COURT FILE NO.: CV-15-532461
DATE: 2021 04 19
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: PETER MAIER, Plaintiff
- and -
CEDARBUILT PROJECT MANAGEMENT LTD. c.o.b as CEDARCOAST TIMBER HOMES, CEDARBUILT HOMES LTD., PATRICK BONGERS, JOE AMOS, GIOVANNI VERONESI, ITALIAN CRAFTSMANSHIP TILE AND MARBLE INC., CHARTRAND CARPENTRY, DAVID HAYNES c.o.b. as EVERLASTING HABITATIONS, FCI WINDOWS INC., JAKE THERRIEN, 1015321 ONTARIO LIMITED, SGP FLOOR SYSTEMS LTD., SCHLUTER SYSTEMS (CANADA) INC., INTERLOCK INDUSTRIES (ONT.) INC. / INDUSTRIES INTERLOCK (ONT.) INC., HORSESHOE HEATING & AIR CONDITIONING, and MATTHEW KERR, Defendants
BEFORE: Master Todd Robinson
ATTENDING: W. Greenley and R. Tighe, for the plaintiff D. Haynes, for himself T. Awakian, for the defendant, SGP Floor Systems Ltd. C. Caffarena, for the defendant, Schluter Systems (Canada) Inc. P. Omeziri, for the defendant, Italian Craftsman Tile and Marble Inc. T. Anderson, for the defendants, Horseshoe Heating & Air Conditioning and Matthew Kerr
HEARD: January 19, 2021 (by videoconference)
REASONS FOR DECISION
[1] The plaintiff, Peter Maier (“Maier”), moves for a status hearing pursuant to Rule 48.14(5) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”), seeking extension of the set down deadline and a timetable for remaining interlocutory steps. In the action, Maier seeks damages from his contractor, its principals, and various subcontractors and material suppliers regarding alleged defects in the construction of a custom home on Sparrow Lake in Gravenhurst.
[2] Maier’s motion is only opposed by David Haynes (“Haynes”), who filed no responding materials. All other defendants and third parties take no position. Almost all confirmed that they do not oppose the motion provided that no costs are sought against them. Also, none of the defendants argue that the action should be dismissed in its entirety if Haynes is successful in his opposition, provided that crossclaims against Haynes continue.
[3] For the reasons that follow, I have determined that Maier has shown cause why this action should not be dismissed for delay. I grant Maier’s motion and fix both a new set down deadline and a timetable for remaining steps.
Analysis
Test on a Status Hearing
[4] A discretionary two-part conjunctive test is applied in determining a status hearing. Maier must demonstrate both an acceptable explanation for delay in prosecuting the action and, if the action is allowed to proceed, that the defendants will suffer no non-compensable prejudice: Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590 at para. 13; Faris v. Eftimovski, 2013 ONCA 360 at para. 32.
Quality of Evidence
[5] A main challenge by Haynes is the lack of knowledge of the sole affiant relied upon by Maier, namely a Law Society of Ontario licensing candidate who works at Maier’s lawyer’s firm. Maier tendered no direct evidence himself. Haynes’ submissions are, in substance, an argument that I should not rely on anything stated by the licensing candidate because he has no personal knowledge of the action. Notwithstanding my own concerns about quality of the evidence before me, I am prepared to overlook the evidentiary shortcomings and consider the affidavit in the particular circumstances of this motion.
[6] I agree that nothing in the licensing candidate’s affidavit supports any personal knowledge of events, or even that he has past or current involvement in the file beyond this motion. The affidavit relies entirely on hearsay. The licensing candidate states that he has reviewed the law firm’s file and that he has been advised of the facts in his affidavit by plaintiff’s counsel, Robert Tighe, and believes they are true. Hearsay in an affidavit is permissible if there is compliance with Rule 39.01(4) of the Rules, but some of the law student’s evidence constitutes at least double hearsay, which does not comply with the exemption in Rule 39.01(4): Airst v. Airst, [1999] OJ No 5866 (CA) at para 6.
[7] Having a plaintiff’s direct evidence is not an essential element on a status hearing motion: Goldman v. Pace, 2017 ONSC 1797 (Master) at para. 9. In my view, though, given the nature of the motion, Maier ought to have put forward his own affidavit evidence. Maier’s inability to swear to procedural history is no excuse. A further affidavit from someone at the law firm with personal knowledge could have been submitted for that purpose. Maier could also have sworn those portions of an affidavit on information and belief. That is what was done by the licensing candidate.
[8] While Maier’s own evidence would have been preferable, the licensing candidate’s affidavit is the only evidence before me. Neither Haynes nor any other party has put forward evidence with a contrary narrative or contesting the account of events in the affidavit. The licensing candidate’s statements are often corroborated by contemporaneous correspondence. In this case, the corroboration provides a sufficient basis for reliability that, in my view, makes it unjust to disregard the affidavit.
Explanation for Delay
[9] From the evidence filed, the litigation history is summarized as follows:
(a) In July 2015, the statement of claim was issued. It was apparently provided to at least Cedarbuilt Project Management Ltd. and/or Cedarbuilt Homes Ltd. (“Cedarbuilt”), although does not appear to have been formally served at the time.
(b) At the time of issuance, there appear to have been ongoing settlement discussions between Maier and Cedarbuilt. It also appears that a request was made to defer service of the statement of claim on Cedarbuilt’s subcontractors and suppliers during those discussions.
(c) In November 2015, the statement of claim was amended.
(d) In December 2015, a settlement meeting occurred between Maier, his counsel, and Cedarbuilt’s principal, Patrick Bongers, at which it was agreed that Cedarbuilt would prepare a proposal for addressing the various alleged deficiencies.
(e) In late December 2015, Cedarbuilt and its principals retained counsel, who confirmed that without prejudice discussions could continue. Maier thereafter made efforts to serve the remaining defendants.
(f) In January 2016, Maier obtained an order extending the time for service of the statement of claim and for substituted service on three defendants. Those defendants were subsequently served.
(g) Various defendants requested indulgences in delivering statements of defence, including Cedarbuilt and Haynes, which were granted by Maier.
(h) In February 2016, a further amended statement of claim was circulated to the defendants for review and their consent. These amendments were to address a misnomer identified by a defendant. Between February and June 2016, consent was provided by the majority of defendants, but a motion was ultimately booked and served on notice to the remaining non-consenting defendants.
(i) In June 2016, Cedarbuilt provided a proposal for remedying the alleged deficiencies.
(j) In September 2016, Maier’s motion to further amend the statement of claim was heard on an unopposed basis. Consent of all but one defendant had been obtained.
(k) Through the remainder of 2016 and into mid-2017, deficiency charts were provided and statements of defences were demanded and served. Further defences were provided through July 2017.
(l) In August 2017, Maier’s counsel sought to coordinate both exchanging affidavits of documents and scheduling examinations for discovery. In the period from August to October 2017, a third party claim was issued by Interlock Industries (Ont.) Inc., efforts to schedule examinations continued, some affidavits of documents were served, and Cedarbuilt and its principals served an amended statement of defence.
(m) In October 2017, an all party conference call occurred to discuss next steps in the action, which Haynes did not attend. Although Haynes made submissions that he was unaware of the conference call, which may be the case, there is no evidence in the record before me on why he did not attend. Providing a breakdown of Maier’s damages, exchange of remaining affidavits of documents, and timing of a potential mediation and examinations for discovery was apparently discussed.
(n) In November 2017, Maier engaged an engineer/estimator to prepare a detailed scope of work and estimate to repair the alleged deficiencies. Affidavits of documents were served by various defendants.
(o) In December 2017, a further all party conference call occurred to discuss a timetable for next steps. Several defendants’ counsel expressed a desire to inspect the property, which was discussed to occur following winter in April or May 2018. Potential pre-examination mediation was also further discussed. Maier’s counsel sent a letter following the meeting that requested inspection availability in April and May 2018, mediation availability for summer 2018, and discovery availability for July to September 2018.
(p) Correspondence continued to be exchanged between January and February 2019. Maier’s lawyers also coordinated with Maier on his affidavit of documents through April and May 2018, including addressing collection issues. There does not appear to have been any communication to the defendants about these efforts or issues.
(q) Between May and July 2018, further correspondence was exchanged regarding inspection of the property. It appears that Maier was making concerted efforts to accommodate the defendants in their attendance.
(r) On August 1, 2018, a conference call took place to discuss inspection, mediation and discoveries. Further efforts by Maier’s counsel followed the call to arrange an inspection on dates mutually available to the defendants and their experts. Maier’s counsel also proposed case management of the action, to which some defendants provided positive responses.
(s) On September 11, 2018, inspection of the property proceeded.
(t) Between October and December 2018, Maier’s lawyers continued work on Maier’s affidavit of documents and began preparing a motion seeking case management.
(u) In early 2019, Maier retained an expert to assist in preparing a Scott Schedule. A further conference call also occurred at which Maier’s counsel agreed to abandon seeking case management and a timeline was discussed for providing the Scott Schedule.
(v) In March and April 2019, further affidavits of documents were served by defendants.
(w) In May 2019, Maier’s counsel provided a draft Scott Schedule to the defendants, while Maier’s expert was still investigating and determining the scope of required remedial work. Cedarbuilt provided a response to the initial Scott Schedule the same month. Expert review and work on the Scott Schedule continued through the balance of 2019 and into early 2020. The completed Scott Schedule was ultimately sent to the defendants on April 8, 2020.
(x) On July 24, 2019, the final outstanding statement of defence from Italian Craftsmanship Tile and Marble Inc. and Giovanni Veronesi was delivered.
(y) By December 2019, case management was being considered again. Consent to case management was reached, and a letter was sent to the Regional Senior Judge in February 2020.
(z) In March 2020, Justice Schabas was assigned as case management judge. A case conference was held on April 23, 2020, at which Justice Schabas ordered that the action be referred to a construction master and that Maier serve his affidavit of documents within 30 days. Maier thereafter served his affidavit of documents in compliance with Justice Schabas’ order.
(aa) On April 24, 2020, the reference was assigned to me, with a first hearing for directions ultimately proceeding on September 2, 2020.
[10] During Haynes’ submissions, he argued unexplained delay in Maier bringing this action following completion of construction work. Relevant delay for a status hearing motion is the delay since commencement of litigation. Delay prior to commencing litigation is the subject matter the limitations defences pleaded by various defendants, including Haynes.
[11] A status hearing should not be a week by week or month by month analysis of the progress of an action. Rather, overall delay is assessed and the court is to determine whether the plaintiff’s explanation is acceptable: Goldman v. Pace, supra at para. 5. Progress in this litigation has been slow, and at times has been slower than it ought reasonably to have been, such as delay in bringing a motion for further amendment of the statement of claim in the hopes that all parties would consent. However, the litigation has moved forward in a generally consistent manner since its commencement. The action has not been ignored by Maier. Although I do not agree with Maier’s suggestion that the fault for delay lies primarily with the defendants, many periods of delay are explained by accommodating requests made by the defendants, such as indulgences in their statements of defence and scheduling the pre-examination property inspection.
[12] Although Haynes made submissions that he did not receive correspondence sent by Maier’s counsel, so was unaware of any steps or the conference calls taking place, that is not in evidence. Regardless of whether or not Haynes actually received the letters sent by Maier’s counsel, nothing in the record suggests any intention on the part of Maier to abandon the action. To the contrary, the evidence supports an ongoing intention to prosecute it.
[13] For these reasons, I am satisfied that Maier has provided a sufficiently acceptable explanation of the litigation delay.
Prejudice
[14] Because the test is conjunctive, my determination above is not dispositive of the motion. Whether there is non-compensable prejudice must also be considered.
[15] No responding evidence was filed by Haynes or any other defendant (or any third party), so there is no evidence of actual prejudice. I am satisfied that Maier has rebutted the presumption of prejudice inherent in litigation delay. In particular, I note the following:
(a) affidavit of documents and productions have been exchanged, and there is no evidence of any unavailable documents;
(b) the defendants and experts have inspected the property;
(c) although not itself evidence, a detailed Scott Schedule has been prepared particularizing alleged defects and deficiencies in the work, with no responding evidence filed supporting any evidentiary issues with claimed items arising from litigation delay;
(d) all of the named parties and their representatives appear to remain available;
(e) although construction occurred more than a decade ago, and witness memories do fade over time, I accept that much of Maier’s argument on defective work will turn on documents and expert opinion evidence; and
(f) there is no evidence before me supporting that any prospective witnesses will be unable to refresh their memory from preserved and available documentation.
[16] I am accordingly satisfied that, on the record before me, there is no basis to find that the defendants will suffer any non-compensable prejudice if the action is allowed to continue.
[17] I appreciate Haynes’ frustration with the overall progress of this action and, in particular, the need to continue defending against negligence claims for his role in work performed more than a decade ago. An unfortunate reality of civil litigation is that, often, it is slower than many litigants would like. Reference of the action to a construction master and the specialized management that a reference process permits should assist in moving the action forward more expeditiously.
Disposition
[18] For the foregoing reasons, Maier has shown cause why the action should not be dismissed for delay. I accordingly order as follows:
(a) This action shall be permitted to continue with the following timetable:
(i) Examinations for discovery of the remaining defendants and third parties shall be completed by June 30, 2021;
(ii) Answers to undertakings and positions on advisements, if any, of all parties shall be provided by July 31, 2021;
(iii) A final version of the Scott Schedule shall be prepared by August 15, 2021;
(iv) Mediation shall be completed by August 31, 2021;
(v) Any motions on undertakings and refusals shall be booked and served (although not necessarily heard) by September 30, 2021; and
(vi) This action shall be set down for trial by November 30, 2021, failing which it shall be dismissed for delay by the registrar.
(b) Maier shall forthwith serve a copy of these reasons for decision on all defendants and third parties.
(c) This order is effective without further formality.
Costs
[19] Maier’s costs outline was filed at the conclusion of the hearing. Haynes confirmed that he would not be seeking costs in any event. I strongly encourage Maier and Haynes to resolve costs of the motion between themselves. If they are unable to do so, then Maier shall deliver written costs submissions by May 5, 2021. Haynes shall deliver responding submissions by May 14, 2021. There shall be no reply submissions. Costs submissions shall not exceed four pages, excluding any offers to settle or case law.
[20] Service of all costs submissions by email is hereby authorized. All costs submissions shall be submitted by email directly to my Assistant Trial Coordinator with a scanned copy of proof of service. Original proof of service need only be filed if the court so directs.
[21] In the absence of receiving written submissions as directed above, the parties shall be deemed to have agreed on costs.
MASTER TODD ROBINSON
DATE: April 19, 2021