COURT FILE NO.: CV-19-00619240-0000
DATE: 20210312
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WALSH INFRASTRUCTURE CREDIT VALLEY, LTD. and WCC CONSTRUCTION CANADA, ULC O/A WALSH CANADA
AND.
TRILLIM HEALTH PARTNERS
AND:
TRILLIM HEALTH PARTNERS
AND
THE WALSH GROUP, LTD. and WALSH INFRASTRUCTURE CREDIT VALLEY, LTD.
AND:
BLACK & MACDONALD LIMITED and PLAN GROUP INC.
BEFORE: Mr. Justice Chalmers
COUNSEL: A. Carlson, for Walsh Infrastructure
J. Melia, for Trillium Health Partners
D. Leduc, for Black & MacDonald
M. Round, for the Plan Group Inc.
HEARD: In writing
ENDORSEMENT
[1] By direction of Justice Myers dated March 2, 2020, I was appointed the case management judge in this proceeding.
[2] The parties requested a case conference to establish the Discovery Plan. A case conference was scheduled for March 12, 2021. On March 8, 2021, I was advised that the parties were making progress with respect to the Discovery Plan. On March 11, 2021 I was advised that an agreement had been reached.
[3] On consent I order that the Discovery Plan attached as Schedule A to this endorsement applies to this proceeding. The Discovery Plan sets out the following key dates:
a) Parties shall endeavour to agree on the exact dates for examinations for discovery by March 31, 2021;
b) Exchange of Affidavits of Documents no later than July 31, 2021, subject to any extensions agreed to by the Parties in writing;
c) Examinations for discovery may proceed virtually, and shall be completed by November 30, 2021; and
d) Each witness shall be examined for two days, unless otherwise agreed to in writing by the Parties.
[4] Should the parties require further directions or orders with respect to any steps in this proceeding, the parties may request a case conference before me.
DATE: MARCH 12, 2021
SCHEDULE “A”
Court File No. CV-19-00619240
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WALSH INFRASTRUCTURE CREDIT VALLEY, LTD. and
WCC CONSTRUCTION CANADA, ULC O/A WALSH CANADA
Plaintiffs
and
TRILLIUM HEALTH PARTNERS
Defendant
AND BETWEEN:
TRILLIUM HEALTH PARTNERS
Plaintiff by Counterclaim
and
THE WALSH GROUP, LTD. and
WALSH INFRASTRUCTURE CREDIT VALLEY, LTD.
Defendants by Counterclaim
and
BLACK & MCDONALD LIMITED and PLAN GROUP INC.
Third Parties by Counterclaim
AND BETWEEN:
Court File No. CV-20-649105-0000
BLACK & MCDONALD LIMITED
Plaintiff
and
WCC CONSTRUCTION CANADA, ULC O/A WALSH CANADA,
WALSH INFRASTRUCTURE CREDIT VALLEY, LTD.
and TRILLIUM HEALTH PARTNERS
Defendants
AND BETWEEN:
Court File No. CV-18-00608756-0000
PLAN GROUP INC.
Plaintiff
and
WCC CONSTRUCTION CANADA, ULC O/A WALSH CANADA
Defendant
DISCOVERY PLAN
On June 26, 2020, this Court Ordered that the proceeding bearing court file number CV-19-00619240-0000 (the “Walsh Action”) shall be heard and tried together with the Construction Act proceedings bearing court file number CV-20-649105-0000 (the “Black & McDonald Action”) and court file number CV-18-00608756-0000 (the “Plan Group Action” and, together with the Black & McDonald Action and the Walsh Action, the “Credit Valley Actions”), subject to being ordered otherwise by the case management Judge or trial Judge.
The parties to each of the Credit Valley Actions, Walsh Infrastructure Credit Valley, Ltd., WCC Construction Canada, ULC o/a Walsh Canada, The Walsh Group, Ltd. (collectively, “Walsh”), Trillium Health Partners (“THP”), Black & McDonald Limited (“Black & McDonald”) and Plan Group Inc. (“Plan Group”, and together with Walsh, THP and Black & McDonald, the “Parties”) agree to the following Discovery Plan made pursuant to Rule 29.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended (the “Rules”), subject to subsequent agreement in writing or any order the Court shall make.[^1]
A. SCOPE OF DOCUMENTARY DISCOVERY
The Parties have an obligation to take reasonable steps to preserve all potentially relevant documents.
In accordance with their obligations under the Rules, the Parties have an obligation to preserve and produce all non-privileged documents relevant to any matter in issue in the Credit Valley Actions that is in its possession, control or power.
Individual custodians related to each Party may be in possession of relevant documents. The following custodians have been identified as sources of potentially relevant documents:
(a) For Walsh:
(i) Amandeep Kaur;
(ii) Arya Hosseini;
(iii) Christopher Mathews;
(iv) Colin Campbell;
(v) Craig Lesurf;
(vi) Michael Rostecki;
(vii) Nicholas Laveu;
(viii) Olusola Akinnifesi;
(ix) Peter McSwiggan;
(x) Tiago Jaime de Pina; and
(xi) William Bristow.
(b) For THP:
(i) Helen Andersen;
(ii) David Longley;
(iii) Jennifer Marangoni;
(iv) Hugo Mayen;
(v) Bruce Mill;
(vi) Francesco Nardone;
(vii) Michael Piasentin;
(viii) Steve Silva; and
(ix) Judy Ward.
(c) For Black & McDonald:
(i) Anthony Curran;
(ii) Joseph Zachariah;
(iii) Fletcher Robinson;
(iv) Dermot Molloy;
(v) Remo Girlato;
(vi) Angelo Castaldo;
(vii) Anita Ashley;
(viii) Emil Akhundov;
(ix) Ricardo Panaligan; and
(x) Anthony Di Gianni.
(d) For Plan Group:
(i) Matt Felix;
(ii) Meghan Reeh;
(iii) Mark Hanson;
(iv) Madhukar Ganatra;
(v) Paul Shewfelt;
(vi) Harris Khan;
(vii) Reza Ghassemi;
(viii) Chris Morris;
(ix) Enrico Casciato; and
(x) John Slattery.
The Parties shall each conduct a reasonable and proportionate search of the records of the custodians identified in paragraph 2 above for relevant documents. However, searches for relevant documents shall not be limited to searches of the records of the custodians identified in paragraph 2 above.
The Parties’ search of the records of the relevant custodians shall include, but not be limited to, a search of each custodian’s emails, files and data storage systems.
After collecting documents from the relevant custodians, the Parties shall each apply the list of search terms and concepts identified in Schedule “A” below. Using search terms is only one of the methods the Parties will use to isolate relevant documents. Counsel for the Parties shall make reasonable and diligent efforts to isolate relevant documents for production using their legal judgment in combination with accepted e-discovery technology, so long as there is transparency into custodian lists and search terms.
B. AFFIDAVIT OF DOCUMENTS AND PRODUCTIONS
The Parties shall exchange Affidavits of Documents no later than July 31, 2021, subject to any extensions agreed to by the Parties in writing.
Each of the Parties’ Affidavits of Documents shall list and describe, in separate schedules, the items outlined in Rule 30.03(2).
The Parties shall exchange all Schedule “A” documents in electronic format, and in a manner that is compatible with the Relativity software, regardless of whether those documents were originally in electronic form or hard copy. Parties may request to see any original hard copy documents at a mutually agreeable time and place.
The Parties shall produce electronically stored documents in native format along with extracted text. The metadata load file format and image load file format requirements for Relativity are set out in Schedule “B” below.
For electronically stored documents, the Parties agree to produce the following information (or equivalent thereto) for each document and, to the extent such information is available, from the metadata associated with each document:
(a) DocID
(b) Family ID
(c) Parent DocID
(d) Attach DocID
(e) Time Sent (email)
(f) Document Date / Time
(g) Lead Date / Time
(h) Extracted Text
(i) Author
(j) Recipient
(k) Filename
(l) Native File Path
(m) Text Path
(n) Time Zone
(o) Title
(p) File Type (where it exists but will not manually code for records where this information is missing)
(q) MD5 Hash
(r) File Extension / Document Extension
(s) CC (email)
(t) BCC (email)
Any electronically stored documents that require redaction will be produced in TIFF format with the appropriate redactions applied. OCR with redactions burned in will be provided for any redacted document produced.
The redacting party must identify by labeling the redacted text to specify whether the redacted portions were removed on the basis that they contained privileged information, confidential information, personal information, or irrelevant information, as applicable. The redactions are to be prepared in black for production purposes.
Hard copy documents are to be scanned and provided in TIFF format. The Parties will also produce OCR associated with hard copy documents.
The parties shall provide the following fields of data for scanned paper documents based on industry standard document coding practices:
(a) DocID
(b) Family ID
(c) Parent DocID
(d) Attach DocID
(e) Document Date
(f) Lead Date
(g) Author
(h) Recipient
(i) CC
(j) BCC
(k) Subject or Title
- The database document identification prefix shall be as follows:
Party
Prefix
Walsh
WALSH
THP
THP
Black & McDonald
BM
Plan Group
PG
The Parties shall each bear their own costs in connection with the collection, review and production of documents, subject to any Order of the Court with respect to costs in the course of or at the conclusion of these proceedings.
The Parties agree to the following terms regarding the inadvertent production of privileged documents, or documents that are irrelevant to the proceedings but confidential in nature:
(a) Inadvertent production of otherwise privileged documents or information will not constitute a waiver of the privilege (either applying to the document or the subject matter), if reasonable good faith efforts have been made to identify and withhold privileged documents;
(b) The receiving Party shall notify the producing Party immediately following the discovery of a document which it believes to contain inadvertently produced privilege information, or irrelevant confidential information;
(c) Upon receiving notification from the producing Party that it believes it has produced a document containing privileged or irrelevant confidential information, the receiving Party will refrain from reviewing that document;
(d) The producing Party may require the immediate return and/or destruction of inadvertently produced privileged documents, or documents containing irrelevant confidential information, by providing the receiving Party with timely written notice of the claim;
(e) Where privilege or confidentiality only extends to part of an inadvertently produced document, the producing Party shall provide a redacted copy of the document;
(f) All copies of inadvertently produced privileged documents, or documents containing irrelevant confidential information, shall immediately be destroyed by the receiving Party, unless such Party disputes the basis for the claim or privilege or confidentiality; and
(g) The Parties may seek the assistance of the Court to resolve such disputes after an in camera review of the relevant document(s).
C. EXAMINATIONS FOR DISCOVERY
- The persons to be produced for examination for discovery are:
(a) William Bristow or Tiago Jaime de Pena, on behalf of Walsh, with THP reserving its right to examine separate individuals on behalf of the three Walsh entities, if necessary, and with Walsh reserving its right to object to multiple examinations by THP;
(b) Steve Silva, on behalf of THP;
(c) Anthony Curran, on behalf of Black & McDonald; and
(d) Matt Felix, on behalf of Plan Group.
The examinations for discovery may proceed virtually, and shall be completed by November 30, 2021, unless otherwise agreed to in writing by the Parties. The Parties shall endeavor to agree on exact dates for the examinations for discovery no later than March 31, 2021.
Each witness shall be examined for two days, unless otherwise agreed to in writing by the Parties.
In circumstances where more than one Party intends to examine a witness as provided in the Rules of Civil Procedure, there shall be a single examination for discovery in accordance with Rule 31.05. If the Parties are unable to reach agreement on: (a) the order in which the examinations for discovery take place; (b) the length of time for which each witness may be examined in total; and/or (c) the division of questioning, the Parties will seek the assistance of the case management Judge in advance of the examinations.
Transcripts from the examinations of discovery shall be available to be used in all of the Credit Valley Actions.
D. UNDERTAKINGS, ADVISEMENTS AND REFUSALS
- Undertakings, positions under advisement and refusals are to be completed within 90 days of the completion of the examinations for discovery, unless otherwise agreed to in writing by the Parties.
E. DISCOVERY-RELATED MOTIONS
- Any motions arising from the undertakings, positions under advisement or refusals must be brought (although not necessarily heard) no later than 60 days after the receipt of completed undertakings, positions under advisement and refusals, unless otherwise agreed to in writing by the Parties.
F. OTHER PROVISIONS
The Parties acknowledge that the purpose of this Discovery Plan is to agree on procedures for compliance with the Parties’ respective obligations with respect to documentary and oral discovery, and thereby reduce costs. This Discovery Plan is not intended to define all of the Parties’ respective obligations with respect to the production of documents, and this Discovery Plan shall not impact the discovery rights and obligations otherwise imposed by the Rules, unless expressly noted herein.
The Parties acknowledge that, as additional information becomes available throughout the course of the actions, it may become apparent that: (i) it is impractical or impossible for a Party to comply with the terms of this Discovery Plan, or to do so in a time-efficient, cost-efficient or proportionate manner; or (ii) further steps beyond those set out in this Discovery Plan are required in order for a Party to obtain access to relevant documents in the action. The Parties agree to negotiate in good faith with respect to any amendments to the Discovery Plan requested by a Party on this basis. Any amendments to the Discovery Plan shall be recorded in writing.
This Discovery Plan is signed by the Parties’ counsel and shall bind the Parties.
PREPARED AND AGREED UPON BY:
March , 2021
DAVIES WARD PHILLIPS & VINEBERG LLP
155 Wellington Street West
Toronto ON M5V 3J7
Andrew Carlson (LSO# 58850N)
E-mail: acarlson@dwpv.com
Tel: 416.367.7437
Fax: 416.863.0871
Lawyers for Walsh Infrastructure Credit Valley, Ltd., WCC Construction Canada, ULC o/a Walsh Canada and The Walsh Group, Ltd.
March , 2021
BORDEN LADNER GERVAIS LLP
100 Queen Street, Suite 1300
Ottawa ON K1P 1J9
John Melia (LSO# 44189B)
Tel: 613.787.3517
Fax: 613.230.8842
Lawyers for Trillium Health Partners
March , 2021
NORTON ROSE FULBRIGHT CANADA LLP
45 O'Connor Street
Ottawa ON K1P 1A4
Dan Leduc
Tel.: 613.780.1536
Fax: 613.230.5459
Lawyers for Black & McDonald Limited
March , 2021
FASKEN MARTINEAU DUMOULIN LLP
Bay Adelaide Centre 333 Bay Street, Suite 2400 Toronto ON M5H 2T6
Michael Round
Tel.: 416.868.3426 Fax: 416.364.7813
Lawyers for Plan Group Inc.
SCHEDULE "A"
Search Terms and Concepts
A. CONCEPTS
Without limiting the Parties’ obligations to produce relevant documents in accordance with the Rules, as set out in paragraph 2 in this Discovery Plan, the Parties shall produce documents relating to the following concepts:
Concepts
Allegations of flawed/designs constructability issues
Allegations of unforeseen site conditions
Allegations of phasing and work sequencing issues
Allegations of use and access issues
Allegations of scheduling/delay issues
Revisions made to the baseline schedule
Disputes regarding changes to the work
Allegations of THP/Cannon Design’s delayed and inadequate responses to Requests for Information
Hybrid solution for electrical feeder cables
Fire incident that occurred when Black & McDonald was testing certain equipment on May 29, 2019
Certification of Substantial Completion and substantial performance, including commissioning
Payments made for changes to the scope of work
Damages claimed by each of the Parties
B. WALSH SEARCH TERMS
Walsh will perform a preliminary family inclusive search using the following search terms (the “Project Responsive Search”):
Project Responsive Terms
THP
TPH
Trillium*
Cannon*
CVH
CHV
Credit Valley
2200 Eglinton
After performing the Project Responsive Search, Walsh will run an additional family inclusive search using the following search terms:
Keyword Responsive Terms
“Application* for payment”
Adjust*
“Ambulance Garage”
(Amend* w/10 agreement*)
"Bad Faith"
"CADA"
"Cash Allowance Disbursement Authorization"
"CCN"
"CD"
"Change Directive"
"Change Order"
Constructability
Constructible
(Contaminated w/3 soil*)
"Contemplated Change Notice"
“Critical Path”
Deficienc*
"Design Contingency"
Feeder
Flaw*
"Good faith"
Hybrid
Interrupt*
Manpower
Micro-phas*
Micro-schedule*
Microschedule*
(Minutes w/10 meeting*)
Mold
Mould
"PDC"
(Phas* w/5 stack*)
“RAC”
(Report /5 monthly) OR (Report w/5 weekly) OR (Report w/5 daily)
“Request for Equitable Adjustment in Contract Price”
"Request for Information"
(Reserve* w/5 right*)
"RFI"
"SCO"
“Sequencing”
“Site Condition”
“Site Inspection”
"Site Instruction"
Stantec
Substantial
"Supplemental Instruction"
“Supplementary Instruction”
“Turn Over”
“Turnover”
Unforsee*
Unforesee*
"Work Zone Request"
"WZR"
C. THP SEARCH TERMS
Keyword Responsive Terms
Adjust*
“Ambulance garage”
(amend* w/10 agreement*)
“Application* for payment”
“Bad faith”
Cannon*
“CCN”
“CD”
“Change directive”
“Change order”
Constructability
Constructible
(Contaminated w/3 soil*)
“Contemplated Change Notice”
“Critical path”
Deficienc*
“Design contingency”
Feeder
Flaw*
“Good faith”
Hybrid
Interrupt*
Manpower
Micro-phase*
Micro-schedule*
Microschedule*
(Minutes near/10 meeting*)
Mitigat*
Mold
Mould
“PCo”
“PDC”
“Project Co”
(Report near/5 monthly) OR (Report near/5 weekly) OR (Report near/5 daily)
“RAC”
“Request for Equitable Adjustment in Contract Price”
“Request for Information”
(Reserve* near/5 right*)
“RFI”
“SCO”
Sequencing
“Site Condition*”
“Site Inspection”
“Site Instruction”
Stantec
Substantial
“Supplemental Instruction”
“Supplementary Instruction”
“Turn over”
Turnover
Unforesee*
Unforsee*
Walsh
“Work Zone Request”
“WZR”
D. BLACK & MCDONALD SEARCH TERMS
Project Responsive Terms
Walsh
WCC
THP
TPH
Trillium*
Cannon*
CVH
CHV
Credit Valley
2200 Eglinton
After performing the Project Responsive Search, Black & McDonald will run an additional family inclusive search using the following search terms:
Keyword Responsive Terms
“Application* for payment”
Adjust*
“Ambulance Garage”
(Amend* w/10 agreement*)
"Bad Faith"
"CADA"
"Cash Allowance Disbursement Authorization"
"CCN"
"CD"
"Change Directive"
"Change Order"
Constructability
Constructible
(Contaminated w/3 soil*)
"Contemplated Change Notice"
“Critical Path”
Deficienc*
"Design Contingency"
Feeder
Fire
Flaw*
"Good faith"
Hybrid
Interrupt*
Manpower
Micro-phas*
Micro-schedule*
Microschedule*
(Minutes w/10 meeting*)
Mold
Mould
"PDC"
(Phas* w/5 stack*)
“RAC”
(Report /5 monthly) OR (Report w/5 weekly) OR (Report w/5 daily)
“Request for Equitable Adjustment in Contract Price”
"Request for Information"
(Reserve* w/5 right*)
"RFI"
"SCO"
“Site Condition”
“Site Inspection”
"Site Instruction"
Stantec
Steris
Substantial
"Supplemental Instruction"
“Supplementary Instruction”
“Turn Over”
“Turnover”
Unforsee*
Unforesee*
"Work Zone Request"
"WZR"
E. PLAN GROUP SEARCH TERMS
Plan Group will perform a preliminary family inclusive search using the following search terms (the “Project Responsive Search”):
Project Responsive Terms
THP
TPH
Trillium*
Cannon*
CVH
CHV
Credit Valley
2200 Eglinton
After performing the Project Responsive Search, Plan Group will run an additional family inclusive search using the following search terms:
Keyword Responsive Terms
“Application* for payment”
Adjust*
“Ambulance Garage”
(Amend* w/10 agreement*)
"Bad Faith"
"CADA"
"Cash Allowance Disbursement Authorization"
"CCN"
"CD"
"Change Directive"
"Change Order"
Constructability
Constructible
(Contaminated w/3 soil*)
"Contemplated Change Notice"
“Critical Path”
Deficienc*
"Design Contingency"
Feeder
Flaw*
"Good faith"
Hybrid
Interrupt*
Manpower
Micro-phas*
Micro-schedule*
Microschedule*
(Minutes w/10 meeting*)
Mold
Mould
"PDC"
(Phas* w/5 stack*)
“RAC”
(Report /5 monthly) OR (Report w/5 weekly) OR (Report w/5 daily)
“Request for Equitable Adjustment in Contract Price”
"Request for Information"
(Reserve* w/5 right*)
"RFI"
"SCO"
“Site Condition”
“Site Inspection”
"Site Instruction"
Stantec
Steris
Substantial
"Supplemental Instruction"
“Supplementary Instruction”
“Turn Over”
“Turnover”
Unforsee*
Unforesee*
"Work Zone Request"
"WZR"
SCHEDULE "B"
Document Exchange Load File Requirements
ELECTRONICALLY STORED INFORMATION – Original Documents
The following are the preferred specifications for receiving electronic documents:
• All documents are to be transferred in electronic form using a metadata load file (CSV, DAT, or TXT). Each document in the load file should have an accompanying Native file, OCR Text file, and/or Image file(s), typically stored in subfolders; The OCR and Images should be in original form without redactions. If images are included, an associated image load file (OPT, LFP or DII) is also required.
• All data fields being migrated (processed and/or manually coded) should be included in the metadata load file.
• If a duplicate document is attached to two or more different emails, then both document families (the emails and their respective attachments) should be produced in their entirety. In other words, the duplicate document(s) should not be removed.
• Each line in the load file will be a string of fields separated by specific delimiters (see below). Each line represents a document, except for the first line which contains the names of the fields.
SPECIFIC DETAILS OF THE CSV, DAT OR TXT LOAD FILE
The .CSV, .DAT or .TXT file shall include electronically extracted metadata for the documents and/or or manually coded fields, using the following fields and parameters:
FIELD
DATA TYPE
LENGTH OF FIELD
Unique Document ID
(BegDoc or DocID)
Alpha/numeric
Maximum 30 characters. The field should be surrounded by the “Quote” Delimiter
Parent ID or Family Group
(The document ID of the parent document, to be included for any attachment)
(BegAtt can be used)
Alpha/numeric
Maximum 30 characters.
If the document is the lead parent, then this field should be blank. The field should be surrounded by the “Quote” Delimiter.
Date Fields
MM/DD/YYYY hh:mm:ss
Date fields can optionally have the time included in either 24 hour or AM/PM format. The field should be surrounded by the “Quote” Delimiter
Text Fields
Text
Text fields should be surrounded by the “Quote” Delimiter and can contain
• Single Text Entries (ie Document Title, Author)
• Multiple values that are separated by the “Multi-Value” Delimiter and/or values that represent levels (such as Issues and Sub-Issues or folder paths) that are separated by the “Nested” Delimiter
• Long Text consisting of multiple lines (paragraphs) where the line breaks are identified by the “NewLine” Delimiter
Numeric Fields
Whole or Decimal numbers
Numeric fields should be surrounded by the “Quote” Delimiter
Examples of Date Fields:
Document Date, Sent Date, Received Date, Created Date, Modified Date
Examples of Text Fields:
Author, Email From, Email To, CC, BCC, Document Title, Email Subject, MD5, Notes, Original Path, Issue Coding METADATA DELIMITERS
DELIMITER
RELATIVITY DEFAULTS
Field (used to separate each field of the records within the metadata load files)
(ASCII 020)
Quote
þ (ASCII 254)
Multi-Value
; (ASCII 059)
Nested
\ (ASCII 092)
New Line
® (ASCII 174)
To load production images into Relativity, the following are required:
A DAT, CSV, or TXT load file that contains the Unique Document ID above and the associated production document ID
An OPT, LFP, or DII load file is required to load the production images
A DAT, CSV, or TXT load file that links the produced OCR Text to the Production ID, (if the OCR Text reference is not included in the load file for 1) above
[^1]: Terms used but not otherwise defined herein shall have the meanings ascribed to them in the Amended Statement of Claim.