COURT FILE NOS.: CV-15-540309, CV-15-543298, CV-15-536536-A1 DATE: 2020 01 22
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended
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
AND RE: WALSH CONSTRUCTION/BONDFIELD PARTNERSHIP, Plaintiff
- and - ZURICH INSURANCE COMPANY LTD, Defendant
AND RE: WALSH CONSTRUCTION/BONDFIELD PARTNERSHIP, WALSH CONSTRUCTION COMPANY CANADA and BONDFIELD CONSTRUCTION COMPANY LIMITED, Defendants
- and - SCHINDLER ELEVATOR CORPORATION and ZURICH INSURANCE COMPANY INC. , Third Parties
BEFORE: Master Todd Robinson
COUNSEL: P.E. Du Vernet, L. Wang and J. McClelland, for Schindler Elevator Corporation and Zurich Insurance Company Ltd. F. Bogach, K. Thavaraj, and P. Conrad, for Walsh Construction Company of Canada, Bondfield Construction Company Limited, Walsh Construction/Bondfield Partnership
HEARD: January 20-21, 2020
REASONS FOR DECISION (Admissibility of Statements in Trial Affidavit Evidence)
[1] Each of Schindler Elevator Corporation (“Schindler”) and Walsh Construction Company Canada, Bondfield Construction Company Limited and Walsh Construction/Bondfield Partnership (collectively, “WBP”) bring pre-trial motions for determinations on the admissibility of portions of the substantial affidavit evidence-in-chief tendered for the trial in these actions.
[2] In accordance with my order in Trial Directions #12, prior to the commencement of trial, the parties exchanged and filed charts outlining their admissibility objections outlining the positions of the parties in lieu of formal motion materials. Case law was also submitted. After addressing preliminary matters at trial and hearing the parties’ opening submissions, the admissibility objections were addressed.
[3] WBP raises 12 objections with the affidavit evidence-in-chief tendered by Schindler, specifically regarding statements in the following affidavits:
(a) affidavit of David Simm sworn November 22, 2019 (the “Simm Affidavit”); (b) affidavit of David Brennan sworn November 22, 2019 (the “Second Brennan Affidavit”); (c) affidavit of Tim Russell sworn November 21, 2019 (the “Russell Affidavit”); (d) affidavit of Tracy Davies sworn November 14, 2019 (the “Davies Affidavit”); and (e) affidavit of Mark Quin sworn November 28, 2019 (the “Quin Affidavit”).
[4] Schindler raises 235 objections [1] with the affidavit evidence-in-chief tendered by WBP. Schindler’s objections are regarding statements in the following affidavits:
(a) affidavit of Daniel Wierec sworn October 7, 2019 (the “First Wierec Affidavit”); (b) affidavit of Daniel Wierec sworn October 7, 2019 (the “Second Wierec Affidavit”); (c) reply affidavit of Daniel Wierec sworn December 3, 2019; (d) amended affidavit of Tyler Kondel sworn November 15, 2019 (the “Kondel Affidavit”); (e) amended affidavit of Erica Carroll sworn September 30, 2019 (the “First Carroll Affidavit”); (f) reply affidavit of Erica Carroll sworn December 3, 2019; (g) affidavit of Joseph Zachariah sworn October 31, 2019 (the “Zachariah Affidavit”); (h) amended affidavit of Tim Meana sworn November 21, 2019 (the “Meana Affidavit”); (i) affidavit of Jason Scott sworn October 9, 2019 (the “Scott Affidavit”); and (j) affidavit of Gary Lemna sworn September 30, 2019 (the “Lemna Affidavit”).
[5] While the majority of evidence-in-chief for this trial has been tendered by affidavit per the prior direction of Justice Koehnen, it remains trial evidence. Trials are distinct from motions or applications, where rules of evidence are often relaxed. For example, Rule 39.01(4) of the Rules of Civil Procedure permits statements of a deponent’s information and belief in affidavits tendered for use on a motion. To similar effect is Rule 39.01(5), which permits statements of a deponent’s information and belief with respect to facts that are not contentious in affidavits tendered for use on an application. However, evidence that may otherwise be admissible in affidavits tendered on a motion or an application is generally only admissible at a trial if that evidence complies with the rules of evidence. It is for that reason that I made the order at paragraph 6 b) in Trial Directions #7. That order expressly provides, “Affidavits of evidence in chief must comply with the rules of trial evidence. Notably, hearsay is not permitted.”
[6] Simply put, if a witness is not permitted by the rules of evidence to make particular statements during viva voce testimony at trial, s/he also cannot make those statements in affidavits tendered in lieu of viva voce evidence-in-chief.
[7] All objections raised by Schindler and WBP relate to admissibility of statements made by a particular witness in her/his affidavit of evidence-in-chief. Most commonly, the challenges are to statements argued to be unqualified opinion evidence, argument, and legal conclusions. There are also challenges to statements argued to be hearsay or speculation, and witness competency to give particular evidence.
[8] Before argument of Schindler’s motion, given the number of Schindler’s objections and the impact on trial time if argument on each item was to proceed, I asked Schindler’s counsel to advise if Schindler was prepared to concede admissibility of any of the paragraphs, subject to subsequent argument as to weight. During viva vice examination, it would similarly be open to counsel for a party to either withhold objection to admissibility of arguably improper evidence and instead argue its weight in closing, or object on the record and then concede admissibility subject to weight. The query was made as a matter of practicality in order to more expeditiously proceed to viva vice trial evidence. It followed from a discussion of the matter with counsel during the pre-trial teleconference on January 9, 2020 and my direction in Trial Directions #13 that the parties consider that option.
[9] Schindler’s counsel initially confirmed that rulings were sought on all of the objections, but he ultimately confirmed that Schindler would be withdrawing certain objections as to admissibility without prejudice to subsequent argument on what weight should be given to the evidence. Schindler’s motion accordingly proceeded on that basis.
[10] After argument of WBP’s motion and initial argument on Schindler’s motion, the latter adjourned to continue on the second day of trial. Counsel for the parties worked diligently overnight and throughout the morning and early afternoon to reach resolutions regarding Schindler’s objections. Schindler and WBP were ultimately able to reach resolution of all but a few of those objections. The resolutions reached are included in my orders below. Counsel for the parties are to be commended on their hard work to resolve most objections in a practical manner so that the substantive trial could proceed.
[11] I have now had an opportunity to consider the arguments made by the parties regarding the unresolved objections. The numerical references in my determinations and orders below are drawn from the charts filed by the parties.
[12] WBP has filed a detailed book of authorities. During oral submissions, both parties relied on the decision in Lockridge v Ontario (Director, Ministry of the Environment), 2012 ONSC 2316 regarding relevant principles of evidence, although the decision was acknowledged by both sides to have been made in the context of an application. In assessing the objections raised by each of Schindler and WBP, I have considered the cases submitted and, in particular, following legal principles:
(a) The truth-seeking function of the trial creates a starting premise that all relevant evidence is admissible: R v Grant, 2015 SCC 9 at para. 18. To satisfy the standard of relevance, evidence must have “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence”: R v White, 2011 SCC 13 at para. 36. (b) Admissibility is a legal concept standing between relevance and materiality on the one hand and receivability, as well as weight or proof, on the other. Weight of evidence is assessed after admissibility. It deals with the sufficiency of admitted evidence to prove a proposition in support of which that evidence is offered. Assessment of weight depends mainly on common sense, logic and experience: R v Palma, [2000] OJ No 5874 (SCJ) at paras. 25-31. (c) Opinion evidence may only be tendered through the evidence of a properly qualified expert. Unqualified expert opinion is impermissible and should be struck: Lockridge, supra at para. 94. However, not all expressions of opinion are inadmissible on the part of lay witnesses, notably where they represent a conclusion that people with ordinary experience are able to make: Lockridge, supra at paras. 105-106. Non-expert opinion on matters requiring no special knowledge, where it is virtually impossible to separate the witness’ inference from the facts on which the inference is based, may be admissible as a compendious way of ascertaining the result of the witness’ observations: R v Graat, [1982] 2 SCR 819 at para. 15. (d) An out‑of‑court statement is hearsay when (i) it is adduced to prove the truth of its contents and (ii) there is no opportunity for a contemporaneous cross‑examination of the declarant. Only when the out‑of-court statement is being tendered for its truth will it constitute hearsay. Consideration of whether the statement is tendered for its truth must be made in the context of the issues in the case, so that the court may better assess the potential impact of introducing the evidence in its hearsay form: R v Khelawon, 2006 SCC 57 at paras. 56-57. (e) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place, but may be challenged to determine whether the evidence is supported by indicia of necessity and reliability. If not, then in “rare cases” such hearsay evidence may still be excluded: R v Khelawon, supra at paras. 42 and 60. (f) If hearsay evidence does not fall under an existing common law hearsay exception, it may still be admitted under the principled approach to hearsay, which requires that indicia of both reliability and necessity be established: R v Khelawon, supra at para. 42. (g) Reasonably contemporaneous records made in the usual and ordinary course of business are generally admissible as evidence of the act, transaction, occurrence or event that is recorded. However, this exemption only applies where the party tendering the writing or record has given at least 7 days’ notice of the party’s intention to rely on the exemption: Evidence Act, RSO 1990, c. E.23 at section 35. (h) The rationale for excluding contentious hearsay evidence in affidavits on applications is that it is essential to the adversarial process that evidence submitted by affiants be under oath or affirmation, and that the affiant is available to be cross-examined in order to test the reliability of the evidence: Lockridge, supra at para. 110. In my view, the same is true for evidence at trial by affidavit. That rationale is relevant in considering the indicia of necessity and reliability when assessing application of the principled exception to the hearsay rule. (i) Speculative interpretation by a lay witness that is likely to be harmless and, properly considered, may be relevant to arguments advanced is best assessed by a trier of fact in light of the determinations made on relevance to particular issues: Lockridge, supra at para. 122. In my view, likely harmless speculation by a lay witness on a relevant matter that does not evidently constitute improper argument need not be formalistically struck. The weight to be given to such evidence will turn on the facts of each case. (j) It is inappropriate for a witness to provide evidence, whether opinion or otherwise, that constitutes argument in support of that party’s position on the issues that are to be decided by the court: Lockridge, supra at para. 123.
[13] In response to a number of Schindler’s objections, WBP has proposed amendments to its affidavit evidence to address the concerns. I agree with Schindler that no authority or procedure has been placed before the court by which sworn evidence may be amended by court order. In my view, it would be improper for the court to order amendment of trial affidavit evidence. A court cannot change a witness’ evidence. Accordingly, unless an inadmissible portion of impugned evidence is properly struck without impacting the substance of the remaining evidence in the relevant sentence or paragraph, I have struck the entirety of that sentence and/or paragraph. [2] If either of Schindler or WBP feel that additional examination-in-chief is required to address admissible factual evidence included in sentences or paragraphs that have been struck, then leave may be sought for additional examination time when a witness is called.
[14] My determinations on the objections follow.
Determinations on WBP’s objections to Schindler’s evidence
#1: Simm Affidavit, para. 9
[15] Schindler does not dispute WBP’s submission that a prior answer to undertaking given by Schindler confirmed that Mr. Simm had no recollection of the subject meeting on December 22, 2011. His affidavit evidence purports to tender recollections that arise from his review of documents. Rule 31.09(1) of the Rules of Civil Procedure provides a positive obligation on a party to correct answers. Rule 31.09(3) provides that, where a party does not comply with Rule 31.09(1), the information may not be introduced at trial without leave.
[16] Schindler provided an answer that Mr. Simm had no recollections from the meeting. Schindler does not dispute that there was no correction of that answer pursuant to Rule 31.09(1). Leave was not sought before tendering trial evidence of Mr. Simm’s recollections of that meeting. It is, in my view, unfair to allow Schindler to correct an answer in trial evidence without any explanation for why Mr. Simm now has a recollection that he did not have at the time of discoveries, and why the answer was not previously corrected or could not have been corrected earlier under Rule 31.09(1). In the context of satisfying the undertaking, Mr. Simm should reasonably have reviewed contemporaneous notes and records in order to provide his recollection. The records now relied upon as the basis for his recollection are the same records that ought reasonably to have been reviewed when providing an answer to the undertaking. I do not accept Schindler’s position that the evidence is admissible subject to both weight and WBP’s entitlement to seek to impeach Mr. Simm’s recollection.
[17] Schindler is accordingly denied leave to introduce evidence of Mr. Simm’s recollection of the meeting. The paragraph shall accordingly be struck.
#2: Simm Affidavit, para. 15
[18] I agree with WBP that, since Mr. Michelizzi is being called as a witness by Schindler, firsthand factual information regarding his observations is properly tendered by him. However, I am satisfied that the statement, although dealing with observations made by Mr. Michelizzi as they were relayed to Mr. Simm, is tendered as explanation for why design changes were made, not for the truth of the statements made by Mr. Michelizzi. This is not a hearsay use.
#3: Brennan Affidavit, para. 23
[19] In my view, the reasons for which Ms. Kowert copied Black & McDonald on her email is not evidence that Mr. Simm is competent to give. I am satisfied that, in context, the impugned statement is tendered for the truth of its contents. In my view, Mr. Simm’s evidence on Ms. Kowert’s intent is not necessary and there is no basis upon which to find it reliable. The impugned statement is struck.
#4, 5, 6: Brennan Affidavit, paras. 61, 63, and 74
[20] I agree that Mr. Brennan’s comments in these paragraphs offer his commentary on whether WBP’s evidence meets certain requirements of the subject agreement. These are legal conclusions arising from Mr. Brennan’s interpretation of the agreement that will be for the court to make. They are not properly tendered as Mr. Brennan’s evidence. Whether or not WBP has proffered similar legal interpretations in its affidavit evidence does not assist Schindler. That is a basis for objecting to WBP’s evidence. These paragraphs shall be struck.
#7: Russell Affidavit, para. 15
[21] I find the impugned language to be harmless speculation by Mr. Russell, by which he is expressing his views and the outcome of his own observations and recollections as outlined in the preceding sentences. I see no need to strike it.
#8: Russell Affidavit, para. 37
[22] Similar to #2 above, I agree with WBP that, since both Messrs. Simm and Michelizzi are being called as witnesses by Schindler, firsthand factual information regarding their observations is properly tendered by them. Unlike #2 above, though, I am not satisfied that the language used in the final sentence represents any action taken by or under direction of Mr. Russell on the basis of the information received. It is framed as a conclusion derived from the information provided by Messrs. Simm and Michelizzi, and not from Mr. Russell’s own observations. In my view, this is a hearsay use that is not necessary when both Mr. Simm and Mr. Michelizzi are witnesses. The paragraph is accordingly struck.
#9: Russell Affidavit, para. 74
[23] Notwithstanding the implication from the language used in the first sentence, Mr. Russell is not copied on either of the footnoted emails. Mr. Russell does not specifically identify the informant advising him that water was entering the elevator shafts, nor does the paragraph indicate any personal knowledge that would be a basis for his conclusion that water ingress prevented work from proceeding. In my view, Mr. Russell’s reliance on the out-of-court statement of the unidentified Schindler employee is a hearsay use that is neither necessary given that other Schindler trial witnesses were recipients of the footnoted emails nor reliable since the informant is not identified. The paragraph is accordingly struck.
#10: Davies Affidavit, para. 26
[24] I do not agree that the statement is hearsay. It is evidence of being advised of the fact of a meeting and the purpose for the meeting. It does not appear to be tendered for the truth of its contents, but rather the fact that Mr. Simm advised Ms. Davies.
#11: Davies Affidavit, para. 44
[25] As evidenced by Schindler’s position in response to the objection, Ms. Davies statement is improper argument regarding the sufficiency of evidence tendered by Mr. Zachariah. I do not accept Schindler’s argument that it cannot respond to Mr. Zachariah’s evidence without the impugned statement. For example, Mr. Zachariah will be subject to cross-examination, and Schindler’s counsel will be entitled to make closing arguments regarding treatment of his evidence. It is open to Schindler to consider and lead evidence or call witnesses that it feels are necessary to respond to Mr. Zachariah’s assertions. This paragraph is accordingly struck.
#12: Quin Affidavit, para. 16
[26] In the impugned paragraph, Mr. Quin is providing a statement of personal observation regarding his experience in dealing with Black & McDonald on this job as consistent with other jobs. While WBP argues that what Black & McDonald did on other jobs is irrelevant, in my view, Mr. Quin’s statement regarding other jobs has some tendency to make the proposition that Black & McDonald “[took] over the space” on this job more likely than that proposition would be in the absence of the comparison to other jobs. I am satisfied the statement is admissible. The accuracy of Mr. Quin’s observations as well as the use and weight of his evidence are properly the subject matter of cross-examination and closing submissions.
Determinations on Schindler’s unresolved objections to WBP’s evidence
#37: First Wierec Affidavit, paras. 198-199
[27] Initial submissions by Schindler’s counsel were made on January 20, 2020 that these impugned paragraphs should be struck as improper opinion and conclusion, since there are no statements of evidence regarding what was personally observed by Mr. Wierec or with whom Mr. Wierec may have spoken. In preparing these reasons, and on close review of the items withdrawn and resolved on consent, there appears to be no disposition agreed for this item. I therefore assume that it was overlooked by the parties during their resolution discussions on January 21, 2020.
[28] Although WBP did not have an opportunity to provide responding oral submissions to Schindler’s position, WBP did have an opportunity to make written responding submissions in Schindler’s chart. As a matter of expediency, I have assessed the objection and reached a determination having regard to WBP’s written submissions, namely that the paragraphs contain Mr. Wierec’s recollection of events with respect to the subject elevator construction and routing of power and communication cables. WBP further proposed that portions of para. 198 be struck on consent.
[29] I accept Schindler’s position that Mr. Wierec’s statement at paragraph 198 regarding the training and experience of Schindler’s workers lacks foundation and is not a conclusion that people with ordinary experience would reasonable be able to make. It accordingly constitutes improper opinion. Similarly, Mr. Wierec’s statement in the last sentence of paragraph 199 lacks foundation, is not a reasonable conclusion to a person with ordinary experience, and thereby also constitutes improper opinion. The balance of that paragraph, though, is not improper. Paragraph 198 and the last sentence in paragraph 199 shall accordingly be struck.
#92: First Wierec Affidavit, paras. 390-398
[30] Although a larger range of paragraphs was initially challenged in this item, only paras. 390-398 remain unresolved and disputed. Schindler’s objection is that these paragraphs simply repeat the allegations from WBP’s Scott Schedule without properly advancing them as evidence. Schindler also objects to Mr. Wierec’s reliance on the analysis and damages allocation by WBP’s delay expert as Mr. Wierec’s own evidence on damages. Schindler argues that Mr. Wierec is not competent to give such evidence and that Schindler cannot cross-examine Mr. Wierec on the expert’s analysis. Schindler also challenges the sufficiency of the evidence. Simply put, Schindler argues that the means by which evidence of damages is tendered in these paragraphs constitutes improper opinion, conclusions and argument, and is also not evidence that is within Mr. Wierec’s personal knowledge, information and belief.
[31] WBP argues that this is Mr. Wierec’s evidence as the project manager, which sets out what costs were incurred by WBP and why they were incurred, based on invoices, change orders and cheques. WBP agrees that some portions of sentences could potentially be struck to address Schindler’s concern, but WBP argues that what Schindler is actually trying to do is strike out WBP’s evidence on both damages and why the costs incurred have been attributed to Schindler.
[32] While the drafting of the affidavit could have more clearly set out how and why Mr. Wierec has knowledge of the costs incurred, including the extent of his own involvement, I am satisfied that Mr. Wierec’s affidavit evidence supports that, as the project manager on this P3 project, he does have knowledge of the costs incurred. However, I have concerns regarding Mr. Wierec’s seeming reliance in paras. 392 and 393 on WBP’s expert allocation amidst his evidence of costs incurred. The references to the expert are problematic, since the relationship of the expert analysis to the figures and work descriptions identified in those paragraphs is not entirely clear from the language used in the affidavit. I am accordingly not able to clearly discern if those paragraphs constitute improper lay opinion or argument based on the expert’s opinion.
[33] I have considered the practical impact on trial of striking those of the impugned paragraphs that have some ambiguity, given the number of damages documents tendered that would have to be re-tendered through viva voce examination. In my view, since I am satisfied Mr. Wierec’s affidavit evidence supports direct knowledge of the costs incurred (subject to any contrary viva voce evidence from the supplementary examination-in-chief and cross-examination), I am prepared to admit these paragraphs without prejudice to subsequent argument on the weight to be given to them. There are two exceptions, though. Mr. Wierec advances improper opinion and argument in both para. 394 and the first sentence of para. 397. These are accordingly struck.
#156: First Carroll Affidavit, para. 134
[34] Although paras. 134-135 were initially challenged in this item, only para. 134 remains unresolved and disputed, with para. 135 being struck on consent. Schindler’s objection is to the competency of Ms. Carroll to give evidence about internal emails to Schindler on which she was not copied. In fact, none of the WBP witnesses were copied on the subject email, which is an email chain between various Schindler employees, including Stephen McGinlay (a previously anticipated Schindler witness no longer being called) and Tim Russell (a Schindler witness being called). Schindler argues that an internal Schindler email cannot properly find its way into the evidence of Ms. Carroll, who provides neither evidence of any contemporaneous involvement nor explanation of how she knows about the email. Schindler submits Ms. Carroll only knows about the email from it being in Schindler’s productions in this litigation. Since Mr. Russell was included on the email chain and is being produced, Schindler further argues that he may be cross-examined on the document.
[35] WBP’s position is that a portion of the email chain contains a declaration against interest on which WBP intends to rely, which is an exception to the hearsay rule: Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexus Canada, 2018) at §6.177. WBP further argues that the principled exception to hearsay applies. Since Mr. McGinlay is no longer being called by Schindler as a witness, despite being on Schindler’s witness list, WBP argues that introducing the email through a WBP witness is necessary. The email is also argued to be reliable as a business record of Schindler. WBP has been candid that its concern is ensuring the document is tendered into evidence given the admissions purportedly outlined in it. Schindler argues in reply that a declaration only constitutes a declaration against interest if it is a declaration made to a third party. An internal communication between Schindler representatives therefore cannot be a declaration against interest, since it is effectively a declaration by Schindler to itself. Schindler provides no authority for that position.
[36] It is evident that the email chain is being tendered for the truth of its contents. The Law of Evidence in Canada, supra, at §6.179 discusses the conditions of reliability that must be present for a statement to be admissible under the declaration against interest exception, namely that the declarant must have personal knowledge of the facts stated, must have appreciated the statement was against his or her interest at the time it was made, and was made before any dispute regarding the subject matter of statement had arisen. WBP made no submissions on these factors.
[37] I am not satisfied at this juncture that the declaration against interest exception applies. I am also not satisfied that the principled exception to hearsay applies. In my view, Schindler’s decision not to call Mr. McGinlay does not itself make the introduction of hearsay evidence necessary. For example, WBP could itself seek to summons Mr. McGinlay and/or Mr. Varona, whose statements are specifically noted in Ms. Carroll’s affidavit. It is also not clear to me that the subject email is a “business record”. Notably, I was not provided with Schindler’s Evidence Act notice to confirm if Schindler claims the subject email as a “business record” and no specific argument was made or authority provided for why an internal email should be considered as such.
[38] I agree with Schindler that the evidence regarding these emails is not evidence that Ms. Carroll is competent to give. The emails and the contents are not within her contemporaneous knowledge, information, or belief. Even if authenticity is admitted (and I was not directed to any admission or deemed admission of authenticity for this document), Ms. Carroll cannot genuinely identify the document as part of laying the necessary foundation to introduce the email into evidence. WBP must determine how to tender the evidence it intends to rely upon, but I do not accept that the email is properly tendered through a WBP witness having no knowledge of it before this litigation. If WBP feels this email may only reasonably be tendered as hearsay evidence, then a voir dire on admissibility may be required at the time and in the circumstances of it being tendered.
[39] The impugned paragraph is accordingly struck, without prejudice to WBP seeking to tender the evidence in another fashion.
#231: Lemna Affidavit (in entirety)
[40] This disputed item is an objection to the admissibility of the entirety of the Lemna Affidavit. So that the parties may begin necessary work on the orders made in respect of the balance of objections, I have reserved my analysis and disposition of this objection to supplementary reasons to follow.
Orders
[41] For the foregoing reasons, I order as follows:
(a) In accordance with my determinations in paragraphs 17, 19, 20, 22, 23, and 25 above, the following paragraphs or portions of paragraphs in Schindler’s affidavit evidence-in-chief are hereby struck: (i) Simm Affidavit: para. 9. (ii) Second Brennan Affidavit: paras. 23 (only the impugned portion at the end of the paragraph immediately following “Black & McDonald (“B&M”)”), 61, 63, and 74. (iii) Russell Affidavit: paras. 37 and 74. (iv) Davies Affidavit: para. 44. (b) In accordance with my determinations in paragraphs 18, 21, 24, and 26 above, WBP’s motion is dismissed in respect of the following paragraphs or portions of paragraphs in Schindler’s affidavit evidence-in-chief, which shall be admitted into evidence without prejudice to subsequent argument as to weight: (i) Simm Affidavit: para. 15. (ii) Russell Affidavit: para. 15 (iii) Davies Affidavit: para. 26. (iv) Quin Affidavit: para. 16. (c) Schindler’s objections to admissibility of evidence contained in the following paragraphs in the First Wierec Affidavit are hereby withdrawn, without prejudice to subsequent argument as to weight: paras. 3-7, 8, 10, 29 (second sentence), 58, 59, 64, 67-69, 72-73, 74, 80, 93-94, 97-98, 102(b), 110, 112, 118-120, 133, 139-142, 148, 155, 166, 172, 202-204, 209-211, 212-213, 214-217, 223, 225, 228, 239, 247, and 250. [3] (d) Schindler’s objections to admissibility of WBP’s evidence listed as #55, 56, 58, 60, 63, 67-72, 74, 76, 78-80, 82, 83, 86-89, 91, 93, 94, 96-103, 105-111, 114-118, 120, 121, 123, 125, 129, 132-135, 137, 138, 140, 141, 144-147, 151, 152, 154, 159, 162-166, 168, 170-173, 176-178, 180, 181, 184-188, 190-194, 196-200, 203, 207-209, 214-219, 225, 232-238, 240, and 241 in Exhibit 1 as marked at the trial are hereby withdrawn, without prejudice to subsequent argument as to weight. (e) Schindler’s objections to admissibility of WBP’s evidence listed as #65, 73, 77, 81, 104, 119, 126, 130, 131, 136, 139, 142, 143, 174, 183, 189, 220-222, and 239 in Exhibit 1 as marked at the trial are hereby partially withdrawn to the extent noted in Exhibit 1, without prejudice to subsequent argument as to weight, and are also withdrawn in respect of the following paragraphs or portion of paragraphs: (i) First Wierec Affidavit: paras. 400-405. (ii) First Carroll Affidavit: para. 83 (the remaining portion after the consent striking ordered below). (iii) Meana Affidavit: paras. 92 and 93 (the remaining portions of both paragraphs after the consent striking ordered below). (f) On consent, the following paragraphs or portions of paragraphs in the First Wierec Affidavit are hereby struck: [4] (i) para. 35 by striking the word “worse”; (ii) para. 36 by striking the words “finally over”; (iii) para. 37 by striking the words “Due to this delay,”; (iv) para. 49(a) by striking the second full paragraph; (v) para. 50 by striking the words “, as these were the elevators that ultimately caused critical path delays to the Project”; (vi) para. 63 by striking the sentence “This is incorrect.”; (vii) para. 71 by striking the second sentence; (viii) para. 75 by striking the second sentence; (ix) para. 83 by striking the second sentence to the semi colon; (x) para. 91 by striking the last sentence; (xi) para. 96 by striking the first sentence; (xii) para. 131 by striking the paragraph in full; (xiii) para. 137-138 by striking both paragraphs in full; (xiv) para. 147 by striking the words “because she did not have the technical background necessary”; (xv) para. 156 by striking the words “as they should have been”; (xvi) para. 175 by striking the paragraph in full; (xvii) para. 177 by striking the paragraph in full; (xviii) paras. 192-193 by striking both paragraphs in full; (xix) para. 205 by striking the paragraph in full; (xx) para. 208 by striking the paragraph in full; (xxi) para. 218 by striking the first sentence; (xxii) para. 221 by striking the first sentence and the words “was inexperienced, as evidenced by the fact that he” in the second sentence; (xxiii) paras. 229-230 by striking both paragraphs in full; (xxiv) para. 231 by striking the paragraph in full; and (xxv) para. 256 by striking the words “(indicating poor workmanship on the part of Schindler)”. (g) On consent, paragraphs or portions of paragraphs in the First Wierec Affidavit, the Second Wierec Affidavit, the Kondel Affidavit, the First Carroll Affidavit, the Zachariah Affidavit, and the Meana Affidavit are hereby struck in accordance with the notations in Exhibit 1 as marked at the trial for #57, 59, 61, 62, 64, 65, 66, 73, 75, 77, 81, 84, 85, 90, 104, 112, 119, 124, 126-128, 130, 131, 136, 139, 142, 143, 149, 153, 158, 160, 161, 167, 169, 174, 179, 182, 183, 189, 195, 201, 202, 204, 206, 210-213, 220-222, and 224. (h) On consent, the following additional paragraphs or portions of paragraphs in WBP’s affidavit evidence-in-chief are hereby struck: (i) First Wierec Affidavit: para. 399 (the second and third sentences). (ii) Second Wierec Affidavit: para. 9. (iii) Kondel Affidavit: para. 24 (struck on agreed condition of leave being granted to tender admissible evidence via viva voce testimony). (iv) First Carroll Affidavit: paras. 83 (only the words “, which resulted in WBP building the temporary platforms for Schindler on May 24, 2012 even though it was not WBP’s obligation to do so” in the first sentence and the full second sentence), 132, 135, and136 (only the words “Although I was not aware of this information at the time, it coincides with my recollection of” and “. The door issues” and “critical path and delayed”). (v) Zachariah Affidavit: para. 47 (only the words “critical path delays caused by”). (vi) Meana Affidavit: paras. 92 (only the word “unjustified”), 93 (only the word “significantly”), and 187 (the words “Schindler’s delays in finishing”). (vii) Scott Affidavit: para. 59 (only the word “because”). (i) In accordance with my determinations in paragraphs 29, 33, and 39 above, the following paragraphs or portions of paragraphs in WBP’s affidavit evidence-in-chief are hereby struck: (i) First Wierec Affidavit: paras. 198, 199 (the last sentence), 394, and 397 (the first sentence). (ii) First Carroll Affidavit: para. 134. (j) In accordance with my determination in paragraph 33 above, Schindler’s motion is dismissed in respect of the following paragraphs or portions of paragraphs in the First Wierec Affidavit, which shall be admitted into evidence without prejudice to subsequent argument as to weight: paras. 390-393, 395, 396, 397 (the second sentence), and 398. (k) It shall be the obligation of the party tendering the evidence that has been struck to amend the court copy of the subject affidavit evidence to reflect the orders made above prior to the briefs being marked as exhibits. Court copy briefs have been provided to counsel for that purpose, and striking shall be reviewed and verified by the other party prior to the affidavits being re-filed at the continuation of trial on January 22, 2020 before commencement of viva voce examinations. (l) In complying with subparagraph (k) above, the Lemna Affidavit shall be removed from the WBP affidavit briefs. If that affidavit is not struck in its entirety, it may be subsequently re-filed following release of my supplementary reasons in accordance with any directions therein. (m) This order is effective without further formality.
MASTER TODD ROBINSON DATE: January 22, 2020
Footnotes:
[1] Schindler’s submitted chart includes objections up to no. 241, but there appears to be no objections with nos. 122 or 226-230. [2] I have closely reviewed the paragraphs argued, but I have not closely reviewed or interfered with those items resolved on consent. For such consent items, though, I have only ordered striking without amendment. [3] These paragraphs correlate to item #1, 2, 3, 4, 10, 11, 12, 13, 14, 15, 17, 20, 21, 22, 23, 24, 25, 27, 28, 30, 31, 32, 33, 38, 41, 42, 43, 46, 47, 48, 51, 52, and 53 in Schindler’s original chart, which are either not included or not sufficiently particularized in Exhibit 1. [4] The paragraphs listed correlate to item #5, 6, 7, 8, 9, 12, 14, 16, 18, 19, 21, 26, 28, 29, 31, 34, 35, 36, 39, 40, 44, 45, 49, 50, and 54 in Schindler’s original chart, which are either not included or not sufficiently particularized in Exhibit 1.