Court File and Parties

Court File No.: CV-15-540309 Date: 2020 01 14

Superior Court of Justice - Ontario

In the Matter of the Construction Lien Act, RSO 1990, c. C.30

Re: SCHINDLER ELEVATOR CORPORATION, Plaintiff - and - WALSH CONSTRUCTION COMPANY OF CANADA, BONDFIELD CONSTRUCTION COMPANY LIMITED, WALSH CONSTRUCTION/BONDFIELD PARTNERSHIP and WOMEN’S COLLEGE HOSPITAL, Defendants

Before: Master Todd Robinson

Counsel: P.E. Du Vernet, L. Wang, and J. McClelland, for the plaintiff G. Ackerley, F. Bogach, and K. Thavaraj, for the defendants, Walsh Construction Company of Canada, Bondfield Construction Company Limited, Walsh Construction/Bondfield Partnership

Date: In chambers

Supplementary Endorsement

[1] On December 18, 2019, I rendered my decision on the motion by Schindler Elevator Corporation (“Schindler”) for production for inspection of fully unredacted minutes of settlement as executed between Yuanda Canada Enterprises Ltd. (“Yuanda”) and Walsh Construction Company of Canada, Bondfield Construction Company Limited and Walsh Construction/Bondfield Partnership (collectively, “WBP”): see Schindler Elevator Corporation v. Walsh Construction Company of Canada, 2019 ONSC 7392. In my decision, I ordered, in part, that WBP produce for inspection a further version of the minutes of settlement that only redacted “the specific settlement amounts and any dates for payment”.

[2] During a pre-trial case teleconference on January 9, 2020, counsel for Schindler took the position that WBP has failed to fully comply with my order by producing a version of the minutes of settlement that contains more redactions than contemplated by the order. Specifically, the version produced redacts the settlement amounts and dates for payment, but also redacts references contained in subparagraphs 1(a)-(c) of the minutes of settlement to items in Exhibit “B”. WBP’s position is essentially that the redactions comply with the intent of my order, since the specific items redacted may permit Schindler to calculate the settlement amounts, which I ordered need not be disclosed.

[3] In order to resolve the dispute prior to trial, I directed that I be provided with a copy of the revised redacted version as produced by WBP to Schindler for review, in order to confirm compliance with my order. I have now had an opportunity to review and consider it.

[4] In my view, the only permissible redactions were clearly set out in my order. While WBP has substantially complied with my order, the impugned redactions do go beyond the terms of my order. Nevertheless, I have considered the position of WBP in order to assess if strict compliance with my order does or would result in any unintended indirect disclosure of the settlement amounts. In assessing the effect of my order, and as ordered below, I have found it necessary to unseal the unredacted version of WBP’s responding motion record, which was sealed pursuant to my order dated December 18, 2019.

[5] I have reviewed the impugned redacted item references in light of the positions of both parties. It is not clear to me that the identification of items from Exhibit “B” will allow Schindler to confirm the individual allocation amounts or the total settlement amount, as suggested by WBP. In my view, the language in paragraph 1 of the minutes of settlement provides no clear or specific correlation between WBP’s allocation of the total settlement amount that Yuanda agreed to pay (which is intended to remain redacted) and the specific amounts claimed by WBP for items as reflected in Exhibit “B”. Absent the redacted allocation amounts, it does not appear possible for Schindler (or any other reader) to confirm if there is, in fact, a correlation between the amount of settlement funds allocated to particular items and the claim amounts for those items as listed in Exhibit “B”, or the extent of any such correlation.

[6] At paragraph 24 of my reasons for decision, I held that, “WBP has redacted other information that, in my view, Schindler is entitled to review and assess in order to properly prepare for trial, and on which the court will require Schindler’s submissions.” I went on to hold, at paragraph 27, that “it is unfair to deny Schindler the opportunity before trial to consider its position on how allocation of Yuanda’s settlement amounts may impact a potential damages award in favour of WBP against Schindler.”

[7] Disclosure of the still-redacted item references was within my specific contemplation when making my decision. In order for Schindler to consider its position on allocation of the settlement funds and any arguments regarding potential double-recovery by WBP, Schindler must reasonably know to what items the compensation received has been allocated. The general categories of “Extra Work Performed on Behalf of Yuanda”, “Extra Work to Mitigate Yuanda Delays” and “Delay Impact Costs” are insufficient. In my view, without knowing the particular items in Exhibit “B” to which compensation has been allocated per subparagraphs 1(a)-(c) of the minutes of settlement, Schindler cannot fairly prepare for submissions regarding WBP’s damages claim and the extent to which WBP may already have been compensated (if at all) for losses and damages that it still claims.

[8] Production of the unredacted minutes of settlement was ordered subject to an express provision of confidentiality and without prejudice to the parties’ positions on the use of the document at trial, including admissibility: see subparagraphs 29(b)-(c) of my reasons for decision. In my view, those protective orders appropriately balance the interests of the parties in ensuring a fair trial process and maintaining the public interest in encouraging settlements.

[9] For the foregoing reasons, I order as follows:

(a) The unredacted copy of WBP’s responding motion record sealed by my order dated December 18, 2019 is ordered unsealed solely for the purposes of my review as outlined above, and shall now again be sealed, subject to further court order at or after trial.

(b) WBP shall immediately produce for inspection a further version of the minutes of settlement between WBP and Yuanda, removing the redactions in subparagraphs 1(a)-(c) with respect to the referenced items of Exhibit “B”, but maintaining redactions of the specific settlement amount and allocation amounts. The terms and conditions in the last sentence in subparagraph 29(b) and in subparagraph 29(c) of my reasons for decision dated December 18, 2019 shall apply to production of such further version.

(c) This order is effective without further formality.

MASTER TODD ROBINSON DATE: January 14, 2020