Court File and Parties

COURT FILE NO.: CV-12-18476 DATE: 2020-01-13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1352194 ONTARIO INC., LUIGI (LOU) LECCE AND GINA LECCE Plaintiffs – and – THOMAS AND CATHERINE TEDESCO, 1206752 ONTARIO LTD., CORPORATION OF THE TOWN OF LASALLE Defendants

COUNSEL: Raymond G. Colautti, counsel for the Plaintiffs David Robins, counsel for the Defendants, Thomas and Catherine Tedesco David Robins, acting as agent for David S. Thompson, counsel for the Defendant, Corporation of the Town of LaSalle

HEARD: January 7, 2020 at Windsor

THOMAS, RSJ.:

Endorsement

[1] The defendant, Corporation of the Town of LaSalle, (“LaSalle”), brings this motion to dismiss the action, or alternatively, to strike the matter from the March 30, 2020 trial list, or to adjourn the trial. The defendants, Thomas and Catherine Tedesco and 1206752 Ontario Ltd., (“Tedesco”), support LaSalle’s position. The plaintiffs 1352194 Ontario Inc., Luigi (Lou) Lecce, (“L.L.”), and Gina Lecce, (“the plaintiffs”), resist.

The Action

[2] The basis for the action is accurately summarized in paragraphs 2 and 3 of the affidavit of David Stewart Thompson, filed in support of this motion:

2. The Plaintiffs allege that the home which they purchased on October 1, 2010 from the Defendants, Thomas and Catherine Tedesco, had an assortment of structural or cosmetic problems which required repair. The Plaintiffs further allege that the Tedesco Defendants were negligent for not carrying out repairs on the property prior to transferring it to the Plaintiffs. The Plaintiffs also allege that the Tedesco Defendants negligently or fraudulently misrepresented the condition of their home and deliberately concealed the condition of the home from the Plaintiffs.

3. The home which Mr. Lecce purchased is located at 9275 Broderick Road, LaSalle, Ontario. The original building permit for the construction of that house was issued in October 1978. The Plaintiffs’ allegations against the Town of LaSalle allege that the building official of the Town of LaSalle failed to carry out its statutory obligations under the Ontario Building Code and that the house was not constructed in compliance with the Building Code. The Plaintiffs further allege against the Town of LaSalle that they failed to discover Building Code breaches when doing their inspection or failed to make a proper inspection at all.

[3] The trial record was served on December 13, 2017. The pre-trial conference was held before Hebner J. in Windsor on June 3, 2019.

[4] It seems obvious that the pre-trial judge determined that further disclosure was needed from the plaintiffs and she made the following order:

1. Plaintiffs to serve expert report of Steven Tremblay within 30 days, without prejudice of course to right of defendants to challenge.
2. Plaintiffs to provide estimate of sill plate repair within 60 days.
3. Plaintiffs to provide breakdown of repair costs within 60 days.
4. Plaintiffs to provide breakdown of losses incurred by 1352194 Ontario Inc. within 90 days along with backup documentation.
5. Plaintiffs to advise if prepared to abandon claim against 1206752 Ontario Ltd. within 2 weeks.
6. Defendant Tedesco’s to provide any expert report responding to #1 above within 90 days of receipt.
7. Defendants may have further examinations for discovery of the plaintiff L.L., on newly produced, previously undisclosed documents by November 30, 2019.

[5] It is clear that a major portion of the claim relates to the allegation that the home was never properly secured to its foundation and that as a result, the home is shifting and deteriorating with related structural damage. In the claim this is referenced as the “sill plate repair”.

Positions of the Parties

[6] All defendants take the position that the itemized order of the pre-trial judge has not been fulfilled and that undertakings from the May, 2016 examination for discovery of L.L. have not been answered.

[7] The plaintiffs maintain they are trial ready. They suggest any further examinations for discovery of the plaintiffs, on the issue of damages, can be conducted before the trial date. Their counsel advises that all their expert reports have now been delivered but for a supplementary report on the sill plate repair and that they will comply with Rule 53.03(3)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in that regard. Further, they maintain that all undertakings have been answered. They argue that many of the financial records sought (corporate tax returns and financial statements) have never existed and therefore cannot be disclosed. Finally, they suggest the defendants continue to dodge their responsibility by attempting to delay this trial.

Analysis

[8] For the reasons I will set out below, I am striking the action from the March 30, 2020 trial list. I am aware that this home was purchased by the plaintiffs in 2010 and that there is a need to press forward for a resolution by trial or otherwise. I am not in a position to determine a viable schedule at this point but with the present state of the action, I do not see why the matter could not be trial ready by September 2020, particularly if the further examination of the plaintiffs is completed expeditiously. However, part of my order emanating from this motion is that the matter not be restored to the trial list until the court approves a schedule of the remaining steps to be taken.

[9] The plaintiff L.L. is a licenced professional engineer and his affidavit material provides his Professional Biography. He advises that he continues in an active practice and routinely provides analyses for clients regarding civil engineering failures. It is clear from the material filed that he has been actively involved in prosecuting his claim and in providing his position on structural deficiencies and remedies. The extent to which he may be able to provide engineering opinions will be determined by the trial judge.

[10] As captured by the order of the pre-trial judge, the plaintiffs provided a home inspection report of Steven Tremblay in April 2019. At the June 3, 2019 pre-trial, Hebner J. ordered that the plaintiffs serve Tremblay’s expert report within 30 days.

[11] It is clear from the record that the plaintiffs were not themselves satisfied with the Tremblay report and served on June 27, 2019 a report authored by Bruce McClure.

[12] The plaintiff L.L. filed an affidavit in this motion sworn December 9, 2019. In that affidavit, L.L. speaks to the new home inspection report, but in addition, criticizes the plaintiff’s own expert report of Neil Kennedy (Walter Fedy Inc.) served over a year ago.

[13] L.L.’s affidavit sets out the following at paras. 12 and 13:

12. Mr. Kennedy’s conceptual suggestion, while well-intentioned, is at best vague, and suffers from not having been formally vetted through a Final Design Process, nor does it represent the result of a Shop-Fabricated and/or Peer-Reviewed engineering solution.
13. Mr. Kennedy’s conceptual suggestion of the “straps” was duly and further investigated by me. As a licenced professional engineer, formally trained in the Civil discipline, with 31 years of experience investigating the myriad and unexpected ways that structural assemblies have failed (both with and without fatalities), and daily incorporating those lessons back into our design tasks (so as to avoid similar outcomes), I have since determined that Mr. Kennedy’s conceptual suggestion is not a viable (or appropriate) fix for the very serious structural problems posed by the lack of sill plates and their missing anchor bolt systems.

[14] L.L.’s plan of action and further steps are set out in paras. 15, 16 and 20 of his affidavit:

15. Consequently, I determined that the only viable, reliable and acceptable way to address the lack of a sill plates and missing anchor bolts system, was to define a more appropriate scope of work that involves raising the house, installing an extra course of concrete blocks, sill plates and anchor bolts. Since the pre-trial conference, I had in fact prepared a detailed and Code-compliant Scope of Work to define what needs to be done in order to allow reputable, qualified contractors to provide me with a quotation. Now show to me and marked as Exhibit “5” to this my affidavit is a true copy of a Scope of Work I have defined for this purpose.
16. Pursuant to the instructions from the pre-trial conference, I approached a total of five (5) reputable, qualified contractors whose work I was familiar with. Of those five, two of the contractors immediately informed me that their schedules and existing commitments precluded them from even entertaining the idea of reviewing the assignment, let alone making any sort of promises, and advising me in the process, that the summer months were their busiest time of the year, and was therefore the absolute worst time to present them with any sort of unique proposal.
17. I have not been able to persuade any reputable, qualified contractors to provide me with a written price quotation for either version of the proposed repair work.

[15] He suggests as well that LaSalle could have produced their own estimate of the repair work if it had desired to do so.

[16] At the argument of the motion, I received a fresh affidavit from L.L., sworn January 3, 2020. Paragraph 4 states the following:

4. Since swearing that Affidavit, I have finally succeeded in obtaining a quote for the work from Alpine Construction, a reputable restoration contractor. Now shown to me and marked as Exhibit “1” to this my Affidavit is a true copy of that quotation dated January 2, 2020. I sought this quote from Alpine last summer, and provided the scope of the work to them at that time, but due to other commitments, Alpine was unable to assemble its quote until now.

[17] The January 2, 2020 Alpine Construction estimate is brief and suggests repair costs of $300,281.50. This is, of course, the first occasion where the defendants have been provided with the cost of repair of this particular portion of the claim.

[18] The plaintiffs’ claim also seeks damages for income lost by L.L.’s engineering practice (LGL Consulting Engineers) due to the fact that L.L.’s attention was distracted from his professional duties and refocussed on the building repairs to this home, which was as well, to house his office.

[19] In the December 9, 2019 affidavit, L.L. claims lost revenue of $1,163,478.65. The defendants, at discoveries, and then at pre-trial, sought financial records to support the income loss and a breakdown of corporate damages including an apportionment as between the individual defendants.

[20] Consistent with the demands of the Hebner pre-trial order, the defendant LaSalle, forwarded correspondence to plaintiffs’ counsel on August 4, September 23, October 4 and November 15, 2019 seeking a breakdown of damages for 1352194 Ontario Inc., an estimate of the cost for sill plate repair and a breakdown of repair costs.

[21] In the affidavit of January 3, 2020, L.L. swears that he relies only on the banking records of LGL (1352194 Ontario Inc.), to support those income loss damages and that no corporate tax returns have been filed since 2006.

[22] It may be that in the response to their motion, the defendants now have all the reports and records that can be produced by the plaintiffs. It seems, however, that this only crystallized as a result of the motion.

[23] The defendants are entitled to further examine L.L. on all this material as it relates to the damages. They are entitled to obtain an expert’s report and costing of their own now that the Alpine Construction estimate is in hand. Perhaps they could have done this before but they are, in my view, entitled to react to what is now, apparently, the plaintiff’s final position on damages.

[24] All of the above and the motions this may generate require that I vacate the March trial date.

Conclusion

[25] As mentioned above, the action is struck from the March 30, 2020 trial list. It will not be restored to a trial list until the court approves a schedule on the remaining steps. I would urge the defendants to re-examine L.L. expeditiously and for all parties to agree on a schedule that moves this matter forward.

[26] I will receive written submissions on costs from the defendants within 20 days of the release of these reasons; from the plaintiffs within 15 days thereafter, with any reply 5 days after that. All submissions to be no more than 3 typed pages not including attachments.

“Regional Senior Justice B. G. Thomas” Regional Senior Justice B. G. Thomas

Released: January 13, 2020.

COURT FILE NO.: CV-12-18476 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: 1352194 ONTARIO INC., LUIGI (LOU) LECCE AND GINA LECCE Plaintiffs – and – THOMAS AND CATHERINE TEDESCO, 1206752 ONTARIO LTD., CORPORATION OF THE TOWN OF LASALLE Defendants

REASONS FOR JUDGMENT THOMAS, RSJ.

Released: January 13, 2020.