Court File and Parties

COURT FILE NO.: CV-18-00000180 DATE: 20201223 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Drew Harrison Farms Inc., Plaintiff AND: John Murphy, Sandra Murphy and John DiGioacchino in their capacity as Trustees of The John H. Murphy Family Trust, and Sean Curran, and Kimberly Curran, and Overbridge Corporation., Defendants AND: Drew Harrison Farms Inc. and Terry Anderson, Defendants to Counterclaim.

BEFORE: Graeme Mew J.

COUNSEL: Donald E. Crabbe, for The John H. Murphy Trust (Moving Party) Michael W. Carlson, for Drew Harrison Farms Inc. and Drew Harrison Haulage Inc. (Responding Parties) Ryan Flewelling, for Sean Curran and Kimberly Curran Jonathan Nehmetallah for Terry Anderson

HEARD: 22 December 2020, at Picton (by videoconference)

Endorsement

[1] The moving party seeks disclosure by the plaintiff and its affiliated corporation, Drew Harrison Haulage Inc. (“Harrison Haulage”) of documents pertaining to the haulage of water to a construction site in Picton.

[2] This request comes in the context of litigation commenced by the plaintiff as owner of a farm property at 2983 County Road 8, Picton against the Murphy Trust, the former owner of both 2983 County Road 8 and 2984 County Road 8, and against the Currans who bought the 2984 property from the Murphy Trust. The plaintiff alleges that the defendants have not met certain obligations, that they assumed, to register an easement and rights of way over the 2984 property in favour of the plaintiff. The relief sought by the plaintiff includes specific performance of the agreement of purchase and sale of the 2983 property and rectification of the title to the properties now owned by the plaintiff and the Currans respectively to give effect to the easement and rights of way claimed by the plaintiff.

[3] One of the issues raised in the statement of defence, crossclaim and counterclaim of the Murphy Trust in relation to the creation of an easement, described in the amended statement of claim as:

A twelve foot (12') wide Easement along the South. West property line of the property located at 2984 County Road 8, from the road to the water's edge, said easement then running North East along the water's edge up to and including the existing shore well on the property at 2984 County Road 8, for accessing the installed well and waterfront, and to install, maintain and bury water lines and electrical service and items related to same...

[4] The amended statement of defence, crossclaim and counterclaim of the Murphy Trust seeks, inter alia, relief by way of rectification of the agreement of purchase and sale of the 2983 property so as to stipulate in the definition of the easterly easement by adding the words “the said easement shall be for the purpose of affording access to lake water supply for irrigation”.

[5] Pending resolution of the easement issue and, in particular, whether the easement is limited to farming and irrigation purposes, the Currans, as the present owners of the 2984 property, agreed that the plaintiff can have access to the lake water for the requested and sole purpose of drawing water from the lake for irrigation purposes.

[6] These proceedings have been assigned to the Court’s “Civil Case Management Pilot – One Judge Model”. In the context of that process, the parties have agreed to a process similar to a summary trial under rule 76.12 with most evidence in chief to be provided by way of witness statement or affidavit and without oral examinations for discovery except with leave of the court. Trial dates have not yet been set.

[7] The moving party takes the position that the plaintiff, while seeking equitable relief in the form of rectification and specific performance, comes to the court with “dirty hands”, in that its assertion that the necessity of obtaining an easement is to provide access to water to the farm property is at best misleading, or at worst untrue. Rather, the moving party asserts that the plaintiff seeks a wider easement to facilitate uses that go beyond providing access to water for irrigation purposes.

[8] John Murphy, one of the individually named trustees of the Murphy Trust, became aware of the agreement between the Curran’s and the plaintiff regarding, as he puts it in an affidavit sworn in support of this motion, “the pumping of water from Lake Ontario and tracking it away from the Easterly easement”.

[9] A letter from the solicitors representing the Currans does indeed make reference to the plaintiff putting a temporary pipe in place and, in the meantime, granting permission for “trucked-in water” for use at the 2983 property, and no other location.

[10] Sean Curran’s sworn affidavit in which he states that Drew Harrison advised him that he intended to withdraw water using a transport truck. Mr. Curran continues that while he did not see Mr. Harrison take away water, he did see evidence of heavy truck traffic (tire marks) in their laneway for “a short while”.

[11] Mr. Murphy’s affidavit goes on to assert the impossibility that any meaningful irrigation of the plaintiff’s farmlands could have taken place through use of a tanker truck and gasoline pump to fill it. He then describes having become aware that Harrison Haulage, which has the same ownership as the plaintiff company, was awarded a substantial contract in relation to a public works project known as the “Picton Heights Reservoir Watermain Project”. He surmises that Harrison Haulage will doubtless have an executed contract that may very well include terms relating to dust abatement, wheel washing, and/or the manner in which concrete was produced for the job site, and whether parties other than Harrison Haulage performed those functions on the project. He questions whether, in relation to the subject properties, the plaintiff or Harrison Haulage was, in fact, the entity taking the water and perhaps transporting it for use on a construction site having nothing to do with the irrigation of the plaintiff’s farm.

[12] Having spun these threads together, the moving party seeks production of documents concerning the haulage of water by, or for the benefit of, Harrison Haulage (the notice of motion in fact initially sought production of “all documents” in the possession of Harrison Haulage and pertaining to its construction contract with Prince Edward County, but was refined as the exchange of materials prior to the arguing of this motion continued).

[13] The moving party argues that based on the evidence of Mr. Curran and Mr. Murphy, it is probable that the plaintiff has made use of the water in direct contravention of the terms of the transaction between it and the Curran’s and, further, that it is probable that the plaintiff misrepresented its intention to lay irrigation pipe or that the tanker use was only temporary. As such, the Murphy Trust asserts that the plaintiff does not come to the Court with clean hands in its pursuit of equitable relief. The production of documents relating to the haulage of water by, or for the benefit of, Harrison Haulage, is argued to be relevant to the availability of equitable relief. The need for such production is said to be particularly important given that oral examinations for discovery have been bypassed in the present proceeding.

[14] The Currans and Terry Anderson (the Currans’ former solicitor) support the relief sought by the Murphy Trust.

[15] In response, the plaintiff relies on an affidavit of Drew Harrison, who deposes that Harrison Haulage did indeed have a contract with the County of Prince Edward to install new potable water main piping in Picton. However, he says, Harrison Haulage does not haul or ship water. In connection with the Picton project, Harrison Haulage contracted with a business called George’s Water Haulage. He continues “George would fill his water trucks at the Picton Bulk Water Filling Station” and that he only ever transports potable water. Mr. Harrison denies that at no time to his knowledge has he, George’s, or anyone else that he knows of or has any affiliation with used any of the Currans’ lands to access water for the Picton project, or any other project outside of simple farm irrigation.

[16] Mr. Harrison also explains how he used a water tank trailer capable of carrying around 3,000 litres and hauled by a farm tractor, to access water from the Currans’ land to irrigate a single acre of farm frontage used by the plaintiff to grow vegetables.

[17] The principal position taken by the plaintiff is that the moving party’s motion is a fishing expedition. The attempt to pull Harrison Haulage into the discovery process is said to be “overbroad and speculative”, particularly in light of the absence of any rational evidence of trespass on, or misuse of the permission granted to access, the Currans’ property. Noting that the Picton project is located nearly 20 kilometres away from the properties, the plaintiff says it would make no sense for it or George’s to source unpotable water from there. Even if it was accepted that there was an air of reality to the moving party’s theory, the availability of discovery to pursue that theory is not unlimited.

Decision

[18] Rule 30, which provides for the discovery of documents, facilitates the obtaining and disclosure of evidence that might enable the parties to establish the truth of the facts they allege. As in any case involving the scope of discovery, a starting point is to look at the pleadings. They define the parameters of the dispute and, hence, the subject matter of discovery.

[19] The plaintiff observes that the allegations contained in the pleadings do not make any reference to improper purpose on the part of the plaintiff in seeking the easement. The moving party responds to that argument by saying that the doctrine of clean hands is a fundamental principle of equity and does not have to be pleaded. Rather, it is integral to the pursuit of equitable remedies that a party seeking them comes to the court with clean hands. As such, the issue of whether a party seeking equitable relief does, in fact, come to the court with clean hands, is relevant and can properly be the subject of discovery even if it has not been expressly pleaded.

[20] I do not consider it necessary to pass judgment on whether the clean hands doctrine, or particulars of an alleged breach of that doctrine, have to be pleaded in order for a party to be able to discover on the issue of an opposing party’s clean hands. That said, having regard to the allegations made and the particular facts and circumstances of this case, the possibility that the water used by Harrison Haulage on the Picton project came from the subject properties is no more than speculation. It is a tenuous claim at best, based on Mr. Murphy’s suspicions and the observation of some unidentified tire marks on a rural property.

[21] The moving party has not, in my view, established an adequate basis to warrant the production sought by it.

[22] The motion is dismissed.

[23] I am presumptively of the view that the plaintiff should have its costs of this motion on a partial indemnity basis, payable by the Murphy Trust, in any event of the cause. I will, however, provide the parties with an opportunity to address me on the quantum of those costs or to persuade me that a different disposition would be appropriate.

Mew J.

Date: 23 December 2020