SUPERIOR COURT OF JUSTICE – ONTARIO
RE: David Allan Warren Plaintiff
Re/Max Legend Real Estate Inc., Shannon Unger, Lucenti, Orlando, and Ellies Professional Corporation, and Sandro Lucio Orlando a.k.a. "Sandro Orlando" Defendants
BEFORE: Bloom, J.
COUNSEL: Allan Powell, for the Moving Parties, Re/Max Legend Real Estate Inc. and Shannon Unger
Charles Chang, for the Plaintiff, the Responding Party
HEARD: September 22, 2020
E N D O R S E M E N T
I. INTRODUCTION
1The Moving Parties seek an order for the re-attendance of the Responding Party to answer questions on examination for discovery.
II. PROCEDURAL BACKGROUND AND FACTS
2The Statement of Claim alleges that the Moving Parties as Defendants are liable to the Plaintiff for $ 300,000 in damages arising out of their breach of contract, negligence, and/or breach of fiduciary duty in acting as real estate brokers for the Plaintiff in respect of a purchase of a waterfront property.
3The Moving Parties examined the Plaintiff for discovery on July 29, 2016 and obtained certain undertakings.
III. GOVERNING LEGAL PRINCIPLES
4In his helpful factum the Responding Party sets out the following legal principles which I accept: a further right to examination for discovery will not be granted where there would be no purpose to the examination or it would be onerous or abusive; and a further right to examination will be granted only if the matter on which examination is to be conducted is relevant and to deny that additional information sought would be unfair.
IV. ARGUMENTS OF THE PARTIES
5The Moving Parties argue that they are entitled to an order for re-attendance of the Plaintiff to allow further examination of him for discovery on the issue of damages, including mitigation, and on documentation relative to the governmental land regulation issues which are an aspect of the dispute between the parties.
6The Plaintiff resists the motion as not bona fide, but a delaying tactic for unnecessary relief. He relies, inter alia, on what he contends as the late stage of the action at which the motion has been brought.
V. ANALYSIS
7The Plaintiff does not argue that the motion at bar is precluded explicitly by the Rules of Civil Procedure.
8In my view, further examination on the issue of damages was left open by the Moving Parties at the examination for discovery and was not waived by any representation subsequently made by them. Having regard to the claim for $300,000 which they face, an examination on that issue is proportionate in accordance with Rule 1.04(1.1).
9I am not of the same opinion in respect of examination on the governmental land regulation documentation. I am have not been satisfied by the Moving Parties that the Plaintiff is in a position to provide such relevant evidence on the matter of the actions of governmental authorities regulating land that further examination should take place or unfairness to the Moving Parties would result.
10Accordingly, I order that the Plaintiff attend at his own expense to be examined for discovery on the issue of damages for 2 hours on a date to be arranged by the parties. That examination is to take place expeditiously.
VI. COSTS
11I will receive written costs submission of no more than 3 pages, excluding a bill of costs. The Moving Parties are to serve and file their submissions within 14 days of release of this endorsement by one e-mail to the Responding Party and my assistant, Sara Stafford, at Sara.Stafford@ontario.ca. The Responding Party is to serve and file his submissions within 14 days after service of the submissions of the Moving Parties; they are to be served and filed by one e-mail to the Moving Parties and Ms. Stafford. There is to be no reply.
___________________________
Bloom, J.
DATE: September 24, 2020
COURT FILE NO.: CV-15-1820
DATE: 2020 09 24
SUPERIOR COURT OF JUSTICE – ONTARIO
RE:
David Allan Warren Plaintiff
Re/Max Legend Real Estate Inc., Shannon Unger, Lucenti, Orlando, and Ellies Professional Corporation, and Sandro Lucio Orlando a.k.a. "Sandro Orlando"
Defendants
BEFORE: Bloom, J.
COUNSEL: Allan Powell, for the Moving Parties, Re/Max Legend Real Estate Inc. and Shannon Unger
Charles Chang, for the Plaintiff, the Responding Party
ENDORSEMENT
Bloom, J.
DATE: September 24, 2020