Court File and Parties

COURT FILE NO.: CV-17-132227-00 DATE: 20210108 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christian Charles Donko, Plaintiff (Moving Party) AND: Sleepy Hollow Country Club Ltd., Defendant (Responding Party)

BEFORE: V. Christie

COUNSEL: Tally Vanounou, Counsel for the Plaintiff (Moving Party) Morgan Martin, Counsel, for the Defendant (Responding Party)

HEARD: In Writing

Endorsement

[1] The Plaintiff, Moving Party, seeks an Order, pursuant to Rule 32.01, that the Defendant shall allow the Plaintiff, and his expert of choice, to attend for one site visit, wherein the Plaintiff’s expert will be allowed to inspect, both visually and manually, to test and to test intrusively or destructively, if deemed necessary, one of the three remaining windows that most closely resembles the window that shattered on June 19, 2017, in terms of age, condition and character, namely the window located in either the lunchroom or the heavy equipment storage room. This motion is brought in writing as an opposed motion under Rule 37.12.1(4).

[2] This motion and all related materials were served on the Defendant by regular mail, to the Defendant’s counsel, on October 22, 2020. No responding materials have been provided to this court.

[3] This court notes that counsel for the moving party has followed up with the court office a number of times, including on November 12, 2020, November 18, 2020, November 25, 2020, December 8, 2020, December 9, 2020, and December 21, 2020. While I appreciate that the response to counsel was that the file was in a judge’s chambers, I can indicate that I received this motion for review and consideration on January 7, 2021. Having said that, the COVID-19 pandemic has certainly caused unavoidable backlog.

[4] This action relates to allegations that the Plaintiff, a maintenance worker employed by the Defendant at the material time, was injured on June 19, 2017, when he attempted to slide the window of the turf building / maintenance building changeroom where he worked, as he had forgotten his car keys inside and the building was locked. The Defendant failed to keep any of the shards of glass from the shattered window and has since replaced the window.

[5] The windows are the originally installed windows when the building was constructed in 1976. The Defendant has not been able to produce any document that would identify any details related to the window in question. Specifically, on March 3, 2020, the Defendant answered an undertaking by stating that no records on the windows could be found. The Defendant has also not provided any records concerning the replacement of this window which has been completed since the incident.

[6] On June 1, 2020, the Plaintiff’s expert, a forensic engineer, provided to the Defendant a detailed outline of the testing he intended to perform on the window and a similar window. On June 23, 2020, counsel for the Defendant advised that they would consent to some of the testing but not others, and outlined specifically their points of agreement and disagreement. On June 24, 2020, the Plaintiff and his expert attended at the site for the purpose of inspection and testing. The inspection was not successful, significantly because the windowpane being assessed was newer and it was unknown whether it was similar to the window in question. A request to inspect another window in the turf building was refused.

[7] Since that time, the Defendant has refused to allow a further site visit to inspect one of the other three windows in the turf building that are said to be identical to the window in question.

[8] The central issue in this occupier’s liability action is the Defendant’s liability with respect to the safety and condition of the windows.

[9] Rule 32.01 of the Rules of Civil Procedure states:

32.01 (1) The court may make an order for the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding. R.R.O. 1990, Reg. 194, r. 32.01 (1).

(2) For the purpose of the inspection, the court may,

(a) authorize entry on or into and the taking of temporary possession of any property in the possession of a party or of a person not a party;

(b) permit the measuring, surveying or photographing of the property in question, or of any particular object or operation on the property; and

(c) permit the taking of samples, the making of observations or the conducting of tests or experiments. R.R.O. 1990, Reg. 194, r. 32.01 (2).

(3) The order shall specify the time, place and manner of the inspection and may impose such other terms, including the payment of compensation, as are just. R.R.O. 1990, Reg. 194, r. 32.01 (3).

(4) No order for inspection shall be made without notice to the person in possession of the property unless,

(a) service of notice, or the delay necessary to serve notice, might entail serious consequences to the moving party; or

(b) the court dispenses with service of notice for any other sufficient reason. R.R.O. 1990, Reg. 194, r. 32.01 (4).

[10] Therefore, the Rules allow for such an inspection and testing as is being requested.

[11] In Donnelly v. Fraleigh, [2001] O.J. No. 2731 (S.C.), Justice Stinson was considering a motion by the Defendants for an order for inspection of real property. The court stated:

[8] The basic prerequisite for an order under rule 32.01 is that it must be "necessary for the proper determination of an issue in a proceeding." I agree with the observation of Master Barlow in Healy v. Runnymede Iron and Steel Co., [1942] O.W.N. 17 at 18 in which he commented on the predecessor rule (Rule 372) noting that it is "intended to give the opposite party an opportunity for such an inspection in order to relieve him of being entirely dependent upon what may be sworn to on an examination for discovery."

[9] In a case such as the present one, where the plaintiff remains in possession as owner of the real property that is the subject of the dispute, the defendants should not be forced to rely upon information obtained by examination for discovery or discovery of documents. Quite plainly, only by direct inspection of the property can the defence experts properly reach the conclusions that will be necessary for them to present reliable evidence to the court. I agree with counsel for the defendants that an order for an inspection is necessary in this case in order to "level the playing field" between the plaintiff and the defendants.

[12] Further in Morier v. Michelin North America (Canada) Inc., [2010] O.J. No. 6131 (S.C.J.), the court was considering an appeal of a Master’s decision denying an inspection of property. In allowing the appeal and overturning the Master’s decision, the court stated:

[17] Under Rule 32.01, in my view, inspections of property are ordered to further the interests of justice, ensuring that cases are decided on their merits by permitting the assessment of physical conditions; in this case by an engineer, of the relevant property in order that the understanding that may come of that expert's inspection, which is something beyond the normal understanding of a layman, can be brought to bear on the questions of causation and liability and brought before the court.

[13] In Peel District School Board 19 v. 553518 Ontario Ltd. (2000), 49 C.P.C. (4th) 384 (S.C.J.), the court was considering making such an order where the inspection and testing could result in the destruction of the integrity of the physical evidence. The court stated:

[16] As I have said, Clayton wishes to cut out a section of the cable, temporarily take possession and subject it to examination under an electron microscope. Essentially, this is a test. "Tests" are specifically allowed under rule 32.01(2)(c); and "temporary possession" is permitted by rule 32.01(2)(a). In deciding to exercise my discretion in favour of the defendant, I have taken the following approach:

(a) The proposed test must be one which, in the words of rule 32.01(1), "appears to be necessary for the proper determination of an issue in a proceeding."

(b) "Necessary" has been held to mean "useful" or "probative of an issue": see Bennett et al. v. D.C. Jones Circle V. Ranches Ltd. et al. (1987), 20 C.P.C. (2d) 213 (Alta. Q.B.). Therefore, in my view, to establish "necessity" the moving party must show that there is a reasonable possibility the proposed test will reveal something useful for the trier of fact (that is, something which will assist the trier of fact in determining an issue in the proceeding).

(c) Even if "necessity" is established, the court is not bound to authorize the test, since the opening words of rule 32.01(1) bespeak a discretion in this regard.

(d) Rather than be concerned with whether the proposed test will "destroy" the property, I think the better question is: Will the proposed test impair the integrity of the property such that the party in possession of the property will be prejudiced at trial?

(e) If the party in possession will be so prejudiced, this fact must be balanced with the benefit to be derived from the test by the trier of fact.

[14] In the case at bar, The Defendant has possession of the original, but changed, window, as well as other untouched identical windows. The nature and condition of the window is central to this litigation. A trier of fact will require information about this window to determine the merits of this claim.

[15] The witnesses that attended the Examination for Discovery and the discovery documents do not provide any specifics about the make, model or specification of the window.

[16] There would appear to be no prejudice to the Defendant, other than it may need to replace a window if it is destroyed during testing. If this occurs, compensation can be sought at a later time. Further, any disruption or inconvenience to the business can also be compensated.

[17] The Plaintiff is not opposed to the Defendant having its own expert present during the inspection and testing.

[18] For all of the foregoing reasons, the motion is granted and this Court orders that:

a. Pursuant to Rule 32.01, the Defendant shall allow the Plaintiff and his expert of choice to attend for one site visit, at a time to be mutually determined between the parties, wherein the Plaintiff’s expert will be allowed to inspect both visually and manually, to test and to test intrusively or destructively, if deemed necessary, the window in question and one of the other windows, that most closely resembles the window that shattered on June 19, 2017, in terms of age, condition and character, namely the window located in either the lunchroom or the heavy equipment storage room.

b. The Defendant’s expert, if one exists, may attend at the same time so that both experts can participate in the inspection, testing and destructive testing.

c. If the parties are unable to agree as to costs of this motion, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, and which shall be provided to the court office in hard copy or by email no later than January 13, 2021.

Justice V. Christie Date: January 8, 2021