Court File and Parties
COURT FILE NO.: CV-20-006367802 MOTION HEARD: 20210323
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TVM Cobourg Inc. and TVM Construction Management Inc., Plaintiffs AND: Peter C. Hillar and Greyfield Construction Co. Ltd., Defendants
BEFORE: Master B. McAfee
COUNSEL: J. Spotswood, Counsel for the Moving Parties, the Plaintiffs C. Sparling, Counsel for the Responding Parties, the Defendants
HEARD: March 23, 2021
REASONS FOR DECISION
[1] This is a motion brought by the plaintiffs, defendants to the counterclaim TVM Cobourg Inc. (“TVM Cobourg”) and TVM Construction Management Inc. (“TVM Construction”) (collectively “TVM”) for an order approving the draft discovery plan found at Schedule “A” to the amended notice of motion or, in the alternative, for an order setting a discovery plan.
[2] TVM Cobourg is the owner and developer of lands located at 135 Orr Street, Cobourg, Ontario. TVM Construction is the general contractor of a residential condominium located on the lands, known as the Harbour Breeze Condominium Project (“the project”).
[3] The defendant, plaintiff by counterclaim Greyfield Construction Co. Ltd. (“Greyfield”) is a subcontractor for the project. The defendant Peter C. Hillar (“Hillar”) is the president of Greyfield. (Greyfield and Hillar are collectively “the defendants.”)
[4] On March 10, 2020, TVM commenced this action against the defendants for damages in the amount of $1,000,000.00 arising from fraudulent and negligent misrepresentation and breach of contract and damages in the amount of $250,000.00 for defamation. TVM alleges that Hillar signed false statutory declarations and that Greyfield failed to pay its subcontractors. TVM also alleges that that Hillar made false statements including that TVM was not making progress payments to Greyfield.
[5] On August 4, 2020, Greyfield and Hillar served their statement of defence denying the allegations and claiming set off of any monies found owing in CV-20-00000034-0000, a construction lien action brought by Greyfield, commenced on March 11, 2020, in Cobourg, arising from the same project (the Cobourg construction lien action). Greyfield also counterclaims against TVM in the amount of $880,152.00 for amounts owing under the contract.
[6] On September 23, 2020, TVM served their reply and statement of defence to the counterclaim. TVM alleges that Greyfield’s counterclaim is an abuse of process because the allegations in the counterclaim are already the subject matter of the Cobourg construction lien action.
[7] There is no order consolidating the actions or transferring one of the actions to the jurisdiction of the other to permit both actions to be tried together in the same jurisdiction. No motion has been brought in that regard. No pleadings in the within action have been struck. No motion has been brought in that regard.
[8] At the outset of the motion, counsel confirmed that the discovery plan found at Schedule “A” to the amended notice of motion has now been agreed to, including an agreement to change the deadline for delivery of Schedule “A” productions at paragraph 8 to June 15, 2021, and an agreement to change the deadline for conducting examinations for discovery at paragraph 10 to August 15, 2021.
[9] Counsel confirmed that remaining in dispute in the proposed discovery plan is the defendants’ request that the discovery plan also include the following:
- A provision with deadlines for service of Scott Schedules as found at page 92 of the Motion Record, CaseLines A104;
- An additional bullet point in Appendix “A” – Scope of Documentary Discovery stating “All documents relating to matters alleged in the pleadings, including the claims for set off and counterclaims by Greyfield” as found at page 171 of the Responding Motion Record, CaseLines B-1-73.
[10] The defendants also argue that I ought to treat TVM’s motion for a discovery plan as a motion by the defendants for production of a further and better affidavit of documents from TVM. I declined to do so. There is no motion before me for such relief. Even if I was prepared to treat this motion as a motion for a further and better affidavit of documents, which I am not, a copy of the plaintiffs’ draft affidavit of documents was not filed for the purpose of this motion. No draft or sworn affidavit of documents has been served by the defendants. A motion for a further and better affidavit of documents is premature. The discovery plan has not yet been agreed to or approved.
[11] After I advised counsel for the defendants that I would not treat TVM’s motion for a discovery plan as the defendants’ motion for a further and better affidavit of documents, the defendants withdrew their consent to the agreed upon dates noted above, indicating that they intended to bring a motion for a further and better affidavit of documents.
[12] Notwithstanding that the defendants no longer consent to the previously agreed dates, I am ordering those dates, adjusted for the period of time this decision was under reserve. If the defendants require an extension of any deadline ordered, and if same is not agreed to, the defendants may request any necessary extension on an appropriate motion.
[13] With respect to the defendants’ request that a provision be included with deadlines for the service of Scott Schedules, I am not prepared to include such a provision in the discovery plan. Although TVM takes that position that they were not required to do so, the parties previously agreed to serve Scott Schedules and have in fact served Scott Schedules. A deadline for service of Scott Schedules is no longer required. If the defendants’ issue is with the sufficiency of TVM’s Scott Schedule, then the defendants are at liberty to bring any motion that may be appropriate seeking relief in that regard. On such a motion, TVM is at liberty to take the position that Scott Schedules are not required in a non-construction lien action. No case law was before me on this issue.
[14] With respect to the defendants’ request that a provision be included in Appendix “A,” I revised the proposed provision to end after the word “pleadings.” Reference to pleadings includes all pleadings. There is no need to refer to part of, or all of, a pleading specifically. As noted, no pleadings have been struck.
[15] With respect to costs of the motion, TVM sought costs in the amount of $4,734.00, if successful. The defendants sought costs in the amount of $4,675.00, if successful.
[16] The material filed by both parties consisted of affidavits attaching email communications and various versions of the discovery plan. No case law or facta were filed. The motion was approximately one hour in length.
[17] I did not treat TVM’s motion as a motion brought by the defendants for a further and better affidavit of documents or include a deadline for service of Scott Schedules. I did include some, but not all, of the wording requested by the defendants in Appendix “A”. The plaintiff needed to bring this motion to move the matter forward.
[18] Having regard to all of the circumstances of this motion and the relevant factors set forth at Rule 57.07(1), I am satisfied that TVM is entitled to some costs of this motion. A fair and reasonable amount that the defendants could expect to pay for costs is the all-inclusive sum of $1,000.00 payable to TVM in the cause.
[19] Order to go as follows:
The discovery plan found at Schedule “A” to the amended notice of motion is approved subject to the following: a. the deadline for service of copies of Schedule “A” productions at paragraph 8 is changed to July 15, 2021; b. the deadline for conducting examinations for discovery at paragraph 10 is changed to September 15, 2021; c. a bullet point shall be added to Appendix “A” stating “All documents relating to matters alleged in the pleadings.”
Costs of the motion are fixed in the all-inclusive sum of $1,000.00 payable by the defendants to TVM in the cause.
Master B. McAfee
Date: April 27, 2021