COURT FILE NOS.: CV-17-582560; CV-18-598782
MOTION HEARD: 20201127, 20201214, 20210111, 20210126, 20210217, 20210311
WRITTEN SUBMISSIONS FILED: 20210324
REASONS RELEASED: 20210714
SUPERIOR COURT OF JUSTICE – ONTARIO
In the Matter of the Construction Act, R.S.O. 1990, c. C.30, as amended
BETWEEN:
WALSH CONSTRUCTION COMPANY CANADA
Plaintiff
- and-
TORONTO TRANSIT COMMISSION, YORK UNIVERSITY, UNITED PARCEL SERVICE CANADA LTD., THE REGIONAL MUNICIPALITY OF YORK, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE, and CITY OF TORONTO
Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: B. Halfin, G. Smith, M. Mandel and S. Kerr Email: bhalfin@goodmans.ca -for Walsh Construction Company Canada (“WCC”)
M. Aboud, J. Smith and S. Whitmore Email: maboud@osler.com -for Toronto Transit Commission (“TTC”)
REASONS RELEASED: July 14, 2021
Reasons For Endorsement
I. Introduction
[1] These are additional motions by TTC and WCC with respect to refusals and deficient answers to undertakings and refusals from examinations for discovery. This is the last of four large refusals and undertakings motions which have proceeded before me since January 2019.
[2] The motions proceeded over 10 attendances between June 22, 2020 and March 11, 2021 including case conferences before and after two full days of submissions. Significant case management was provided and counsel had discussions and exchanged documents and positions in between attendances. This resulted in the resolution and narrowing of a significant number of disputed questions. On March 24, 2021, counsel filed a comprehensive chart setting out the parties’ positions and indicating items which had been resolved and those which required rulings by the court.
II. Background
[3] The background to this action is set out in greater detail in previous Reasons For Endorsement.
[4] WCC was the general contractor for the construction of the Steeles West (Pioneer Village) Subway Station in Toronto (“SW” or the “Project”), part of the Toronto York Spadina Subway Extension, a $3.184 billion project comprised of 6 above ground stations and an 8.6 km tunnel (the “TYSSE”). As a result of a public tender process, WCC entered into a Contract with TTC dated September 22, 2011 (the “Contract”) pursuant to which WCC agreed to complete the Project for a contract price of $165,925,000 with a substantial performance date of November 4, 2014. The TYSSE and the Project were significantly delayed and SW did not achieve substantial performance until June 15, 2017. WCC claims $218,751,335 from TTC for amounts owing, breach of contract, negligence and failure to act in good faith. TTC has brought a counterclaim for $22,381,666 alleging that WCC and its subcontractors are responsible for delays and deficiencies.
[5] The Contract sets out a process whereby WCC could submit claims against TTC related to delays and/or additional costs (the “Contract Claims”). On August 14, 2014, WCC submitted its “Claim for Adjustment of Contract Price and Extension of Time” (the “Red Book”) setting out its Contract Claims related to SW up to and including December 31, 2013. In the Red Book, WCC sought an increase in the Contract Price of $136,959,126.34 and an extension of 694 days. On September 19, 2017, WCC delivered an updated Contract Claim entitled “Claim #2 For Adjustment of Contract Price and Extension of Time” for all claims up to and including December 31, 2016 (the “Blue Book”, collectively with the Red Book, the “Books”).
[6] As set out in my Reasons For Endorsement dated February 22, 2019, the first group of 9 motions involving approximately 680 refusals between WCC, TTC and other subcontractors proceeded on January 28, 29 and 30, 2019. WCC and TTC both sought answers to approximately 200 refusals arising from initial examinations for discovery held September 17-October 22, 2018 (Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 1630) (the “February 2019 Reasons”).
[7] Two additional motions arose from the February 2019 Reasons: one heard on May 3, 2019 with respect to TTC’s assertion of litigation privilege over portions of a report by Bechtel Canada Co. (“Bechtel”)(Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 5537), and another over 5 days between October 2019-February 2020 with respect to TTC’s assertion of litigation privilege over approximately 1,600 documents related to its review of the Red Book (the “Review Documents”) (Walsh Construction Company Canada v. Toronto Transit Commission, 2020 ONSC 3688)(the “Privilege Motion”). An interim motion was also heard on November 28, 2019 in which TTC was denied leave to file additional materials on the Privilege Motion (Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 7041).
[8] Case conferences were held on June 22, August 13 (2 hours), October 23 and October 28, 2020 to speak to the questions at issue on the present motions and provide case management. The parties made two full days of submissions on November 27 and December 14, 2020 and an extended case conference was held on January 11, 2021 for further updates and directions. Counsel continued their exchanges of documents, information and positions and further case conferences were held on January 26, February 17 and March 11, 2021 to provide updates on the status of the remaining items. Counsel filed the final charts on March 24, 2021.
III. The Law and Analysis
Generally
[9] Rule 31.06(1) provides that a person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action. Rule 30.02(2) provides that every relevant document in a party’s possession, control or power shall be produced unless privilege is claimed in respect of the document.
[10] Rule 29.2.03 sets out the proportionality factors which apply to oral and documentary discovery:
(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source.
(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.
[11] Discovery questions must be relevant to the issues as defined by the pleadings such that they have probative value and adequately contribute to the determination of the truth or falsity of a material fact (Ontario v. Rothmans Inc., 2011 ONSC 2504; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917). Overbroad and speculative discovery and “fishing expeditions” are not permitted (Rothmans at paras. 129 and 154-157).
[12] Rules 1.04(1) and Rule 1.04(1.1) are integral to undertakings and refusals motions, particularly ones like the present case. Rule 1.04(1) provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04(1.1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved. Given the significant volume of documents produced and available for production, the complexity, number and overlap of the disputed issues, case management, discussions and agreements with counsel over multiple attendances have been necessary. In many cases, this has included the use of staged productions starting with the parties making inquiries to determine what relevant documentation may exist and produce some or samples, which may lead to further production or lines of inquiry. In my view, this approach, together with counsel’s cooperation, has resulted in a more efficient and proportionate use of the court’s and the parties’ time and resources.
[13] TTC initially sought: i.) further answers to 56 answers it considered deficient from undertakings, under advisements and refusals from the 2018 examination of Michael O’Connell of WCC; ii.) answers to 31 refusals from Mr. O’Connell’s 2019 follow-up examination; and iii.) further answers to 20 answers it considered deficient to undertakings, under advisements and refusals from Mr. O’Connell’s 2019 examination. Approximately 25 items remain in dispute.
[14] WCC initially sought: i.) further answers to 16 answers it considered deficient from undertakings, under advisements and refusals from the 2018 examination of John Pipilas of TTC; ii.) further answers to 15 answers to undertakings, under advisements and refusals from Mr. Pipilas’ 2019 follow-up examination it considered deficient; and iii.) answers to 10 refusals from Mr. Pipilas’ 2019 examination. Only one item remains in dispute.
[15] Counsel have recently advised that in preparation for trial in January 2022, the parties will be exchanging a first round of documents by early August 2021. Accordingly, in the interests of expediency, these Reasons will only address items which counsel indicated required rulings in the March 24 chart. If, as originally contemplated, it would assist the parties to have a summary which includes all items resolved by agreement including terms, an addendum to these Reasons can be spoken to.
[16] I will consider the disputed items below as requested by the parties. Item numbers are taken from the charts filed on March 24, 2021. Counsel have recently confirmed that there are no further disputed issues or submissions. As with more recent Reasons, I have not ordered any timelines for the production of documentation and information. Counsel have been cooperative in this regard and have better insight into how long it will take to complete the necessary steps.
TTC’s Motion
[17] Internal Milestone Documents (Items 1, 2 and 3, WCC 2019 Refusals)(Items 3, 4, 5, WCC 2018 Deficient Answers) – TTC seeks the production of internal documents generated by Milestone, WCC’s scheduling consultant which assisted in the preparation of the Books. The underlying questions relate to TTC’s request for the documents and records regarding the Red Book exchanged by Milestone and WCC including correspondence. The remaining dispute relates specifically to TTC’s request for Milestone’s own internal correspondence and internal scheduling analysis. In the February 2019 Reasons, I ordered as follows:
“In my view, the request for all documents with respect to Milestone in Refusal #10 is overbroad and requires narrowing. As WCC has agreed to do with respect to other questions, WCC shall make reasonable inquiries and advise what relevant documents are available within 30 days and advise TTC so that TTC can consider a more specific, proportionate request.” (February 2019 Reasons, para. 74)
[18] In its answers to undertakings from Mr. O’Connell’s 2019 follow-up examination, WCC set out the documents which it provided to Milestone. WCC has previously advised that it is not asserting litigation privilege over Milestone’s internal documents however submits that since it has already produced the final schedule analysis, the Project documents which Milestone relied on and would comply with the Rules regarding experts, any further documentation was not relevant or proportionate (August 18, 2020 Endorsement, para. 9). I directed counsel to have further discussions to determine if the disputed issues could be resolved and/or narrowed, “including identifying what documents are available and if the production of some of the documentation requested may resolve them” (August 18, 2020 Endorsement, para. 9). These discussions were unsuccessful. TTC requested a Supplementary Affidavit of Documents which WCC did not provide though it has since offered to deliver one listing documents exchanged between WCC and Milestone, not Milestone’s internal documents.
[19] Interim steps by WCC were required before the parties and the court could address what relevant, non-privileged documents between WCC and Milestone may be available for production. Although WCC maintained its refusal to provide Milestone’s internal correspondence, WCC agreed to produce, among other things, correspondence between WCC and Milestone and the scheduling analysis (January 12, 2021 Endorsement, para. 3). WCC further advised that Milestone maintained issue folders containing working papers which were likely responsive and proportionate which would be reviewed and produced; it would produce the underlying documents with respect to the sample of Job Costing Reports agreed to by the parties and the Building Information Model files (January 12, 2021 Endorsement, para. 3). Assuming that WCC has produced all of these and other documents it has agreed to produce, my understanding is that WCC is still offering to produce a Supplementary Affidavit of Documents with respect to communications and documents between WCC and Milestone while TTC is, at least as an initial step, requesting a list of what internal Milestone documents are available for production.
[20] Both parties tried to draw comparisons or analogies with other documents in this action arguing that reciprocity is necessary to ensure that discovery is fair (IPEX Inc. v. AT Plastics, 2011 ONSC 4732). TTC submits that by requesting and obtaining many of the Review Documents, WCC has admitted that the Milestone documents are relevant because the Review Documents included documents from Bechtel, TTC’s specialty claims consultant and third party project manager, and Navigant, TTC’s scheduling consultant. WCC argues that TTC has not produced any internal documents from Navigant and that Bechtel, a claims specialist which also acted as a project manager who provided personnel, was not in the same position as Milestone. Given the varying and distinct roles that these consultants fulfilled on the Project and differing levels of production, I do not find these submissions particularly helpful.
[21] I also reject WCC’s submission that TTC is unilaterally expanding the scope of discovery. Some of the documentation requested relates to proper questions arising from documents produced and further information provided which is a proper and acceptable part of the discovery process. It is also an integral part of the significant case management efforts on this matter including a staged approach to production from which both parties have benefited. Further, I disagree with WCC’s suggestion that Milestone’s internal documents constitute drafts of the Red Book, which I previously held are non-producible. There is also no basis at this time to conclude that Milestone is an expert witness.
[22] Based on counsel’s submissions and the record before me, it appears that the efforts agreed to by the parties or which I directed have never been fully completed in respect of the internal Milestone documents. In my view, it would not be proportionate for the effort involved or serve any purpose for WCC to deliver the offered Supplementary Affidavit of Documents with respect to documents exchanged between Milestone and WCC. It appears that the issues regarding documents as between WCC and Milestone have been resolved.
[23] The current issue is TTC’s request for WCC to identify what relevant, non-privileged internal Milestone documents may be available for production. In my view, Milestone’s internal correspondence and communications are not relevant or proportionate and one step beyond what is probative. To order Milestone to search its emails and produce a list of internal correspondence and communications related to the Red Book would be disproportionate in the time and effort required, inevitably resulting in thousands of emails many of them not relevant or useful in the litigation. This is all in circumstances where WCC has produced substantial documentation including the documents Milestone relied on, its delay impact analysis and numerous categories of related documents and files.
[24] However, there is a distinction between Milestone’s internal correspondence and other internal documents which may be relevant. For example, to the extent not already produced, Milestone’s issue folders which WCC advised would be reviewed and produced and any similar documents, such as schedules or summaries, would in my view be a relevant, proportionate response to TTC’s requests. In satisfaction of its obligation to advise what documents are available for production, WCC shall make inquiries and advise if any such documents exist which have not already been produced. If there are any such documents, the parties shall first discuss a potential resolution and seek further directions if necessary.
[25] WCC’s Profit and Loss Reports, Overhead, Balance Sheets, Financial Statements (Items 8, 9, 10, 11, WCC 2019 Refusals)(Item 1, 2018 Deficient Answers)(Item 86, WCC 2019 Deficient Answers) – These are requests by TTC for additional financial documentation. To date, WCC has produced significant financial documentation and many of the amounts it is claiming will be the subject of expert evidence.
[26] WCC’s bid for the Project included a profit component. WCC alleges that the amount set out in the Contract for overhead and profit is inadequate given the changes to the scope of work and conditions under which the work was completed. WCC is claiming an additional $19,128,297 for overhead and profit. WCC has confirmed that its claim in this action is for cost recovery and that its profit claim is for the contractual profit component not lost profits generally.
[27] As a result of inquiries made due to case management, WCC has obtained its profit and loss reports (the “PL Reports”). WCC states that the PL Reports do not track actual profits and losses but rather are hypotheticals, best-guesses as to what the costs of the Project might be going forward at different points in time. In this respect, they are not probative of any issues in this litigation including the contractual profit claimed by WCC or unabsorbed home office overhead and I conclude that they do not have to be produced. I am also satisfied that other documentation which has been produced is responsive to TTC’s inquiries regarding WCC’s profit claim.
[28] WCC claims approximately $1,185,672 for unabsorbed overhead by Walsh Group, WCC’s parent, which is not a party to this action. TTC submits that it is entitled to a breakdown of the amount of each item comprising the overhead and how it was calculated. TTC also claims that WCC undertook to provide this information, including, but not limited to, salary, burden, office related expenses and equipment associated functions such as executive, legal, accounting, payroll, IT, human resources and marketing. WCC has produced its audited financial statements which it submits supports the revenues and expenses that factor into the calculations of home office overhead. WCC has also provided TTC with additional documentation and breakdowns including in answers to undertakings and submits that TTC does not require further productions. WCC states that it only undertook to advise where the numbers came from and that these claims will be the subject of expert evidence in any event.
[29] While WCC has produced significant documentation, it is not clear to me what inquiries WCC has made or what breakdowns of the components comprising its overhead claim might be available. I agree with WCC that TTC is not entitled to all back up documentation underlying its overhead claims, such as invoices, receipts and other documents comprising individual amounts. However, this is another case of without knowing what might be available, I am unable to determine what, if anything else, WCC should produce. WCC shall make inquiries and advise what further documents, if any, are available for production excluding underlying documents for each amount and correspondence. If so, the parties shall then discuss whether there is any relevant documentation for production and may seek further directions if necessary.
[30] TTC submits that it requires WCC’s and Walsh Group’s balance sheets to assess WCC’s allegations that it suffered financial strain and cash flow problems due to additional costs including interest/financing costs and bonding it incurred resulting from TTC’s refusal to pay. WCC has produced its job costing transaction reports identifying the dates when it incurred expenses, copies of wire transfers from Walsh Group showing when funds were transferred and its bank statements and confirmed that there was no intercompany charge. I am not convinced that the production of WCC’s and Walsh Group’s balance sheets is proportionate particularly where it appears that the specific information sought by TTC such as interest and financing costs are available in documents already produced such as the bank statements and wire transfers. WCC shall advise/confirm if the interest/financing costs it is claiming in this action are set out in documents already produced and if so, where. If not, WCC shall produce other relevant documents showing this information to the extent that these are available.
[31] Additional Tender Documents (Items 13 and 15, WCC 2019 Refusals) – Pursuant to the Contract, WCC was required to submit one copy of all documentary information generated in preparation of tendered prices for the Contract (the “Escrow Tender Documents”). The Contract further provides that the Escrow Tender Documents remain WCC’s property subject to joint review by WCC and TTC which, given the proprietary nature of the information, shall remain confidential. A result of ongoing discussions, the parties obtained the Escrow Tender Documents, TTC has reviewed them and the parties have agreed that they may be tendered as evidence in this action. The only remaining issues relate to documents not included with the Escrow Tender Documents, namely, any documents generated by Tyler Emerick, WCC’s lead estimator on the Project, to come up with the estimated Project cost and a breakdown of the Project cost prepared by Mr. Emerick. While the parties did not make full submissions on these remaining documents, I am satisfied that the breakdown of the Project cost prepared by Mr. Emerick is relevant and probative of WCC’s claims with respect to the bid and tendering phase and shall be produced. With respect to the documents generated by Mr. Emerick in arriving at the estimated Project cost, while relevant, it would be disproportionate to order the production of all underlying documents, including correspondence. However, to the extent to which there are any schedules or summaries, they shall be produced. WCC shall first advise what documents are available and have further discussions with TTC as part of a staged approach which may require redactions and/or confidentiality terms. The parties may seek further directions if necessary.
[32] WCC RFI Documents (Items 16 and 17, WCC 2019 Refusals) – TTC requests the dates that WCC received Requests For Information (“RFIs”) from its subcontractors and how long it took WCC to review them. This issue was initially considered in the February 2019 Reasons:
“There are 4 questions remaining in this group with respect to the analysis, communications and review process by WCC with respect to the approximately 2,700 RFIs received by WCC (Refusals #74-#77). While the RFIs are relevant, the issue is that TTC’s requests are broad and in many cases, disproportionate particularly considering that WCC has already explained how the RFI process worked and produced the RFI log. Notwithstanding the amounts claimed, to order the production of all that is sought is disproportionate and it is not clear what all this would add. As a start, I am satisfied that WCC’s proposal for TTC to identify 10 RFIs from the RFI log and WCC will make reasonable inquiries and best efforts to obtain and produce the internal analysis, communications and relevant documents created when they reviewed the 10 RFIs in question is a reasonable, proportionate start. TTC shall identify the 10 RFIs within 15 days and WCC shall respond within 30 days.” (February 2019 Reasons at para. 90).
[33] Given that over 2,700 RFIs are listed in the RFI log, consistent with proportionality, I directed TTC to propose a sample for production (August 13, 2020 Endorsement, para. 13). TTC proposed a sample of 100 RFIs for production while WCC claimed that 20-30 was sufficient. Given the significant narrowing from 2,700, I then directed the parties to discuss a compromise between 30 and 100 and that the court’s assistance should not be necessary (October 23, 2020 Endorsement, para. 9). In a further effort to obtain additional information, WCC made inquiries of its subcontractors with respect to any RFI logs or other documentation. Notwithstanding these efforts, the parties remain unable to agree on a sample number. In order to sufficiently canvass this issue, I am satisfied that it is reasonable and proportionate for WCC to make the necessary inquiries and relevant productions with respect to 75 RFIs as identified by TTC from the RFI log. No further directions from the court should be necessary.
[34] Schedule Documents on WCC’s Server (Item 19, WCC 2019 Refusals) – This item relates to TTC’s request for what type of schedule documents are on WCC’s server. In the February 2019 Reasons, WCC agreed to make best efforts to identify, in broad categories, the kinds of documents available on WCC’s server so that TTC could consider more targeted, specific requests (February 2019 Reasons, para. 94). TTC asked Mr. O’Connell additional questions on his follow-up examination, WCC advised of the types of documents which were available and the only remaining issue in dispute is WCC’s refusal to produce “what-if” schedules related to electrical work, revised construction plans and schedules and new baselines. WCC states that the “what-if” schedules are hypotheticals which show what WCC projected, expected or what could have happened at different points in time. WCC submits that these are not relevant, do not form the basis for any of its claims and WCC is not relying on them for the purposes of its schedule analysis. In my view, there is limited probative value to the “what-if” schedules particularly given the significant relevant documentation already produced and forthcoming expert evidence. The schedules do not need to be produced.
[35] O’Connell Schedule Review Notes (Item 9, WCC 2018 Deficient Answers) - TTC requested Mr. O’Connell’s notes and records including any other records of Mr. O’Connell with respect to the P6 schedule review. WCC has advised and confirmed that it has produced all of Mr. O’Connell’s notebooks, that any notes with respect to the P6 schedule review are contained in his notebooks and that there are no further relevant notes and records to produce. This is a complete answer and no further efforts are required.
[36] Documents Re: Additional Costs and Plan Of Operations (Items 586, 590, 626, 627, 628 WCC 2018 Deficient Answers) – These items relate to TTC’s request for additional information and documentation with respect to WCC’s claims at paragraphs 70-78 (delay by TTC utility contractors), 116 (scope of work re: electrical substation) and 57 (reliance on TTC and Contract) of its Statement of Claim. With respect to paragraphs 70-78 and 116 (Items 586 and 590), WCC has advised that it did not isolate the specific costs incurred during the Original Contract Performance Period and the Extended Contract Period but that the total cost is set out at Item 5 of its Scott Schedule. I am satisfied that this a complete response to these requests. Items 626-628 relate to TTC’s requests for the production of the documents and records which constitute the plan of operation referred to at paragraph 57 of WCC’s Statement of Claim. WCC states that its plan of operation is set out in 41 pages of the Red Book and that it has previously advised that the plan of operations was based on the Contract documents and the baseline schedule and other documentation, all of which are in TTC’s possession, and that there are no further specifics or documents to provide. I am satisfied that these items do not raise additional production obligations. What is required is for WCC to identify and clarify the documents which comprise the plan of operations. To the extent to which it has not already done so, WCC shall provide a list of all documents produced to TTC which comprise the plan of operations.
[37] Additional Errors, Omissions or Discrepancies in Contract Documents (Item 49 WCC 2019 Deficient Answers) – WCC undertook to advise of any further errors, omissions or discrepancies identified in the Contract documents by Mr. Emerick during the bid phase other than those identified. WCC responded by providing references to numerous documents and correspondence, however, TTC took the position that it was non-responsive and did not identify errors, omissions or discrepancies. There have been multiple exchanges including additional information from WCC. WCC has confirmed that it has nothing else to advise and previously undertook to provide any further information or documentation at least 180 days before trial. This is a sufficient response and no further steps are required.
[38] Pearson Documents Re: Saddle Slab – In the February 2019 Endorsement, WCC was ordered to make inquiries with respect to 12 documents created by Pearson, WCC’s scheduling consultant, related to Pearson’s schedule analysis of the saddle slab re-sequencing in the Summer of 2014. TTC subsequently advised that the reference to 12 documents appeared to be a typographical error in the transcripts. WCC advised that in Summer 2014 it directed Pearson to re-sequence the saddle slab pours and related activities for the purpose of preparing WCC’s monthly schedule update and that WCC modified the sequence of the pours on this basis. WCC also advised that it was in possession of email correspondence related to Pearson’s work. TTC requested production of the email correspondence and WCC refused. WCC submits that the email correspondence between WCC and Pearson is not relevant to the issues in dispute and that it has provided TTC with all schedule updates including the one which modified the sequence of the pours.
[39] The parties had further discussions, the disputed issues were addressed during case conferences and WCC agreed to produce documents satisfactory to TTC with respect to Pearson (September 12, 2020 Endorsement at 5). WCC produced additional documentation including some correspondence between WCC and Pearson up to August 13, 2014. TTC advised by letter dated January 22, 2021 that WCC’s productions were deficient and requested that WCC produce any agreement between WCC and Pearson; advise if any further detailed review was undertaken by Pearson as recommended in an email dated August 1, 2014 from Pearson to WCC and any related documentation; advise if WCC responded to Pearson’s emails dated August 1, 2014 and August 13, 2014; any other relevant documentations related to Pearson’s work on the Project and any relevant non-privileged documentation regarding Shahram Foroutan’s files related to the Project including Pearson’s work. WCC submits that it has produced all relevant documentation and has nothing further to produce.
[40] I disagree with WCC that any additional documentation is not relevant only because it was created after August 2014 particularly since the correspondence produced anticipated a response and further steps. I further reject WCC’s submission that TTC has expanded the scope of its line of questioning. Again, some of these subsequent requests are proper questions arising from documents produced and further information provided which is consistent with discovery and case management. However, not all of the documentation and information which TTC seeks is relevant and proportionate and its request has not been sufficiently narrowed.
[41] In my view, it is reasonable in the circumstances for WCC, to the extent to which it has not already done so, to produce any responding correspondence from WCC to the August 1 and August 13, 2014 emails; advise of any further reviews undertaken by Pearson arising from the recommendations in Pearson’s August 1, 2014 email and identify any relevant documentation generated; and confirm if all of Mr. Foroutan’s relevant documents have been produced.
WCC’s Motion
[42] TTC Liquidated Damages Claims – WCC requests the time periods for TTC’s claims for liquidated damages against its contractors at the other 5 TYSSE stations. WCC submits that this is relevant to TTC’s counterclaim against WCC for delay and WCC’s defence that the amount claimed by TTC for liquidated damages under the Contract is a penalty and not a genuine pre-estimate of damages. WCC submits that the delays at other stations contributed to the overall delay of the TYSSE including SW. TTC submits that only the delay at SW is relevant to its counterclaim against WCC. In my view, delays at other stations could have impacted the overall delay with the TYSSE and by extension, SW which is in turn is relevant to TTC’s claims for liquidated damages for this delay. The time periods for the claims at other stations are probative of the overall TYSSE delay and in turn the delay at SW including any overlap. TTC shall produce this information.
IV. Disposition and Costs
[43] Order to go on the terms set out above. Counsel may schedule a telephone case conference if they wish to speak to the terms of these Reasons and my orders and directions and/or seek further directions.
[44] As set out in my Endorsement dated March 11, 2021, a telephone case conference may also be scheduled to speak to a process for determining the costs of all motions before me in these proceedings.
Reasons Released: July 14, 2021
Master M.P. McGraw