31] The threshold for an abuse of process was set out in Toronto (City) v. CUPE, Local 79, 2003 SCC 63 at para. 35, where Arbour J. stated that abuse of process may be established where (1) the proceedings are oppressive or vexatious; and (2) violate the fundamental principles underlying the community’s sense of fair play and decency. Arbour J. explained (at para. 79):

In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of the courts. Whether it serves to disentitle the Crown from proceeding because of undue delays … or whether it prevents a civil party from using the courts for an improper purpose … the focus is less on the interests of the parties and more on the integrity of the judicial decision making as a branch of the administration of justice.

[32] While a motion alleging abuse of process under Rules 21 and 25 is to be determined on the basis of the pleadings alone, this analysis may include the legal effect, if any, of documents incorporated by reference into the pleadings. This issue was considered by S.E. Pepall J.A. in McCreight v. Canada (Attorney General) 2013 ONCA 483, at para. 32:

As noted by Borins J. (as he then was) in Montreal Trust, at para. 4, a statement of claim is deemed to include any documents incorporated by reference into the pleading and that form an integral part of the plaintiff’s claim. Among other things, this enables the court to assess the substantive adequacy of the claim. In contrast, the inclusion of evidence necessary to prove a fact pleaded is impermissible. A motion to strike is unlike a motion for summary judgment, where the aim is to ascertain whether there is a genuine issue requiring a trial. On a motion to strike, a judge simply examines the pleading; as mentioned evidence is neither necessary nor allowed. If the document is incorporated by reference into the pleading and forms an integral part of the factual matrix of the statement of claim, it may properly be considered as forming part of the pleading and a judge may refer to it on a motion to strike.

[33] I find the minutes of settlement meet this threshold as a document incorporated by reference in the pleading (at paras. 8-10 of the Broccolini defendants’ statement of defence and counterclaim, and para. 9 of Urban Mechanical’s reply and statement of defence to the counterclaim), and which forms an integral part of the factual matrix of the pleadings. The minutes of settlement included a release signed by the parties.

[34] The release in the minutes of settlement provides (at para. 10):

Aside from an action to enforce the Delay Claim that Urban may bring against Broccolini and the enforcement of Broccolini’s obligations pursuant to the Minutes, Urban releases Broccolini, and its agents, servants, directors, officers, insurers, sureties, successors, and assigns (collectively, the “Broccolini Group”) from all claims, actions or causes of action, suits, covenants and contracts, which relate to the Project, that it ever had, now has or may in the future have by reason of any cause, matter or thing existing and known up to the present. Urban shall make no claims or take or continue any proceedings against any other entity that might claim contribution, indemnity, or declaratory relief either under the Negligence Act or otherwise from the Broccolini Group.

[35] Under the minutes of settlement, the delay claim which remained unresolved and subject to future proceedings, is described as follows (at para. 9):

Urban submitted to Broccolini a delay claim (the “Delay Claim”) dated July 7, 2016. Broccolini disagrees with the Delay Claim both as to liability and the quantum being claimed. However, the parties will do their best to resolve the Delay Claim. If it is not resolved, then Urban may commence an action against Broccolini to enforce the Delay Claim as it has been presented and without increase, or changes, in its components. Urban may obtain an expert report to support the Delay Claim. Notwithstanding paragraph 11, Broccolini is not releasing any Broccolini claims (defined in paragraph 11) relating to the delay (the “Alleged Urban Delay”) that Broccolini alleges Urban caused to the Project; however, the Broccolini Claims relating to the Alleged Urban Delay will only be raised by way of set-off against the Delay Claim. (Emphasis in original.)

[36] The Broccolini defendants argue that the allegations in the pleadings which extend beyond the original delay claim should be struck as precluded by the release in the minutes of settlement. Broccolini defendants refer to this portion of Urban Mechanical’s claim as “the minutes portion,” which includes the following claims (as set out at para. 20 of the Broccolini defendants’ factum):

a. against individual directors;

b. for a declaration of breach of trust under sections 9 and 13 of the Construction Lien Act, R.S.O. c.C.30;

c. for an accounting of all funds received by the defendants relating to the project;

d. for a declaration that all funds received by the defendants relating to the project were impressed with a trust, pursuant to section 8 of the Construction Lien Act;

e. for interim and mandatory orders to deliver up records of accounts;

f. for a tracing order;

g. for a declaration that the funds found to be trust funds be applied in and towards payment of Urban’s claim, interest, and costs;

h. for a declaration that Urban is a complainant within the meaning of the Ontario Business Corporations Act (the “OBCA”);

i. for oppression under the OBCA

j. damages for losses suffered as a result of various breaches of the OBCA;

k. for a declaration that the defendants were constructive trustees and are liable as beneficiaries;

l. relief under the OBCA, Assignment and Preferences Act, Fraudulent Conveyances Act, and Bulk Sales Act setting aside any transfers, assignments and transactions;

m. damages for breach of trust, conversion and misappropriation of trust funds;

n. damages for unjust enrichment, unlawful interference with economic relations, inducing breach of contract, and improper interference; and

o. for a declaration that any debt or liability of the defendants shall survive bankruptcy pursuant to sections 178(1)(d), (e) and (h) of the Bankruptcy and Insolvency Act.

[37] Urban Mechanical raises three arguments for why this portion of the claim should not be struck as an abuse of process.

[38] First, Urban Mechanical argues that both parties have alleged breaches of the minutes of settlement, so the status of the minutes of settlement itself is an issue for trial which cannot be resolved in the absence of proper evidence.

[39] Second, Urban Mechanical argues that the question of whether the minutes of settlement included a release of the individual directors is a question of fact and law which requires a trial, as the earlier lien action which the minutes of settlement addressed did not include the individual directors.

[40] Third, Urban Mechanical highlights that the delay action, which the minutes of settlement specifically left subject to future proceedings, may cover some or all of the portion of the claim which the Broccolini defendants characterize as excluded.

[41] Urban Mechanical appears to approach this issue as if it were argued on summary judgment, where the threshold to be met is whether there is a genuine issue for trial. Urban Mechanical takes the position that whether portions of its current action lie outside the delay claim referred to in the minutes of settlement is an issue which requires evidence on a trial.

[42] While Urban Mechanical pleads that the Broccolini defendants are in breach of the minutes of settlement (at para. 9 of its reply and defence to the counterclaim), it has taken no steps to pursue remedies for this alleged breach, nor does Urban Mechanical plead that the release it signed under the minutes of settlement is unenforceable. In its factum, Urban Mechanical expressly states that it has “honoured the Minutes” (at para. 16) and justifies this action as consistent with the minutes of settlement.

[43] Subsequently, in its revised factum, Urban Mechanical added to its position by stating that, “both parties claim that the Minutes were breached, so the status of the Minutes is the very issue in the lawsuit that should not be summarily decided in the absence of proper evidence.” (at para. 29)

[44] Nevertheless, this case may be distinguished from Connor v. Scotia Capital Inc., 2018 ONCA 73, where the Court of Appeal stated that a motion judge should not treat a motion for abuse of process as if it were a summary judgment motion and reach findings on facts in dispute, including in that case the issue of whether a settlement agreement was unconscionable.

[45] Consequently, I expressly refrain from making any findings about the minutes of settlement other than that there is no dispute that the minutes of settlement remain in place and govern the scope of this action.

[46] The Broccolini defendants rely on cases where courts have struck proceedings or pleadings as abuses of process where such proceedings were inconsistent with settlement agreements, including Tan-Jen Ltd. v. Di Pede 2017 ONSC 6800, where a contempt motion was struck by Justice Monahan as an abuse of process under Rule 25.11(c) for attempting to reopen underlying litigation which was subject to a settlement agreement; and McIntyre v. Connolly 2008 CarswellOnt 1604, where Justice Himel found pleadings to be an abuse of process for seeking damages over disputes which were settled.

[47] Additionally, in Conway v. Law Society of Upper Canada 2016 ONCA 72, the Ontario Court of Appeal found that the trial judge had correctly struck claims as an abuse of process which were covered by a release signed by the appellant.

[48] In this case, I find no reason to depart from this approach. The release within the minutes of settlement remains in force and limits the scope of the claims open to Urban Mechanical to make against the Broccolini defendants to what was understood as the delay claim at the time the minutes of settlement were agreed upon.

[49] The delay claim permitted for Urban Mechanical to bring in the within action was intended by the parties to be constrained in this way, as set out in paragraph 9 of the minutes of settlement, reproduced above, which provides that if the dispute is not resolved, “Urban may commence an action against Broccolini to enforce the Delay Claim as it has been presented and without increase, or changes, in its components.” (Emphasis added.)

[50] The original delay claim, therefore, demarcates the remedies which remain open to Urban Mechanical to pursue in this action.

[51] The cover note from Urban Mechanical to Broccolini, enclosing the delay claim, dated July 7, 2016, sets out the basis for the delay claim:

Please accept this Claim as formal notification that Urban Mechanical Contracting Ltd. (UMC) was delayed from performing its work as scheduled due to delays in the construction progress of the site, base building and associated construction contract changes from the base building contractual dates.

These delays were unanticipated and beyond Urban Mechanical’s control. As such, please be advised that Urban Mechanical is requesting compensation for, but not limited to, the following impacts from the original base contract(s): time extension; extended head office overhead; extended site office overhead; labour escalation; material escalation; loss of productivity; extended maintenance and other related direct and indirect related costs as outlined in the Claim Report(s) attached for each contract. The claim value is $1,320,553.82.

[52] The delay claim itself states that: “The additional costs is a result of direct and indirect impacts, which delayed construction progress and extended UMC’s contract beyond the original baseline scheduled mechanical finish and substantial completion dates, through no fault of Urban Mechanical.”

[53] The delay claim also sets out specific bases for the added delay, which “included but were not limited to” a series of factual allegations, such as deficiencies in scheduling, the turnover of supervisors, excessive change orders, change directives and work orders, a faulty glass dome, a work stoppage by the scaffolding company, poor snow removal, and the unexpected discovery of shale.

[54] The Broccolini defendants have further purported to limit the scope of this outstanding claim by conceding that none of the delay from the inception of the project, to the performance date of September 30, 2015, are attributable to Urban Mechanical. Therefore, the Broccolini defendants’ position is that only events subsequent to September 30, 2015 form part of the remaining delay claim.

[55] Whether or not the Broccolini defendants concede a portion of the claim does not affect whether that claim is struck under Rules 21 or 25, though it may play a role in the relevance of discovery, as discussed below.

[56] For the reasons set out above, I find that the portions of Urban Mechanical’s claim which extend beyond its original delay claim should be struck, with one exception, discussed below.

[57] Therefore, the paragraphs of the claim which will be struck are those which support relief which goes beyond what was sought in the delay claim, including:

a. for a declaration of breach of trust under sections 9 and 13 of the Construction Lien Act, R.S.O. c.C.30;

b. for an accounting of all funds received by the defendants relating to the project;

c. for a declaration that all funds received by the defendants relating to the project were impressed with a trust, pursuant to section 8 of the Construction Lien Act;

d. for interim and mandatory orders to deliver up records of accounts;

e. for a tracing order;

f. for a declaration that the funds found to be trust funds be applied in and towards payment of Urban’s claim, interest, and costs;

g. for a declaration that Urban is a complainant within the meaning of the Ontario Business Corporations Act (the “OBCA”);

h. for oppression under the OBCA

i. damages for losses suffered as a result of various breaches of the OBCA;

j. for a declaration that the defendants were constructive trustees and are liable as beneficiaries;

k. relief under the OBCA, Assignment and Preferences Act, Fraudulent Conveyances Act, and Bulk Sales Act setting aside any transfers, assignments and transactions;

l. damages for breach of trust, conversion and misappropriation of trust funds;

m. damages for unjust enrichment, unlawful interference with economic relations, inducing breach of contract, and improper interference; and

n. for a declaration that any debt or liability of the defendants shall survive bankruptcy pursuant to sections 178(1)(d), (e) and (h) of the Bankruptcy and Insolvency Act.

[58] The exception is that the claim against the individual Broccolini defendants, which was not part of the original delay claim. The addition of the individual Broccolini defendants may go forward as the release dealing with the Broccolini directors expressly carved out the delay action. Therefore, it was contemplated under the settlement that if Urban Mechanical decided to pursue its delay claim, the individual Broccolini directors would not be released from liability for that claim.

[59] Further, I do not view adding the individual directors of Broccolini to the delay action which Urban Mechanical now seeks to enforce as an “increase” or “change” to the “components” of the claim as proscribed in the minutes of settlement.

[60] To conclude this issue, Urban Mechanical is entitled to bring its delay claim, as carved out of the minutes of settlement with Broccolini, with the addition of the individual directors to the delay claim, but claims beyond that were released in the minutes of settlement and would be an abuse of process to allow to proceed in this action.

3) Should the discovery of documents in this action be limited to the facts and occurrences that took place after the performance date of September 30, 2015?

[61] Having found that only the delay portion of the action may go forward, the question I must address is the scope of documentary discovery in relation to this action.

[62] Rule 30.02(1) of the Rules of Civil Procedure sets out that every document relevant to any matter in issue in an action shall be disclosed.

[63] The Broccolini defendants argue that they should not be compelled to disclose documents covering a period which is not relevant to the delay action, which they characterize as the “moot period,” as they have conceded responsibility for any delay prior to the performance date of September 30, 2015. This period covers the inception of the contract in September, 2013, to the performance date of September 30, 2015. They argue (at para. 59 of their factum):

Broccolini has admitted responsibility for any delays throughout the Moot Period. If there were any delays throughout the Moot Period, there is no need to explore why they happened because Broccolini admits responsibility for those delays. As such, it is plain and obvious that the facts and occurrences, which took place throughout the Moot Period are irrelevant to this litigation and should not be litigated. To put this another way, it would be pointless to force the parties to conduct discovery for the Moot Period. (Footnote omitted)

[64] The Broccolini defendants also rely on Rule 1.04(1) of the Rules of Civil Procedure, which provides that, “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[65] The Broccolini defendants argue providing complete discovery for the whole of the period prior to the date of performance would be onerous and expensive (for example, they state that they would need to produce 62,550 emails to cover the entire period, but only 7,900 to cover the period after the date of performance).

[66] Urban Mechanical argues that delay claims are factually complex and that a delay period cannot be viewed in isolation (citing Ellis-Don Ltd. v. Toronto Parking Authority (1978), 7 C.L.R. 82 (Ont. H.C.) at para. 24). Urban Mechanical states (at para. 39 of its factum), “The attempt to carve our issues and time periods or issues in an abstract and decontextualized way will only lead to a loss of complete and comprehensive understanding of those facts and issues.”

[67] I agree that this risk needs to be borne in mind, but I do not accept that it requires discovery of all of the Broccolini documents in relation to the Erin Mills project.

[68] On the other hand, I find no basis for a bright line to bar documentary discovery before a particulate date. It is not plain and obvious that issues of relevance for the delay after the performance date, for example, may not flow from specific correspondence or identified transactions prior to the performance date. In other words, relevancy is to be determined from the subject matter of the documents, not only by a bright line of a particular date.

[69] In my view, a balance may be struck which achieves fairness, proportionality and efficiency in the discovery process, given the circumscribed nature of the remaining delay action between the parties, and the Broccolini defendants’ acceptance of responsibility for delays up to the date of performance.

[70] The importance of the date of performance is that it may operate as a presumption for relevance. In other words, documents created or conveyed after the performance date of September 30, 2015, presumptively are relevant and will be subject to discovery. Documents created or conveyed prior to this date may be treated as presumptively not relevant, but may be subject to discovery where there is a specific basis for relevancy (e.g. an identified correspondence or specific transaction related to the post-performance date delay).

[71] Therefore, under Rule 21.01(1)(a), I find that the discovery of documents in this action is limited to documents created or conveyed after September 30, 2015, subject to the exception for identified, relevant documents created or conveyed prior to September 30, 2015, as outlined above.

CONCLUSION

[72] For the reasons set out above, I find that the portions of Urban Mechanical’s claim which go beyond the delay claim, as defined in the minutes of settlement between the parties, are struck under Rule 25.11(c).

[73] The Broccolini defendants did not specify the precise paragraphs in Urban Mechanical’s pleading which support the relief sought, that will need to be struck in accordance with these reasons. As a result, if the parties cannot agree on the form of an order, a draft order specifying the paragraphs affected by this decision may be prepared by both parties and submitted to my attention through Judges’ Administration, 361 University Ave, within 30 days of this judgment.

[74] I see no basis to strike these portions of the claim without leave to amend, and would not do so, provided any amendments made by Urban Mechanical remain within the bounds of the delay claim, as set out in the minutes of settlement, and the release contained in that agreement.

[75] With respect to the question of documents, I find pursuant to Rule 21.01(1)(a) that those documents those created or conveyed after the performance date of September 30, 2015, are presumptively subject to discovery unless there is a basis for not disclosing them, while those created or conveyed prior to the performance date of September 30, 2015 are presumptively not subject to discovery, unless there is a basis for producing them.

COSTS

[76] The Broccolini defendants have been largely, though not completely successful on this motion, and are entitled to costs, though at a somewhat lower level than what they would have sought to reflect some of the areas where Urban Mechanical’s positions have been sustained.

[77] If the parties cannot agree on an appropriate costs award, brief submissions (no more than 2 pages), together with a bill of costs, may be provided within 30 days of this judgment.

__________________

Sossin J.

Date: 2019-12-18